That due to the act of the opposite parties the complainant suffered irreparable financial loss and injury. After elapsed of petty long time when the complainant did not receive any positive reply from the opposite parties, complainant sent letter to the opposite parties on 26.9.2015, but opposite parties did not give any positive reply. The insurance company did not settle the claim of the complainant. The act of opposite parties making inordinate delay in settling the insurance claim of the complainant and withholding the same, constituted sheer deficiency in service as well as unfair trade practice on the part of the opposite parties for which the complainant has been suffering a long due to mental agony, anxiety and harassment. The opposite parties did not provide proper service inspite of taking service charges from the complainant and not disclosing and/or mentioning the fate of his claim which is within the warranty period and not responding to the legitimate grievance of the complainant.
Finding no other alternative the complainant has compelled to file this case before this Forum and has prayed direction upon the opposite parties to settle the insurance claim of the complainant or to refund the entire amount of the mobile phone with 9% interest from the date of claim and to pay Rs.50,000/- jointly to the complainant towards mental pain, agony and harassment and also to pay Rs.50,000/- to the complainant for litigation cost.
One written version has been filed under the heading ‘Written Objection for and on behalf of the New India Assurance Company Ltd.’
It may be noted that opposite party No.1 is the Sr. Divisional Manager of Khadina More, P.O. & P.S.-Chinsurah, Dist.-Hooghly and Opposite party No.2 is the Sr. Divisional Manager of Bommasandra Branch, Kiadb Complex, Bangalore. Therefore, it appears that opposite party No.1 and opposite party No.1 are part and parcel of New India Assurance Company Ltd.
Be that as it may this Forum now describes the contents of written versions. There has been denial of the material allegations. It is contended in the written version that complainant purchased a mobile phone from M/s. AM Mobile Telecom Private ltd., City Centre, Shop-D111, 1st floor, Salt Lake, Kolakta-64 and he paid Rs.54,585/- towards price of the mobile and in addition he paid to the said AM Mobile Telecom Private Ltd. a further sum of Rs.1,665.71/- for insurance of the said mobile under MOBILITY SOFTWARE Daily Assure Plus covering the risk of the mobile phone. It is clearly mentioned in the sales invoice cum challan dated 17.11.2014 as issued by opposite party No.3 in favour of the complainant that ‘all disputes are subject to Kolkata jurisdiction’ and complainant after accepting such condition purchased and received the same by putting his signature thereon. As the payment towards insurance was paid to M/s. AM Mobile Telecom Pvt. Ltd., so the dispute even on non-settlement of insurance claim is definitely a dispute which would be included in ‘all disputes’ as mentioned in Condition No.6 of terms and conditions as incorporated in the said challan and was duly signed by the complainant.
It is also stated in the written version that it is however admitted that the interest of the complainant in the said mobile set was insured under Mobile Hand Set All Risks Insurance, a package insurance policy wherein Apps Daily Solutions Pvt. Ltd. was the insured. It was an insurance policy of coverage of loss due to theft, burglary, physical damage including fluid damage subject to terms, conditions and exclusions thereof. The complainant got the insurance coverage through Apps Daily Solutions Pvt. Ltd., but the same was not made a party in this case and this case is thus, liable to be dismissed for defect of parties.
It is also stated in the written version that Bommasandra Branch of the New India Assurance Company Ltd. having office at Kiadb Complex, 1st floor, Hosur Main Road, Bommasandra, Bangalore, Pin-562158, issued a policy in favour of Apps Daily Solutions Pvt. Ltd. of D-3137-39, 6th floor, C Wing, Oberoy Garden Estates, Chandivali Firm Road, Andheri(E), Maharasthra at a premium of Rs.177113068/- and the complainant took the insurance coverage through the said insured namely Apps Daily Solutions Pvt. Ltd. subject to terms, conditions and exclusions of the said policy. Under the exclusion clause it is clearly stated that the insurer is not liable for loss, if the documents are found tampered, non-disclosure of material facts, fraud/misrepresentation.
That from the Itemized Calls in respect of Vodafone No.9007810794 as provided by Vodafone it appears that on 1.6.2015 after 07.00 PM the user of the said SIM i.e. complainant made 05 outgoing calls to 919477303391. Then it again appears that on 2.6.2015 after 10.00A.M. or more particularly from 10:20:08 hrs. to 16:39:19 hrs. there were as many as 10 outgoing calls to the same number i.e. No.919477303391 and the duration of the calls were from 01.00 minute to 03.00 minutes and the said calls are all after the alleged theft at 09.30 AM on 2.6.2015 and thus, even if there was any theft the claim was not settled worthy strictly as per the specific exclusion clause as ‘if the documents are found tampered, non-disclosure of material facts, fraud/misrepresentation’, the insurer is not liable for any loss. Thus, in the written version it has been prayed before this Forum to dismiss the instant case with costs.
Upon the above pleadings following points have been framed for determination.
- Whether the complainant is a consumer of the opposite party?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try this case?
- Whether petitioner is entitled to have the amount as claimed for?
- To what other relief, if any is the petitioner entitled?
DECISION WITH REASONS
Point No.1
From the materials on record it transpired that the complainant is “Consumer” as provided by the spirit of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. As the complainant purchased the mobile phone being IMEI No.354378062729431 Model No. Iphone 6 plus-Iphone-7-1, invoice No.2742 dated 17.11.2014 from AM Mobile Telecom Pvt. Ltd. (opposite party No.3) amounting to Rs.54,585/- and at the time of purchased complainant paid Rs.1,665.71/- for issuance of his aforesaid mobile under the head of MOBILITY SOFTWARE Daily Assure Plus covering the risk of his mobile phone under him. So, complainant is certainly a consumer to the opposite parties and this issue is answered in favour of the consumer.
Point No.2
Complainant and opposite parties are resident/ carrying on business or having their District office within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. Hence, this Forum has territorial/pecuniary jurisdiction to entertain and try this case and thus, this point is answered in favour of the complainant.
Point no.3 and 4. Both these points taken up for determination jointly as both the points are related to each other.
In support of allegation of complainant the complainant has filed several copies of documents, wherefrom it reveals that the complainant purchased the mobile in question at the cost of Rs.64,249/-. It also reveals from the copy of sales invoice come challan dated 17/11/2014 showing underheading S.No. 2 “MOBILITY SOFTWARE Daily Assure plus (1749)” and against that head to an amount of Rs. 1665.71/- has been charged. Altogether after paying the tax amount of Rs. 7998.14/- in respect of said mobile in question the complainant has paid net amount of Rs. 64,249/-. Ld. Advocate appearing for the complainant has submitted that Rs.1665.71/- has been paid by the complainant as appearing in the said sales invoice come challan is towards insurance of the said mobile in question. Ld. Advocate of the O.P. nos. 1 and 2 did not raise any objection regarding the copy of the same invoice come challan dated 17/11/2014 submitted by the complainant.
Now, it reveals that complainant filed a copy of Formal F.I.R. in respect of theft of the Mobile set at Hare Street P.S., Kolkata being Hare Street P.S. Case No. 312 of 2015 dated 03/06/2015 U/S 379 of I.P.C.
The main allegation of the complainant is that there was a theft of the said mobile set and the copy of Formal F.I.R. proved in respect of theft of said mobile set.
From the copies of different e-mails including the copy of DEED OF INDEMNITY AND SUBROGATION and copy of letter of complaint by complainant addressed to the Senior Divisional Manager, The New India Assurance Company Ltd. Claiming his claim narrating entire facts including copies of EMS Speed Post are speaking a volume regarding the claim of complainant from concerned insurance company.
Ld. Advocate appearing for the complainant submitted that the entire activities of the ops in not providing proper service inspite of taking service charges from the complainant and not disclosing the fate of his claim which is within the warrantee period constitutes clearly deficiency in service and unfair trade practice. He also added that due to willful negligence, deficiency In service, unlawful activities including deprivation of information on the part of ops, the complainant has so far incurred huge financial loss and has also suffered a lot mental agony, anxiety and unnecessary harassment for no fault of his own and thus, complainant is entitled to get exemplary compensation from the ops in addition to his legal and rightful dues.
Per contra, ld. Counsel appearing for the op nos. 1 and 2 has pointedly submitted that M/S. AM Mobile Telecom Private Ltd. (op no. 3) sold the mobile set in question to complainant and the op no. 3 charged Rs. 1665.71/- for insurance of mobile under MOBILITY SOFTWQARE Daily Assure plus covering the risk of the said mobile set. He also argued that all disputes are subject to Kolkata jurisdiction and as such this case will not come within the jurisdiction of this Forum.
It is also pointedly argued by Ld. Counsel appearing for the op nos. 1 and 2 that as the payment towards insurance was paid to op no. 3, so the dispute even on non-settlement of insurance claim is definitely a dispute which would be included in “ALL DISPUTES” as mentioned in Condition No. 6 of terms and conditions as incorporated in the said challan and was duly signed by the complainant and as such it is clear that this Forum has no jurisdiction to adjudicate this case.
Ld. Counsel for the op nos. 1 and 2 also submit that as the complainant got the insurance coverage through APPSDAILY SOLUTIONS PRIVATE LIMITED, in the alleged non-settlement of the claim, the dispute originally arose against APPSDAILY SOLUTIONS PRIVATE LIMITED, but the same was not made a party in this case and this case is thus liable to be dismissed for defect of parties.
It is also contended by said ld. Counsel that the claim of complainant is not at all legitimate and is totally ambiguous and hence it cannot be relied upon. He also submitted that on 27.7.2015 insurance company sent intimation to the complainant through a letter of repudiation of the claim with explicit reasons.
Ld. Counsel for the op nos. 1 and 2 alleged in respect of Itemised Calls in respect of Vodafone No. 9007810794 and he pointed out that on 1.6.2015 the user of the said SIM i.e. complainant made 5 outgoing calls to +919477303391 after 7 p.m. and on 2.6.2015 complainant made after 10 a.m. 10 outgoing calls to +919477303391 and he also invited the copies of Itemised calls thus, he submitted that if there was any theft, then how such calls were made. Finally he submitted that the complaint should be dismissed with cost.
Regard being had upon the submissions of the ld. Counsel appearing for the parties and going through the materials on record including copies of documents this Forum is of the view that this Forum finds force and spirit in the submissions of ld. Counsel appearing for the complainant, because the relevant copies of documents are certainly proving the case of the complainant. Mere repudiation of claim of complainant by the op nos. 1 and 2 vide letter dt. 27.7.2015 certainly cannot wipe out the claim of the complainant.
Ld. Counsel appearing for the op nos. 1 and 2 though tried to highlights some irregularities, but that cannot hit at the very root of the complainant. The insurance company cannot by-pass the valid claim of the complainant.
It will not be out of place to mention that it is not the duty of insurance company to find out the loop holes of the insured, but it is the duty of insurance company to look into the matter seriously and test the claim of the insure with much more importance so that insured cannot be deprived for any negligible departure.
The series of correspondence including e-mails and other steps on behalf of the complainant clearly and emphatically indicate the claim of the complainant, whereas the ops are trying to shield themselves from making payment of the claim of the complainant keeping a long silence and just touched one/two meaningless and baseless information which practically amounts a total negligence and deficiency in service on the part of ops. Thus, point nos. 3 and 4 are disposed of accordingly.
In view of the above discussion and considering the attending facts and circumstances of the case we have no hesitation to come to a conclusion that complainant has succeeded in proving his case. Thus, the ops are liable to pay compensation etc.
Hence,
it is,
Ordered
that the complaint case being No. C.C. 59 of 2016 be and the same is allowed on contest against the op nos. 1 and 2 and on ex parte against op no. 3 with cost.
Op nos. 1 and 2 are directed to refund the entire cost/ amount of the mobile set (Apple handsets Iphone 6plus-16GB IMEI: 354378062729431) jointly and severally to the complainant as per sales invoice cum challan dt. 17.11.2014 issued by the AM Mobile Telecom Private Ltd. (op no. 3).
Op nos. 1, 2 and 3 are directed to pay jointly and severally Rs. 10,000/- to the complainant towards his mental pain, agony, anxiety and harassment caused by the deficiency in service and acts of unfair trade practice by the ops.
Further op nos. 1, 2 and 3 are directed to pay jointly and severally Rs. 10,000/- to complainant towards litigation cost.
All payments should be made by the op nos. 1, 2 and 3 within 30 days from the date of this order, failing which complainant at liberty to prefer execution proceeding whatsoever etc.
Let a copy of this order be supplied free of cost to the parties/their ld. Advocates on record by hand with proper acknowledgment/send by ordinary course for information and necessary action.
