BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^th of September 2010

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER                

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.86/2010

(Admitted on 9.3.2010)

Mr. Valerian DSouza,

So late Albert DSouza,

Aged 52 years,

Rat. D.No.10 35 1,

Poovappa Compound,

Nekkaremar, Kankanady,

Mangalore 575 002.                                   …….. COMPLAINANT

(Advocate for the Complainant: Sri.K.B.Arasa)

          VERSUS

1. The Univercell,

Univercell Telecommunications

India Pvt. Ltd., Inland Avenue,

Opp. Hero Honda Showroom,

Kodialbail,

Mangalore 575 003.

2. The New India Assurance Co. Ltd.,

H.O.No.87, M.G.Road,

Post Mumbai,

Divisional Office Centenary Building,

2^nd Floor, G.H.S. road,

Mangalore-575 001.                   ……. OPPOSITE PARTIES

(Opposite Party No.1: Exparte)

(Advocate for the Opposite Party No.2: Sri. Anil Kumar.K.)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant on 23.10.2008 purchased a new Nokia Mobile hand set model No.5220, No.353662012435467 from the 1^st Opposite Party and paid Rs.8,000/- as per Tax Invoice UKA 173438.  It is stated that, the 1^st Opposite Party received Rs.200/- for insurance coverage.  It is stated that, even after request, 1^st Opposite Party not issued insurance policy and informed the Complainant that if anything is happen to the said mobile, asked the Complainant to approach the 1^st Opposite Party.

It is stated that, on 16.9.2009, while Complainant was traveling in the city bus between 7.30 P.M. to 8 P.M., he has lost his mobile.  On 17.9.2009, the Complainant lodged a Complaint to the Station House Officer, Mangalore for missing of the handset.  Thereafter, the Complainant approached the 1^st Opposite Party, inturn Opposite Party issued claim form and asked the Complainant to submit to the Opposite Party No.2.  On 19.9.2009, Complainant submitted the Claim Form to the Opposite Party No.2.  But Opposite Party No.2 not responded nor honoured the claim of the Complainant.  The Complainant approached several times but there is no response from the Opposite Parties.  Hence, it is contended that, the Opposite Parties committed deficiency in service and filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties for payment of Rs.8,000/-, i.e. value of the Mobile handset along with interest at 15% per annum and also pay compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party No.1.  The acknowledgement placed before the FORA marked as court document No.1.

Opposite Party No.2 appeared through their counsel filed version and denied the insurance policy to cover the risk of the theft or damages to the handset purchased by the Complainant.  It is stated that, the Algeion Insurance Broking Ltd., is not an agent for this Opposite Party nor collected nor paid premium for issue of a policy either in favour of Opposite Party No.1 or the Complainant.  It is stated that, the Opposite Party No.1 nor the Complainant is a consumer of this Opposite Party and contended that the Complaint is devoid of merits and prayed for dismissal of the Complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant is a consumer?

2. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Mr.Velerian D’Souza (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C9 were marked for the Complainant as listed in the annexure.   One Mr.P.Narasimha Prabhu (RW1), Administrative Officer of the Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him.  Ex R1 to R4 were marked for the Opposite Party as listed in the annexure.  Both parties are produced notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:                                                        Point No.(i): Affirmative.

                              Point No.(ii): Affirmative.

                             Point No.(iii) & (iv): As per the final order.      

REASONS

5.  POINTS NO. (i) to (iv):

From the out set of the records available on the file of this Forum, we find that, on 23.10.2008, the Complainant purchased a new Nokia Mobile Handset by paying Rs.8,200/- to the 1^st Opposite Party as per Ex.C1.  It could be seen on the Tax Invoice issued by the 1^st Opposite Party dated 23.10.2008, it reveals that, Rs.8,000/- was received towards the Nokia Handset and Rs.200/- received by the 1^st Opposite Party towards the insurance coverage.

Now the point in dispute between the parties before this Forum is that, the Complainant contended that, the 1^st Opposite Party at the time of purchase of the New Nokia Handset received Rs.200/- towards the insurance cover but not issued the policy, informed the Complainant that if anything is happening  to the said mobile to approach them.  On 16.9.2009, while Complainant was traveling in the city bus, he has lost his mobile and registered a Complaint to the Station House officer, Bunder Police Station as per Ex.C2 and the said police issued an endorsement as per Ex.C3.  Thereafter, the Complainant approached the 1^st Opposite Party and the 1^st Opposite Party issued theft and damage insurance claim Form and asked to submit the same to the Opposite Party No.2.  Accordingly, the Complainant submitted the Claim Form with all original documents to the Opposite Party No.2 through Algeion Insurance Broking Ltd., Chennai.  But there is no response from the Opposite Parties.  Hence came up with this Complaint.

Opposite Party No.1 who is the dealer of the above said Mobile Handset despite of receiving version notice from this Forum not appeared nor bothered to contest the case.  Opposite Party No.2 though appeared but denied the insurance policy and the relationship between the Complainant and the 2^nd Opposite Party and contended that the Complainant is not a consumer of the Opposite Party No.2.

On careful scrutiny of the above mentioned documents, it is proved beyond doubt that, the Complainant purchased the new Nokia Mobile Hand set from the Opposite Party No.1 who is the authorized dealer of the above hand set received Rs.8,200/- from the Complainant by specifically mentioning on Tax Invoice that Rs.200/- received towards the insurance coverage and Rs.8,000/- towards  the price of the Handset.  The Ex.C4 is the Claim Form issued by the 1^st Opposite Party clearly reveals that, the above said handset was insured with the New India Insurance Company Limited Registered and Head Office at Mumbai.  The Opposite Party No.2 being a divisional office cannot contend that the above said handset is not insured with them.  The Ex.C4 is sufficient to hold that the handset was insured with the New India Insurance Company Limited.  The Claim Form and other documents as well as the correspondences, the Complaint lodged by the Complainant before the Bunder Police Station reveals that, the Complainant has lost his Mobile Handset while he has traveling in a bus and the same has not been traced.  Admittedly, the theft was taken place on 16.9.2008 i.e. within one year from the date of purchase of the mobile handset in other words, during the validity of the insurance policy.

We observed that, the Complainant has lost his mobile and the same has not been traced and the said handset covered under the insurance policy.  As per the policy the Complainant entitled the entire amount paid by him in case of theft/loss.  But, in the instant case, the Opposite Party No.2 being the insurer raised his hand stating that the Complainant is not a consumer of the 2^nd Opposite Party.  It need not be a consumer of 2^nd Opposite Party, it is sufficient to hold that, the Complainant is insured with the New India Insurance Company anywhere in India.  The Complainant admittedly insured with the New India Insurance Company Limited Registered and Head Office at Mumbai.  Since, the Divisional Office is working within the jurisdiction of this Forum.  The Complaint filed by the Complainant against the Opposite Party No.2 as well as Opposite Party No.1 is maintainable and the Complainant is a consumer.  Non-considering the claim of the Complainant in this case amount to deficiency in service.

In view of the above discussions, we hold that, the Opposite Party No.2  being a insurer is hereby directed to pay Rs.8,000/- to the Complainant towards the loss of the mobile handset and also pay Rs.8,000/- as compensation for the deficiency of service committed by the Opposite Parties.  Rs.1,000/- as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.   

Since, there is no deficiency proved against the Opposite Party No.1, complaint against Opposite Party No.1 is hereby dismissed.

6.       In the result, we pass the following:                                  

ORDER

The complaint is allowed.  The Opposite Party No.2 i.e. the New India Assurance Company Limited represented by Authorized Signatory/Administrative Officer is hereby directed to pay Rs.8,000/-(Rupees Eight thousand only) to the Complainant and also pay Rs.8,000/- (Rupees Eight thousand only) as compensation to the Complainant.  Rs.1,000/- as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order. 

 On failure to make the payment, on such failure the Opposite Party No.2 directed to pay interest at the rate of 9% p.a. on the total amounts due from the date of failure till the date of payment.

Complaint against Opposite Party No.1 is here by dismissed.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of September 2010.)

 PRESIDENT

         MEMBER                                                                MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Velerian D’Souza –Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 20.3.2008: The Tax Invoice copy.

Ex C2 – 17.7.2009: The Copy of the Complaint.

Ex C3 – 17.72008: The receipt give by the Station House Officer, North Police station, Bunder-Copy.

Ex C4 –19.9.2009: The copy of the Claim Form.

Ex C5 –25.9.2009: The Consignment Note given by Tej Couriers.

Ex C6 – The Insurance Contact Numbers given by the Opposite Party No.1.

Ex C7– 8.2.2010.  The Office Copy of the Lawyers Notice.

Ex C8 –10.2.2010: Postal Acknowledgement of Opposite Party No.1.

Ex C9–10.2.2010: Postal Acknowledgement of Opposite Party No.2.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Mr.P.Narasimha Prabhu, Administrative Officer

            of the Opposite Party No.2.

Documents produced on behalf of the Opposite Parties: 

Ex R1 – 8.2.2010: Legal Notice issued to Opposite Party No.2 by the Complainant.

Ex R2 – 10.2.2010: Reply by Opposite Party No.2.

Ex R3 – 23.7.2010: Letter issued by The New India Assurance Company Limited.

Ex R4 – Copy of Acknowledgment.

Dated:30.09.2010                                      PRESIDENT