PER:
Nidhi Verma, Member
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11 and 12 against the opposite parties on the allegations that the complainant purchased one mobile set i.e. Samsung DEF Glaxy A7 IMEI No. 352811081774204 from the opposite party No. 1 who is authorized dealer of Samsung Company worth Rs. 19,800/- vide invoice No. 18080 dated 7.6.2017. The impugned mobile set purchased by the complainant was further duly insured with the opposite parties No. 2 and 3 for a period of one year and in this respect premium to the tune of Rs. 1169/- was paid by the complainant and the same was received by the opposite party No. 2 being agent of the opposite party No. 3 vide payment receipt / ID No. MOJ07808005A95763269 dated 8.8.2017 from the complainant covering the insurance of mobile under MA Damage NonApple D2C18k-24k covering all kind of damages to the mobile or any loss etc. free of costs and in this respect membership ID No. 1001746594 was generated but in this respect no separate policy or terms and conditions or any other documents containing terms and conditions of this contract were supplied to the complainant. The opposite parties No. 2 and 3 are having tie up with each other and they provide insurance facility jointly to its customers and the opposite party No. 2 is doing its business at Amritsar through opposite party No. 3. On 25.8.2017 the mother of the complainant was admitted in hospital and at that time the mobile set of the complainant was got damaged while it was placed on charger on mobile tray very carefully and with proper care and it was charging and even there was no other charging point in the room and even the phone battery was critically low and the other family members of the complainant were calling on the mobile for inquire about the critical position of the mother of the complainant. Thereafter the opposite party No. 2 was also informed about damage of impugned mobile set on 25.8.2017 i.e. on the same very day vide service request i.e. on the same very day vide service request number 2277636 and in this respect the opposite party No. 2 through e-mail also acknowledged the intimation being received from the complainant and even the opposite party No. 2 also collected the damaged device alongwith claim from duly filled from the complainant and it was also acknowledged by the opposite party No. 2 vide e-mail dated 2.9.2017 regarding receiving of damaged mobile set and other documents etc. from complainant. To the utter surprise, the complainant was shocked to receive an e-mail dated 14.9.2017 from the opposite party No. 2 that claim of the complainant was rejected by the opposite party No. 3 though the alleged rejection was based on vague, ambiguous and without any plea and on flimsy grounds and even the alleged terms and conditions were never supplied or communicated to the complainant and as such, the same are not applicable to the complainant and even otherwise there is no negligence on the part of the complainant on account of the reasons as stated above. Keeping in view the aforementioned facts and circumstances of the case and provisions of law on the relevant subject it becomes quite evident that the opposite parties No. 2 and 3 have rejected the claim of the complainant on false and flimsy grounds. The complainant suffered a lot on account of the fraudulent and dubious acts on the part of the opposite parties No. 2 and 3 and he is virtually entitled to claim compensation from the opposite parties to claim compensation from the opposite parties to the tune of Rs.60,000/- for the trauma faced by him in the face of nefarious activities, act and conduct on the part of the opposite parties No. 2 and 3 and it shows the gross carelessness, negligence, deficiency in service and unfair trade practice on the part of the opposite parties. the impugned mobile set was purchased at Amritsar and even impugned insurance was also obtained by the complainant from the opposite party No. 2 and 3 at Amritsar and the requisite premium was also paid at Amritsar and the complainant is consumer of the opposite parties. The complainant has prayed as under:-
(a) The opposite parties may kindly be directed to get the mobile set of the complainant repaired from the authorized service centre of Samsung free of cost or to pay the repair estimate of Rs. 8,863/- or in the alternative to pay the price of the mobile set i.e. Rs. 19,800/- to the complainant.
(b) The complainant may also be awarded compensation of Rs. 60,000/- to the complainant.
(c) The cost of the complaint may also be awarded to the complainant alongwith counsel’s free and litigation expenses to the tune of Rs. 10,000/-.
3 After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by interailia pleadings that the present complaint is not maintainable against the opposite party no. 1. The opposite party No. 1 is only an authorized mobile dealer of Samsung Company and it has no personal knowledge about the insurance of the impugned mobile set by the complainant from opposite party Nos. 2 and 3. The complaint is bad for non joinder of the necessary party i.e. the manufacturer who is under duty and obligation to take care of the warranty and guarantee and the products manufactured by them. The complaint is bad for mis joinder of the parties as the same is not maintainable in any form against opposite party No. 1. The transaction of sale on the part of the opposite party No. 1 stood duly completed when the defect free product was delivered to the complainant. The complainant purchased one mobile set i.e. Samsung DEF Galaxy 47 IMEI No. 352811081774204 from the opposite party No. 1 worth Rs. 19,800/- vide invoice No. 18080/- dated 7.6.2017. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.
4 The opposite party No. 3 appeared through counsel and has filed written version by interalia pleadings that the present complaint is legally not maintainable against opposite party No. 3 as the complainant and opposite party No. 2 have failed to furnish copy of insurance policy. National Insurance Co. Ltd. is having its offices at numerous places in different states and different offices of National Insurance Co. Ltd. are having different tie ups with different companies and unless the copy of insurance policy is supplied opposite party No. 3 cannot comment about tie up of National Insurance Co. Ltd. with One Assist Consumer Solution Pvt. Ltd. and moreover, without copy of insurance policy the opposite party No. 3 cannot verify if any insurance policy has been issued by it or not. The complainant has failed to place on record requisite detail particulars and further failed to place on record any cogent and convincing material supported with documentary evidence in order to substantiate the pleas as alleged in the complaint and the present complaint being based on vague, ambiguous allegations merits dismissal on this simple score only against the opposite party No. 3. The opposite party No. 3 has filed application Under Section 151 C.P.C. for supplying copy of insurance policy wherein complainant has submitted that he does not have copy of insurance policy and opposite party No. 2 is in possession of copy of insurance policy but opposite party No. 2 has been proceeded exparte and the same has been disposed vide order dated 16.7.2019. The present complaint is an abuse of process of law as it seems that the same has been filed only to harass the opposite party No. 3. The opposite party No. 3 has been unnecessarily impleaded without any cause of action and even otherwise keeping in view the facts and circumstances of the case no liability can be fastened upon the opposite party No. 3 and as such the present complaint merits dismissal. The complainant and opposite party No. 2 have failed to furnish the copy of insurance policy. The opposite party No. 3 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith written version the opposite party No. 1 has placed on record affidavit of Manav Umat Senior Divisional Manager, Ex. OP3/1.
5 Notice was issued to the opposite party No. 2, but the opposite party No. 2 did not appear despite service, therefore, the opposite party No. 2 was proceeded against exparte.
6 Previously, the opposite party No. 1 appeared through counsel but later on none has appeared on behalf of opposite party No. 1, consequently, opposite party No. 1 was proceeded against exparte.
7 To prove the case of complainant, Ld. counsel for the complainant has tendered in evidence affidavit of complainant Ex. C-1 alongwith documents Ex. C-2 to Ex. C-10 and closed the evidence.
8 We have heard the Ld. counsels for complainant and the opposite party No. 3 and have gone through the record on the file.
9 The case of the complainant is that he purchased one mobile set – Samsung DEF Galaxy A7 IMEI NO. 352811081774204 from OP No. 1 who is authorized Dealer of Samsung company worth rupees 19,800/- vide Invoice number 18080 dated 07.06.2017. The mobile set was further duly insured with the opposite parties number 2 and 3 for a period of one year and in this respect premium to the tune of rupees 1169 was paid by the complainant and the same was received by the opposite party number 2 Being an agent of opposite party number 3 receipt number MOJO 808005A95763269 dated 8 August 2017. The insurance of mobile under MA damage non apple D2 see 18K- 24 K covering all kind of damages to the mobile or any loss etc. free of cost And in this respect Membership ID No. 1001746594 was generated but in this respect no separate policy or terms and conditions of this contract were supplied to the complainant. On dated 25.08.1017 the mother of the complainant was admitted in hospital and at that time the mobile phone of the complainant got damaged while charging. Thereafter the OP No. 2 was informed about damage of mobile set on dated 25th August 2017 vide service request number 2277636 and in this respect the OP No.2 through e-mail also acknowledge the intimation being received from the complainant and even the OP No.2 also collected the damaged device along with claim form duly filled by complainant and it was also acknowledged by the OP No.2 vide e-mail dated 02.09.2017 regarding receiving of damaged mobile phone.( EX C6 & C7). On dated 14.09.2017 complainant received e-mail from OP No.2 that claim has been rejected by OP No. 3 though the alleged rejection was based on under “EXCLUSION 10—loss or damage caused by incorrect storage, willful negligence ” (Annexure Ex C-8.) But the alleged terms and conditions were never supplied or communicated to the complainant and as such, the same are not applicable to the complainant and even otherwise, there is no negligence on the part of the complainant. OP No.3 stated in their written version that the OP No 3 has filed application u/s 151 CPC for supplying copy of insurance policy wherein complainant has submitted that he does not have copy of insurance policy and OP No 2 has been is in possession of copy of insurance policy but OP No.2 has been processed ex parte. Further National Insurance Co. Ltd. is having it’s offices at numerous places in different states and different offices of National Insurance Co. Ltd are having different tie ups with different companies and unless the copy of insurance policy is supplied replying OP cannot comment about tie up of OP No 3 with OP No 2 and moreover without copy of insurance policy OP No 3 cannot verify, if any insurance policy has been issued by it or not. Further in applications under section 151 CPC OP No 3 pleaded that they had earlier filed application for supplying insurance policy/cover note but the complainant has not provided the copy of insurance policy till date and neither OP No 1 has provided copy of insurance policy and OP No 2 has been processed ex-parte .
10 We have heard the Ld. counsels and have gone through the documents on record. The only defence of the OP No 3 is that the complainant and opposite parties fail to produce copy of insurance policy for the period covering the alleged damage to the mobile in question but complainant in their written arguments pleaded that the malafide conduct of the insurance company can be well judged that in the present case the OP despite filling the written statement filed the application under section 151 CPC whereas the insurance company has not denied the case of the complainant and even it is not the case of the insurance company till date that they are not having any tie up with OP No 2. Even the malafide conduct of the NIC can be well judged from the document i.e. one assist mobile service description and term and condition Ex.C-10 that OP No 2 i.e. “ One assist as a Group Manager on behalf of the customer has arranged an insurance cover with the NIC ”. is proved that the opposite party No. 3 having tie up with the OP No 2 for the insurance coverage of the mobile of the complainant. The stand of the counsel for the complainant is that at time of the purchase of the insurance policy, neither the literature of the insurance policy nor the terms and conditions as well as exclusion clauses of the insurance policy have been supplied or explained to him by OP No 2 and 3. Further as per the documents on record the e-mail sent by one assist team for repudiation of the claim (Ex C-8) stated the reason as :- under EXCLUSION 10 -loss or damage caused by incorrect storage ,willful negligence. Moreover OP No 3 in their plea stated that the copy of insurance policy has not been provided neither by the OP No.1 nor by the OP No. 2. Hence opposite parties fail to produce copy of insurance policy for the period covering the alleged damage to the mobile in question , the name of the OP No 3 was deleted from the array of Opposite parties. However as an evidence that complainant purchased the insurance policy document attached as (Ex. C-3 & Ex. C-4). In this view of the matter , we are of the considered view that OP No 2 , who issued the insurance policy, as an agent /intermediary of the insurance company, is the best person to explain the position as to whether the complete kit containing terms and conditions of the insurance policy or the exclusion clauses were ever supplied or explained to the complainant but it preferred to proceed ex-parte despite due service through registered post and as such adverse inference is drawn against the opposite parties that the complainant was never explained or supplied the terms and conditions of the insurance policy. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally. It was thus, the duty of the opposite parties to disclose all the facts and circumstances, relating to the insurance cover to the complainant. It was also required to the opposite parties, to apprise the complainant of the benefits of insurance , exclusion clauses ,contained therein and the warranties referred to in the same. Our view is further fortified by the judgment of the Hon’ble National Commission in the case titled as 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modern Insulators Ltd Vs The Oriental Insurance Company Ltd, wherein Hon’ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Furthermore, It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of DharmendraGoel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
In this view of the matter , the rejection of the genuine claim by Opposite party No. 2 and 3 amounts to deficiency in service on their part .
11 In view of above discussion, the present complaint deserves to be allowed. It is directed to O.P.2 and .OP.3 to get the mobile set of the complainant repaired free of costs to the satisfaction of the complainant. Complaint against the opposite party No. 1 is dismissed. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
29.07.2022
