BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.483 of 2016
Date of Instt. 13.12.2016
Date of Decision:16.01.2018
Arun Mehta S/o Sh. Narinder Dev Mehta R/o H. No.EJ-327, Riazpura, Central Town, Jalandhar.
..........Complainant Versus
1. Unicom Smart Suraksha, SCO 7, 2nd Floor Sector 17-E, Chandigarh Through its Mg. Director/Partner/Authorized Person.
2. Mobile House, H.O. Chadha Mobile House, Near Bhagat Singh Chowk, Phagwara Gate Jalandhar through its Partner/Prop.
3. New India Assurance Co. Ltd., SCO.30-31, Guru Ram Dass Divine Tower, PUDA Complex, Jalandhar.
..….…Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Complainant in person.
OP No.1 and 2 exparte.
Sh. AK Arora, Adv. and Sh. Nitish Arora, Adv Counsels for the OP No.3.
Order
Karnail Singh (President)
1. This complaint filed by the complainant, wherein stated that the complainant purchased a Samsung Mobile Core Prime 4G No.357690060646277, for Rs.8400/-, vide invoice No.52187 dated 13.01.2016 from OP No.2. The complainant also got the insurance of said mobile through OP No.2, vide invoice No.52188 dated 13.01.2016 by paying Rs.749/- to OP No.2 under the name Unicom Smart Suraksha issued by New India Assurance Co. Ltd, vide policy No.35020046141100002600. The complainant was owner of the Samsung Core Prime 4G Mobile and having a connection of BSNL. The complainant went to Jalandhar Railway Station on 01.02.2016 in the morning time to board Shatabdi Train for Ambala alongwith his brother Pawan, who went with complainant to board him up to train. When the complainant came out of the Queue at ticket counter after getting Platform for his brother, he noticed that some unknown person have picked his jacket pocket and took up above said mobile alongwith Shatabdi ticket having PNR No.2414387068. The mobile of the complainant was stolen by some unknown person on 01.02.2016 at Railway Station, Jalandhar. The complainant tried his best to trace the phone and also inquired about some persons, but did not get any information or clue of the said mobile, the complainant also rang up on the said phone from other number, but it was switched off, as such, gave immediate intimation of the theft to the Railway Police, Jalandhar and after due verifications police lodged DDR No.50 dated 03.02.2016 and theft case of the complainant was investigated with FIR No.14 dated 29.01.2016 u/S 379 IPC, Railway Police, Jalandhar.
2. That the complainant also intimated the OP No.2 and the complainant came to know that claim of the complainant has been repudiated on the ground that intimation was not given within 48 hours, though intimation was given within 48 hours to the police and OPs. The complainant has submitted a claim and also sent number of emails with a request to settle the claim, but the OPs have given no reply to the same. The claim of the complainant has been repudiated arbitrarily and wrongly and due to the illegal repudiation of the claim of the complainant by the OPs, the complainant suffered mental tension, harassment and agony at the hands of the OPs for their deficiency in service and unfair trade practice for which OPs jointly and severally are liable to pay the price of the insured mobile phone, damages and litigation expenses and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the price of the mobile i.e. Rs.8400/- alongwith damages of Rs.20,000/- and litigation expenses of Rs.10,000/-.
3. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared and filed a written statement, whereby contested the complaint by taking preliminary objections that the present complaint is liable to be dismissed out rightly because the complaint is totally vague, imaginary, hypothetical and ambiguous. Therefore, the same is liable to be dismissed with heavy costs and further averred that the complainant is estopped by his own act, conducts, admission and omissions from filing the present compliant and even the complaint of the complainant is not maintainable under the law and further alleged that the complainant has no cause of action against the OP No.1. It is further averred that the OP No.1 is dragged in the present complaint un-necessarily. If there is any claim that is to be paid and settled by the OP No.3 because OP No.1 has taken insurance policy from OP No.3. The OP No.1 is not directly liable for settlement of the insurance claim. On merits, the averments made in the complaint are admitted to the extent that the complainant purchased an insurance policy through OP No.1 from OP No.3, but the remaining allegations have been denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
4. After filing the written reply, the OP No.1 did not appear and ultimately, OP No.1 was proceeded against exparte, whereas OP No.2 also served, but despite service, OP No.2 did not come present and ultimately, OP No.2 was also proceeded against exparte.
5. The OP No.3 served and appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that there is no deficiency of service and unfair trade practice on the part of the answering OP and as such, the complaint is not maintainable and even no cause of action accrued against the OP No.3. The complainant has breached the terms and conditions of policy of insurance i.e. has given late intimation to the company regarding the theft of the mobile. As per the terms and conditions of policy of insurance, an immediate intimation about loss should be given to Gold Key Insurance Brokers and the SIM Service is to be got barred within 48 hours from the date of loss. In the present case, the theft of the mobile phone occurred on 01.02.2016 and was reported to Gold Key Insurance Brokers on 05.02.2016. As per policy terms and conditions, Section 6 claim procedure i.e. claim has to be intimated to the GIB within 48 hours and also in case of theft of the mobile, the SIM service to be deactivated within 48 hours, but as per the documents submitted by the complainant, the intimation was given on 06.02.2016 and as such, there is no deficiency of service or unfair trade practice on the part of the answering OPs and thus, the complaint is liable to be dismissed. On merits, the factum in regard to purchase of the insurance policy by the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove his case, the complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-11 and closed the evidence.
7. Similarly, counsel for the OP No.3 tendered into evidence affidavit Ex.OP/A alongwith some documents Ex.OP-1 to Ex.OP-3 and then closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. In nutshell, the factum in regard to purchase of the mobile phone, model Core Prime 4G, for a sum of Rs.8400/- on 13.01.2016 from OP No.2, is not in dispute and even the factum in regard to purchase of insurance policy from OP No.3 through OP No.1 is also not denied by the contesting OP i.e. OP No.3 as well as by OP No.1. It is also admitted by the insurance company i.e. OP No.3 that the claim of the complainant has been received in regard to theft of the mobile, but the same was repudiated. So, it means the question remains only whether the claim of the complainant is rightly and legally repudiated by the OP No.3/Insurance Company or not, regarding that the plea taken by the OP No.3, in the repudiation letter Ex.OP-2 that the intimation in regard to theft has been given by the complainant, after the stipulated period of 48 hours, which is mandatory as per terms and conditions of the insurance policy and terms and conditions of the policy are placed on the file by the OP as Ex.OP-1. Now, we have to adjudicate the matter in issue on the basis of the evidence, bring on the file by both the parties, admittedly the complainant has brought on the file his own affidavit Ex.C-1, wherein categorically stated in para No.5 that he had also given intimation to OP No.2 in regard to theft immediately, no doubt, the OP No.2 is the dealer, where from the complainant purchased the mobile, but as per the version of the complainant, he got the insurance from OP No.2 and paid the insurance premium, vide receipt Ex.C1 for an amount of Rs.749/- and this version of the complainant is fully corroborated with the receipt of premium of the insurance, apparently issued by the OP No.2, so if intimation is given to the agent of the insurance company, then it presume that the intimation has been given to the insurance company, moreover, in reply to para No.4 of the complaint, wherein the complainant alleged that he gave immediately intimation in regard to theft to OP No.2, the OP No.1 as well as OP No.3 in its respective reply, have not specifically denied this factum, if so then, it is presume that the same has been admitted. So from this angle it is clear that the intimation in regard to theft was given by the complainant immediately after the theft. These observations are further corroborated with some other documents i.e. email letter sent by the OP No.3/Insurance Company to the complainant, copy of the same is Ex.C-11, whereby the OP No.3 asked the complainant to submit claim document within 5 days, but for the best known reason, the date has not given on the said letter Ex.C-11 by the OP No.3. So, in the absence of date on this letter, it is presume the said letter was sent by the complainant on 02.02.2016 and accordingly, the complainant submitted the claim on 05.02.2016 as mentioned in the repudiation letter Ex.OP-2 in its bottom, so, from this angle, it is clearly established that the intimation was given by the complainant immediately to the insurance company and the allegations made in the repudiation letter is virtually without any supporting documents, therefore, the plea taken by the OP No.3 that the intimation was given after 48 hours, is not established in any manner.
10. Apart from above, we have also considered the submission of the learned counsel for the OP No.3 that as per terms and conditions, the intimation must be given within 48 hours from the date of theft of the mobile and copy of the term and condition has been placed on the file by the OP No.3 as Ex.OP-1, but if the said terms and conditions were not supplied to the complainant, then how the complainant is bound by these terms and conditions, we find that it is primary duty of the insurance company to bring on the file some documentary evidence, where from it can be construed that the said terms and conditions were supplied to the complainant, but there is no such type of document and as such, we are of the considered opinion that the said terms and conditions are not applicable or binding upon the complainant.
11. In view of the above detailed discussion, we find that the complainant is able to prove his complaint and accordingly, we reach to conclusion that the complainant is entitled for the insurance claim and accordingly, the complaint of the complainant is partly accepted and OP No.3 is directed to pay the price of the mobile i.e. Rs.8400/- alongwith interest @ 9% per annum from the date of theft of mobile i.e. 01.02.2016, till realization and further, OP No.3 is directed to pay a compensation to the complainant for mental harassment, to the tune of Rs.7000/- and also directed to pay litigation expenses of Rs.3000/-. The entire compliance be made within one month from the date of receipt of the copy of order. The complaint qua OP No.1 and 2 is without merits, therefore the same is dismissed. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
16.01.2018 Member President
