Univer Cell, Telecommunications India Private ltd., Bangalore V/S Sri. Shamshalam Kashmiri, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/78

Sri. Shamshalam Kashmiri, Raichur - Complainant(s)

Versus

Univer Cell, Telecommunications India Private ltd., Bangalore - Opp.Party(s)

Sri. Shivasharanappa

24 Feb 2011

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/78

Sri. Shamshalam Kashmiri, Raichur						...........Appellant(s)
Vs.
Univer Cell, Telecommunications India Private ltd., Bangalore Alegion Insurance Booking Limited, Bangalore The New India Assurance Company Ltd., Raichur Univercell, Telecommunicatins India Private Ltd., Bangalore						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Shamshalam Kashmiri against the opposite Nos. 1 to 4 U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay the cost of the mobile phone of Rs. 7,175/- and an amount of Rs. 20,000/- as a compensation with interest and cost. 2. The brief facts of the complainants case are that, he purchased NOKIA Mobile Model No. 6300 on 03-01-09 from opposite No-1, who is the authorized dealer of NOKIA Company for Rs. 7,175/- vide Receipt No. UKA 123310 with IMEI, insured with opposite No-4 regarding the loss of mobile by theft or damage. On 05-10-09 he was traveling with the said mobile with him from Sirwar to Nilogal in KSRTC Bus, he noticed the missing of the said mobile phone, thereafter he searched for some time, but not traced out and on 10-10-09 he filed police complaint and thereafter he filed claim petition before opposite No-1 with an intimation to other opposites, but none of them have not settled his claim, they shown their negligence in settling his claim and thereby all opposites found guilty under deficiency in their services. 3. The opposite No. 1 appeared in this case and filed his written version by contending that, the allegations of complainant clearly shows that, the said mobile purchased by him, is missing but, it was not subjected to theft, hence Insurance coverage of opposite No-4 is not applicable to the facts of the case of complainant, complainant is not consumer and thereby it is not maintainable. 4. Opposite No-4 Insurance Company also contended similar contentions and prayed for to dismiss the complaint. 5. Opposite No-2 is placed Ex-parte. Opposite No-3 not appeared before this Forum, but sent its objections through post by contending that, it acted as broker to facilitate the customers of Universal Telecommunication India Private Ltd., Oriental Insurance Company Ltd., is the only authority to settle the claim of complainant. It is not a necessary party to this complaint, accordingly it prayed for to dismiss the complaint among other grounds. 6. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, he purchased NOKIA Mobile Model No. 6300 on 03-01-09 from opposite No-1, who is the authorized dealer of NOKIA Company for Rs. 7,175/- vide Receipt No. UKA 123310 with IMEI insured with opposite No-4 for one year, but he lost the said mobile phone on 05-10-09, while he was traveling in KSRTC Bus from Sirwar to Nilogal, thereafter he filed police complaint and filed claim petition before the opposite No-1 with necessary records opposite No-1 or opposite No-4 Insurance Company or opposite Nos- 2 & 3 not responded to his claim petition, they shown their negligence and thereby, all the opposites found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 7. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 8. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-10 are marked. Written arguments filed. On the other hand affidavit-evidence of opposite No-1 was filed, he was noted as RW-1. No documents filed. Similarly affidavit-evidence of opposite No-4 was filed, he was noted as RW-2. No documents filed on its behalf. Written arguments filed. 9. Opposite No-2 is placed Ex-parte. Opposite No-3 not appeared before this Forum and not filed any affidavit-evidence. 10. In view of the pleadings of the parties, their respective affidavit-evidences and documents, we have noticed some of the following undisputed facts in between the parties are:- 1. It is undisputed fact that, the complainant purchased Mobile set Model No. 6300 from opposite No-1, who is the authorized dealer of NOKIA Company vide Invoice Tax No. UKA 123310 on 03-01-09. 2. It is further undisputed fact that, opposite No-1 is having tie up with opposite No-4 Oriental Insurance Company with coverage of loss or damage of the said mobile set by receiving premium amount of Rs. 175/- vide policy No. 413905/48/2010/Universal. 3. It is further undisputed fact that, the complainant lodged his complaint before the Sirwar police regarding the missing of his mobile on 10-10-09, while he was traveling in KSRTC Bus on 05-10-09 from Sirwar to Nilogal village. 4. It is also undisputed fact that, the complainant filed claim petition for the price of the mobile set due to missing with necessary records but none of the opposites not settled his claim. 11. With these undisputed facts between the parties. Now we have to appreciate the evidences of the parties on the following points as those are disputed points between the parties are:- The first point that was canvassed by the learned advocate for opposite No-1 before us is that, as per the pleadings and documents filed by the complainant, his case is of missing of his mobile set, it was not subjected to theft or damage. Hence the coverage of Insurance of the said set by opposite No-4 is not covering the missing cases of mobiles, accordingly complainant is not entitled for the claim. 12. In pursuance of this submissions we have gone through the documentary evidences, affidavit-evidences and written arguments filed by the complainant and opposite No-1 and 4, we are totally not in agree with this submission of the learned advocate for opposite No-1, for the simple reason that, the complainant might have noticed for the first time, regarding the missing of his mobile while he was traveling in the KSRTC Bus, that it does not mean to say that, the said mobile was not subjected to theft. The affidavit-evidences of complainant PW-1 clearly establishes the fact that, the said mobile set was missing due to theft of it and not for any other reasons. The police complaint was also filed in that regard, as such, we are not accepting this contention of the opposite No-1 and similar contentions of opposite No-4 that, the Insurance coverage is not applicable to the facts of his case. 13. Another ground that was canvassed by the learned advocate for opposite Nos-1 and 4 before us is that, there was a long delay in filing his complaint, as the complainant mobile was missing on 05-10-09, but he filed complaint on 10-10-09, as such not filing complaint immediately before the police is violation of terms and conditions of the policy. 14. In this regard the complainant has stated in Para-4 of his complaint, as well as in his affidavit-evidence that, he made his efforts to trace out the mobile later he went to Sirwar PS on 09-10-09 to file his complaint. He was asked by the police to come on 10-10-09 as PSI was out of station, accordingly he filed on complaint on 10-10-09, in view of the said facts such delay cannot be a good ground for opposite No-1 or opposite No-4 to reject the claim of complainant. There are no other grounds brought on record by them that, complainant concocted the story and filed complaint at a later stage to get wrong full gain out of it, accordingly we have not accepted this contention of opposite Nos-1 & 4 to reject the claim of complainant. 15. Opposite No-4 took another contention to out come its liability from the Insurance coverage by contending that, there was no direct contract in between the Insurance Company with complainant, it has got its tie up liability only with opposite No-1, accordingly this complaint is not maintainable against Insurance Company. 16. In view such contention we are of the view that, this ground would not help to the opposite No-4 to out come from its liability under the Insurance coverage. No doubt, it might have direct tie up with opposite No-1, but the complainant cannot throw out from exercising his vested right of claim under the Insurance coverage. 17. Other ground urged in Para-7 of written version of opposite No-4 is not helpful to it, for to dismiss the complaint, accordingly we are of the view that, complainant establishes the fact that, the opposite Nos-1 to 4, shown their negligence in settling the claim of the complainant and thereby, all of them found guilty under deficiency in their services, accordingly we answered Point No-1 in affirmative. 18. The first claim of the complainant is of Rs. 7,175/- towards cost of the mobile, this fact is undisputed fact, as such complainant is entitled to recover the amount of Rs. 7,175/- from opposite Nos-1 to 4 jointly and severally. 19. The second claim of complainant is for to award an amount of Rs. 20,000/- towards compensation for his mental sufferings, we are of the view that, it is a proper case to award interest on the cost of the mobile, from the date of this complaint till realization of the full amount. The proper rate of interest is 9% p.a. on Rs. 7,175/- as such we have granted interest at the rate of 9% p.a. from the date of this complaint, till realization of the full amount, as such it is not proper case to grant separate compensation amount to complainant as prayed in prayer column, accordingly, the prayer noted at B of the prayer column is rejected. 20. We have noted the deficiency in service by these opposites; as such complainant is entitled to recover a lumpsum amount of Rs. 3,000/- under this head of deficiency in service. 21. As regards to cost of litigation is concerned, we have taken note of the entire facts and circumstances of this case and the amount involved, we feel that, granting an amount of Rs. 3,000/- to the complainant towards cost of this litigation is proper and genuine, accordingly the complainant is entitled to get an amount of Rs. 3,000/- from opposite Nos. 1 to 4 jointly and severally towards cost of this litigation. Hence the complainant is totally entitled to recover an amount of Rs. 13,175/- from the opposite Nos. 1 to 4 jointly and severally and also he entitled to get future interest at the rate of 9% p.a. from the date of this complaint till realization of the full amount, accordingly we answered Point Nos. 1 & 2. POINT NO.3:- 22. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 13,175/- from opposite Nos. 1 to 4 jointly and severally. The complainant is also entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 13,175/- from the date of the complaint till realization of the full amount. Opposite Nos. 1 to 4 are hereby granted one month time to make the payment as stated above from the date of this judgment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 24-02-11) Smt.Pratibha Rani Hiremath, Sri. Pampapathi, Member. President, Dist.Forum-Raichur. Dist-Forum-Raichur.

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Shamshalam Kashmiri against the opposite Nos. 1 to 4 U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay the cost of the mobile phone of Rs. 7,175/- and an amount of Rs. 20,000/- as a compensation with interest and cost. 2. The brief facts of the complainants case are that, he purchased NOKIA Mobile Model No. 6300 on 03-01-09 from opposite No-1, who is the authorized dealer of NOKIA Company for Rs. 7,175/- vide Receipt No. UKA 123310 with IMEI, insured with opposite No-4 regarding the loss of mobile by theft or damage. On 05-10-09 he was traveling with the said mobile with him from Sirwar to Nilogal in KSRTC Bus, he noticed the missing of the said mobile phone, thereafter he searched for some time, but not traced out and on 10-10-09 he filed police complaint and thereafter he filed claim petition before opposite No-1 with an intimation to other opposites, but none of them have not settled his claim, they shown their negligence in settling his claim and thereby all opposites found guilty under deficiency in their services. 3. The opposite No. 1 appeared in this case and filed his written version by contending that, the allegations of complainant clearly shows that, the said mobile purchased by him, is missing but, it was not subjected to theft, hence Insurance coverage of opposite No-4 is not applicable to the facts of the case of complainant, complainant is not consumer and thereby it is not maintainable. 4. Opposite No-4 Insurance Company also contended similar contentions and prayed for to dismiss the complaint. 5. Opposite No-2 is placed Ex-parte. Opposite No-3 not appeared before this Forum, but sent its objections through post by contending that, it acted as broker to facilitate the customers of Universal Telecommunication India Private Ltd., Oriental Insurance Company Ltd., is the only authority to settle the claim of complainant. It is not a necessary party to this complaint, accordingly it prayed for to dismiss the complaint among other grounds. 6. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, he purchased NOKIA Mobile Model No. 6300 on 03-01-09 from opposite No-1, who is the authorized dealer of NOKIA Company for Rs. 7,175/- vide Receipt No. UKA 123310 with IMEI insured with opposite No-4 for one year, but he lost the said mobile phone on 05-10-09, while he was traveling in KSRTC Bus from Sirwar to Nilogal, thereafter he filed police complaint and filed claim petition before the opposite No-1 with necessary records opposite No-1 or opposite No-4 Insurance Company or opposite Nos- 2 & 3 not responded to his claim petition, they shown their negligence and thereby, all the opposites found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 7. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 8. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-10 are marked. Written arguments filed. On the other hand affidavit-evidence of opposite No-1 was filed, he was noted as RW-1. No documents filed. Similarly affidavit-evidence of opposite No-4 was filed, he was noted as RW-2. No documents filed on its behalf. Written arguments filed. 9. Opposite No-2 is placed Ex-parte. Opposite No-3 not appeared before this Forum and not filed any affidavit-evidence. 10. In view of the pleadings of the parties, their respective affidavit-evidences and documents, we have noticed some of the following undisputed facts in between the parties are:- 1. It is undisputed fact that, the complainant purchased Mobile set Model No. 6300 from opposite No-1, who is the authorized dealer of NOKIA Company vide Invoice Tax No. UKA 123310 on 03-01-09. 2. It is further undisputed fact that, opposite No-1 is having tie up with opposite No-4 Oriental Insurance Company with coverage of loss or damage of the said mobile set by receiving premium amount of Rs. 175/- vide policy No. 413905/48/2010/Universal. 3. It is further undisputed fact that, the complainant lodged his complaint before the Sirwar police regarding the missing of his mobile on 10-10-09, while he was traveling in KSRTC Bus on 05-10-09 from Sirwar to Nilogal village. 4. It is also undisputed fact that, the complainant filed claim petition for the price of the mobile set due to missing with necessary records but none of the opposites not settled his claim. 11. With these undisputed facts between the parties. Now we have to appreciate the evidences of the parties on the following points as those are disputed points between the parties are:- The first point that was canvassed by the learned advocate for opposite No-1 before us is that, as per the pleadings and documents filed by the complainant, his case is of missing of his mobile set, it was not subjected to theft or damage. Hence the coverage of Insurance of the said set by opposite No-4 is not covering the missing cases of mobiles, accordingly complainant is not entitled for the claim. 12. In pursuance of this submissions we have gone through the documentary evidences, affidavit-evidences and written arguments filed by the complainant and opposite No-1 and 4, we are totally not in agree with this submission of the learned advocate for opposite No-1, for the simple reason that, the complainant might have noticed for the first time, regarding the missing of his mobile while he was traveling in the KSRTC Bus, that it does not mean to say that, the said mobile was not subjected to theft. The affidavit-evidences of complainant PW-1 clearly establishes the fact that, the said mobile set was missing due to theft of it and not for any other reasons. The police complaint was also filed in that regard, as such, we are not accepting this contention of the opposite No-1 and similar contentions of opposite No-4 that, the Insurance coverage is not applicable to the facts of his case. 13. Another ground that was canvassed by the learned advocate for opposite Nos-1 and 4 before us is that, there was a long delay in filing his complaint, as the complainant mobile was missing on 05-10-09, but he filed complaint on 10-10-09, as such not filing complaint immediately before the police is violation of terms and conditions of the policy. 14. In this regard the complainant has stated in Para-4 of his complaint, as well as in his affidavit-evidence that, he made his efforts to trace out the mobile later he went to Sirwar PS on 09-10-09 to file his complaint. He was asked by the police to come on 10-10-09 as PSI was out of station, accordingly he filed on complaint on 10-10-09, in view of the said facts such delay cannot be a good ground for opposite No-1 or opposite No-4 to reject the claim of complainant. There are no other grounds brought on record by them that, complainant concocted the story and filed complaint at a later stage to get wrong full gain out of it, accordingly we have not accepted this contention of opposite Nos-1 & 4 to reject the claim of complainant. 15. Opposite No-4 took another contention to out come its liability from the Insurance coverage by contending that, there was no direct contract in between the Insurance Company with complainant, it has got its tie up liability only with opposite No-1, accordingly this complaint is not maintainable against Insurance Company. 16. In view such contention we are of the view that, this ground would not help to the opposite No-4 to out come from its liability under the Insurance coverage. No doubt, it might have direct tie up with opposite No-1, but the complainant cannot throw out from exercising his vested right of claim under the Insurance coverage. 17. Other ground urged in Para-7 of written version of opposite No-4 is not helpful to it, for to dismiss the complaint, accordingly we are of the view that, complainant establishes the fact that, the opposite Nos-1 to 4, shown their negligence in settling the claim of the complainant and thereby, all of them found guilty under deficiency in their services, accordingly we answered Point No-1 in affirmative. 18. The first claim of the complainant is of Rs. 7,175/- towards cost of the mobile, this fact is undisputed fact, as such complainant is entitled to recover the amount of Rs. 7,175/- from opposite Nos-1 to 4 jointly and severally. 19. The second claim of complainant is for to award an amount of Rs. 20,000/- towards compensation for his mental sufferings, we are of the view that, it is a proper case to award interest on the cost of the mobile, from the date of this complaint till realization of the full amount. The proper rate of interest is 9% p.a. on Rs. 7,175/- as such we have granted interest at the rate of 9% p.a. from the date of this complaint, till realization of the full amount, as such it is not proper case to grant separate compensation amount to complainant as prayed in prayer column, accordingly, the prayer noted at B of the prayer column is rejected. 20. We have noted the deficiency in service by these opposites; as such complainant is entitled to recover a lumpsum amount of Rs. 3,000/- under this head of deficiency in service. 21. As regards to cost of litigation is concerned, we have taken note of the entire facts and circumstances of this case and the amount involved, we feel that, granting an amount of Rs. 3,000/- to the complainant towards cost of this litigation is proper and genuine, accordingly the complainant is entitled to get an amount of Rs. 3,000/- from opposite Nos. 1 to 4 jointly and severally towards cost of this litigation. Hence the complainant is totally entitled to recover an amount of Rs. 13,175/- from the opposite Nos. 1 to 4 jointly and severally and also he entitled to get future interest at the rate of 9% p.a. from the date of this complaint till realization of the full amount, accordingly we answered Point Nos. 1 & 2. POINT NO.3:- 22. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 13,175/- from opposite Nos. 1 to 4 jointly and severally. The complainant is also entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 13,175/- from the date of the complaint till realization of the full amount. Opposite Nos. 1 to 4 are hereby granted one month time to make the payment as stated above from the date of this judgment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 24-02-11) Smt.Pratibha Rani Hiremath, Sri. Pampapathi, Member. President, Dist.Forum-Raichur. Dist-Forum-Raichur.