DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Complaint Case No : CC/66/2018

Date of Institution : 06.06.2018

Date of Decision : 09.07.2019

Malkiat Singh aged about 56 years son of Sh. Sewa Singh resident of Ward No. 24, Taraksheel Chowk, Near Bibi Pardhan Kaur Gurudwara Sahib, Barnala, Tehsil and District Barnala Pin Code-148101.                            …Complainant

Versus

1. Fone Safe, CPP Assistance Services Private Limited, Ground Floor, Wing-A, Golf View Corporate Tower-A, Golf Course Road, Sector-42, Gurgaon-122002 (Haryana) through its Authorized Signatory Sh. Prachala Singh Pin Code 122002.

2. Puneet Telecom, KC Road, Near SD College, Near Street No. 4, Barnala through its Authorized Signatory, Authorized Dealer of Fone Safe, CPP Assistance Services Private Limited. Pin Code 148101.

3. Kamlesh Telecom, Opp. New Bus Stand, Barnala, District Barnala through its Authorized Signatory (Authorized Service Centre). Pin Code 148101. 

…Opposite Parties

 

Complaint Under Section 12 of Consumer Protection Act, 1986.

Present: Sh. Maninder Singh counsel for complainant.

Sh. AK Jindal counsel for opposite party No. 1.

Opposite parties No. 2 and 3 exparte.   

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

(ORDER BY KULJIT SINGH, PRESIDENT):

    The complainant namely Malkiat Singh has filed the present complaint under Consumer Protection Act (In short the Act) against Fone Safe, CPP Assistance Services Private Limited, Gurgaon and others. (hereinafter referred as opposite parties). 

2. The facts leading to the present complaint are that the complainant purchased one Samsung A5-7 for a sum of Rs. 23,500/- vide invoice No. G-0102 dated 15.8.2017 from opposite party No. 2 having IMEI No. 356972/08/1051152/6 and 356973/08/105152/4 having one year warranty. 

3. It is further alleged that the opposite party No. 2 who is authorized dealer of opposite party No. 1 told to the complainant that if the complainant got insured his mobile from the opposite parties against breakage, theft, lost, wet and any other fault, then the mobile of the complainant will be replaced or the non functioning part will be replaced and in case of breakage, lost or theft, amount of the device will be paid by the insurance company to the complainant. On his assurance, the complainant got insured his device from the opposite parties and paid a separate amount of Rs. 2,399/- to the opposite party No. 2 who installed Fone Safe Mobile Protection Software bearing membership Fone Safe Classic T3 Plan bearing Membership No. IM0664120 for a period of one year i.e. 15.8.2017 to 14.8.2018 in the device of the complainant. 

4. It is further alleged that in the month of November 2017, the device of the complainant had fully damaged and complainant approached opposite party No. 2, who further send the complainant to approach opposite party No. 3 and opposite party No. 3 charged a sum of Rs. 10,363/- on 17.11.2017 though the mobile set was insured with the opposite party No. 1. The bill issued by the opposite party No. 3 was handed over to opposite party No. 2 but he failed to refund the said amount to the complainant. After that complainant approached many times to the opposite party No. 2 but the opposite parties had not paid the amount of the device to the complainant which is deficiency and negligence on the part of the opposite parties. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may kindly be directed to refund the amount of Rs. 10,363/- alongwith up to date interest. 

2) To pay Rs. 10,000/- on account of mental tension, agony and physical harassment.           

3) To pay Rs. 10,000/- as litigation expenses.  

4) Any other proper relief the Forum may deem fit. 

5. Upon notice of this complaint, the opposite party No. 1 filed written version taking preliminary objections interalia on the grounds that the answering opposite party is not an insurance company  and role of answering opposite party is limited to get the mobile phone of the complainant insured with an insurance company M/s Iffco Tokio General Insurance Company Limited and all claims for any alleged loss of mobile handset of the complainant were to be dealt with by the said company and complainant is always aware about this fact. It is further objected by the opposite party No. 1 that as per Claims clause of the Insurance Terms and Conditions, the submission of claim form alongwith requisite documents within 45 days from the date of incident is condition precedent for processing of claim. On 10.11.2017 the complainant informed answering opposite party regarding incident of damage of insured mobile phone and answering opposite party requested the complainant to submit claim form alongwith requisite documents within 45 days but he did not submit the claim form alongwith requisite documents so the claim of the complainant was closed for non submission of documents by insurance company. 

6. On merits,  it is submitted that the insurance of mobile phone was provided by M/s Iffco Tokio General Insurance which has not been impleaded in the instant complaint. Further, the answering opposite party not insured the mobile phone of the complainant. The complainant did not submit the requisite documents within stipulated time so the claim of the complainant was closed for non submission of documents within the stipulated time. All other allegations are denied and prayed for the dismissal of complaint. 

7. The opposite parties No. 2 and 3 not appeared before this Forum despite service, so both the opposite parties No. 2 and 3 were proceeded against exparte vide order dated 13.7.2018. 

8. The complainant also filed rejoinder to the written version filed by the opposite party No. 1 and reiterated the allegations as mentioned in the complaint.  

9. In support of his case, the complainant tendered into evidence his own affidavit as Ex.C-1, copy of Tax Invoice by Samsung Authorized Service Centre as Ex.C-2, copy of bill dated 15.8.2017 as Ex.C-3, copy of Membership Card No. IM0664120 as Ex.C-4 and closed the evidence. 

10. To rebut the case of the complainant, the opposite party No. 1 tendered into evidence copy of terms and conditions of insurance company as Ex.OP-1/1, affidavit of Gagan Chawla Finance Director of opposite party No. 1 Ex.OP-1/2.  

11. We have heard the learned counsel for the parties and have gone through the record. Written arguments filed by the complainant and opposite party No. 1 have also been gone through.

12. It is an admitted fact between the parties that the mobile of the complainant was insured by the opposite party No. 1 from an insurance company. The opposite party No. 1 admitted in their written version that the insurance of mobile handset of the complainant was covered by Iffco Tokio General Insurance Company Limited.  

13. Now the main question before us whether the opposite party No. 1 is liable to pay the insurance claim of the complainant or not and opposite party No. 2 is liable to pay compensation or not ?

14. To prove that the complainant purchased the mobile handset in question from the opposite party No. 2 he tendered in evidence copy of invoice Ex.C-3 which proved that the complainant purchased the mobile for an amount of Rs. 23,500/- on 15.8.2017. The complainant also filed copy of Membership No. IM0664120 which is in favour of the complainant Ex.C-4 and duly proved that the complainant purchased the insurance policy from the opposite party No. 1 which was valid from 15 August 2017 to 14 August 2018. In this policy the model of the mobile handset of the complainant and its IMEI number also mentioned. It is specifically proved from this policy that the same was issued in favour of the complainant after receiving the amount of Rs. 2,399/- as premium from him. The complainant also tendered in evidence copy of Tax Invoice dated 17.11.2017 Ex.C-2 which clearly proved on the file that the mobile set of the complainant was damaged and he got repaired the same from the opposite party No. 3 who is authorized service center of Samsung Company and paid Rs. 10,363/- to the opposite party No. 3 for this purpose. The complainant duly deposed in his affidavit Ex.C-1 that after repairing the said mobile the bill issued by the opposite party No. 3 was handed over to opposite party No. 2 who failed to refund the above said amount. 

15. On the other hand, the opposite party No. 1 to rebut the contentions of the complainant filed affidavit Ex.OP-1/2 of Gagan Chawla Finance Director in which he supported the version of opposite party No. 1. The opposite party No. 1 also tendered copy of instructions Ex.OP-1/1 in which at Clause 5 Claims it is mentioned that if you need to make a claim for loss due to Equipment Incident under the policy, the policyholder will then send you a claim form to fill in and return to the policyholder. The claim documents under the policy must be received by the insurer within 45 days of the date of equipment incident and this is a condition precedent for admissibility of the claim but the complainant did not submit the claim form alongwith requisite documents so the claim of the complainant was closed due to non submission of documents by the Iffco Tokio General Insurance Company Limited.

16. We have perused the record on the file that and found that  in the affidavit of complainant Ex.C-1 he specifically deposed that the bill of the repair Ex.C-2 was immediately handed over to the opposite party No. 2 for insurance claim. It is the opposite party No. 2 who know all the facts of the present matter but he intentionally not appeared before this Forum to disclose the same and preferred to remain exparte. It is the opposite party No. 2 who insured the mobile of the complainant from opposite party No. 1 by concealing the fact from the complainant that the opposite party No. 3 is not an insurance company rather it is an Agent of the insurance company. From the circumstances it is also clear that the opposite party No. 2 has not told any terms and conditions to the complainant and opposite party No. 2 did not appear to prove all these facts. Admittedly, the mobile of the complainant damaged and repaired from the opposite party No. 3 vide bill Ex.C-2 and till date his insurance claim is not settled by the opposite party No. 1 by themselves or through insurance company.

17. In view of the above discussion, as the opposite party No. 1 not paid the insurance claim of the complainant inspite of taking premium from him is deficient in providing service and it is unfair trade practice on its part so the opposite party No. 1 is liable to pay insurance claim to the complainant. The opposite party No. 2 also deficient in providing service to the complainant as he insured the mobile of the complainant from the opposite party No. 1 at the time of its purchase and bill of repair was also submitted with the opposite party No. 2 but he has not taken any steps to settle the claim of the complainant with the opposite party No. 1 or any alleged insurance company. 

18. As a result of the above discussion, present complaint is allowed and the opposite party No. 1 is directed to refund the amount of Rs. 10,363/- to the complainant on account of insurance claim alongwith interest at the rate of 6% per annum from the date of repair of the mobile handset i.e. 17.11.2017 till actual realization. The opposite party No. 1 is also directed to pay Rs. 5,000/- to the complainant as compensation on account of mental tension, harassment and litigation expenses. The opposite party No. 2 is also directed to  pay Rs. 5,000/- to the complainant as consolidated amount of compensation for mental tension, harassment and dragging the complainant into unwanted litigation. Both the opposite parties No. 1 and 2 are also directed to deposit Rs. 2,000/- each as costs in the Consumer Legal Aid Account maintained by this Forum. Compliance of order be made within the period of 30 days from the date of the receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.

  ANNOUNCED IN THE OPEN FORUM:

9th Day of July 2019

 

 

            (Kuljit Singh)

           President

 

 

           (Tejinder Singh Bhangu)                Member