Order-15.

Date-22/02/2018.

       Shri Anupam Bhattacharyya, President.

The instant complaint has been filed by the complainants u/s.12 of the C.P. Act, 1986 praying for order for repair of the phone at the cost of OPs and for compensation of Rs.80,000/- for mental harassment,  inconvenience,  litigation cost and other reliefs.

            The Complainant’s case, in brief, is that on 25.11.2015 the complainant ordered a mobile phone through on-line from Flipkart of Xiaomi Mi4 for Rs. 14,999/-. For safeguard her mobile on 31.10.2016 insured through a Company “One Assist” by on line payment of Rs.1,000/- for the validity from 24.11.2016 to 23.11.2017. On 28^th December, 2016 her father gifted her Coolpad Note 5 a Mobile Phone.  On 31^st December,2016 the complainant requested the OP Insurance Company over phone to transfer the insurance coverage to her new mobile and she was informed to send an official email within one month.  On 16^th January,2017 Complainant sent an email as per advice of the insurer “One Assist”, but the same is yet to transfer in spite of her repeated emails. Finally on 18^th February, 2017 the Complainant was asked to send a fresh mail, which was complied with on the same date. On 25.02.2017 the  Complainant lodged a claim upon “One Assist” as the screen got damaged.  On 27.03.2017 the insurer informed the Complainant that the repair estimate of the  mobile was about Rs.5,822/- and also to submit all the documents.  On 10^th May, 2017 sent an email rejecting the claim of the Complainant on the ground of IMEI code was not communicated within 30 days. On 18^th May,2017 the Complainant sent a legal notice through Ld. Advocate to OP-1 to approve the claim within two weeks but no result and on 2^nd June, 2017 the OP1 returned the mobile to the Complainant  in  further damaged condition.  Hence the instant complaint case.

            The written version filed by the OP-2, in brief, is that an agreement was made between Complainant and OP-1 where OP-2 mentioned that  printing of  logo is easily available in the internet and can misuse it and also mentioned that there is no policy  of insurance  issued by this OP-2 in favour of the Complainant and no case was lodged for such claim. In absence of any policy of insurance issued by this OP-2 and the claim lodged, cannot be any liability of this OP-2. There is an agreement between Complainant  and OP-1 only. The insurance was on Complainant’s Xiaomi Mi4 Mobile Coolpad Handset and there is no such provision for transfer of insurance from one article to another article. Complainant in the present case demanded repair of the mobile phone and also prayed for compensation  of Rs.80,000/- along with litigation cost. The Complainant is not at all a consumer of OP-2 and, as such, there is no deficiency of service and prayed before Forum for dismissing the present case against the OPs.

Point for Decision

1. Whether the case is maintainable in its present form and law?
2. Whether there is any cause of action to file the case?
3. Whether the case is barred by limitation?
4. Whether the complainant is entitled to get the relief as prayed for?
5. What other relief/reliefs the complainant is entitled to get?

Decision with Reasons

Points No. 1 to 5.

All the points are taken up together for the sake of convenience.

The instant case is for repairing of the mobile phone and for compensation of Rs.80,000/- along with litigation cost.

The Complainant’s main case is that the Complainant purchased one Xiaomi Mi4 mobile phone from Flipkart for Rs.14,999/- and the same was insured by OP-1 as per their approach and, thereafter, her father gifted her one Coolpad Note 5 Mobile Set purchased from Amazon for Rs.10,999/- and the Complainant asked for transfer of the insurance in respect of the earlier mobile set to the present gifted mobile set. Subsequently,the gifted mobile set accidentally was damaged being slipped and claimed insurance from the Insurance Company which was repudiated on the ground that intimation for transfer was not within the 30 days as per terms which is illegal. The insurance company received the handset on 24.03.2017, but the samewas returned to the Complainant on 02.08.2017 without repair. The Complainant sent legal notice to the OP-1 on 18.05.2017, but no response.

On the other hand, in this case, OP-1 who acted as Agent of the Insurance Company to get the alleged insurance policy in respect of the impugned Mobile Set of the Complainant has not turned up and the case against OP-1 has been taken up for ex parte hearing.

On the other hand, the case of the OP-2, the National Insurance Company, in brief, is that there is no insurance policy of the Complainant with the OP-2. The alleged insurance policy is false one. There was an agreement in between the Complainant and OP-1 using the Logo which is easily available from the internet and can be used. No such insurance policy was issued by the OP-2 and for that question of repairing and compensation as claimed does not arise and for that this prays for dismissal of the case against them.

To prove the case, the Complainant and OP-2 have adduced the evidence and questionnaires and replies vis-à-visalong with relevant documents in support of their respective case.

It is true that in this case original policy has not come before this Forum, but relevant document relating to purchase of Mobile and several emails relating to correspondencebetween the OP-1 and Complainant in the matter of receiving the damaged handset and handing over the same to authorized service centre and relevant invoice regarding purchase of mobile set.

Further the documents filed by the OP-2, Insurance Company along with their w.v. relating to the correspondences through ‘email’ to OP-1 against his reply it appears that after getting Summons of this case, they first came to know about the alleged policy, but there is no such policy and the agreement was made in between the Complainant and the OP-1. Regarding using the Logo ofOP Insurance Company which has been annexed with the Evidence-in-chief on Affidavit of the Complainant, it is clear that no original policy as well as any Xerox copy of the policy showing policy no. has come before this Forum.

Considering the materials on record and also considering the prayer of the Complainant in the petition of complaint for repair of the damaged mobile phone and compensation for harassment, we find that there is involvement of OP-1 in the matter of receiving the mobile set for repair, but the same has not been done by OP1.
The question of plea of intimation for transfer of the policy within 30 days will not arise because policy has not yet been proved.

In this case, the OP-1 has not turned and for that we can safely conclude that OP-1 is solelyresponsible for unfair trade practice and policy being not proved by mere use of logo the OP-2 cannot be held liable and for that the case be dismissed against OP-2.

On the basis of above discussion, we find that all the points are disposed of in part in favour of the Complainant against OP-1 for repair of the Mobile set by OP-1 free of cost and compensation of Rs.10,000/- for harassment and Rs.2,000/- litigation cost and the case against OP-2 be dismissed.

                                                                        Ordered

That the instant case no.266 of 2017 be and the same is allowed in part on contest against the OP1 and dismissed against OP2.

            OP is directed to repair the Mobile set by OP-1 free of cost and compensation of Rs.10,000/- for harassment along with litigation cost of Rs.2,000/- within 30 days from the date of this order, in default, the OPs 1 and 2 is to pay fine  at the rate ofRs.100/- per day delay and the amount so accumulated should be deposited to this Forum.

            Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision of the C.P. Act.

Order No. 16 / Dated 08/03/2018.

Record is put up on the strength of a petition filed by the Ld. Advocate for the Opposite party No.-2 National Insurance Co. Ltd. with the prayer for  rectification / correction of some typographical mistake in the jusgement passed by this Forum on 22.02.2018 in connection CC/266/2017. In the said petition it is stated that in the ordering portion of the judgement  aforesaid it has been wrongly written as ‘the O.Ps.-1 and 2is to pay fine at the rate of Rs.100/- per day delay and the amount so accumulated should be deposited to this Forum’, instead of ‘the O.P. No.-1 is to pay fine at the rate of Rs.100/- per day delay and the amount so accumulated should be depositted to thsi Forum’, with the prayer for correction of the same.

Perused the petition filed by the Ld. Advocate for the O.P. No.-2. Seen the copy of the judgement dated 22.02.2018 passed by this Forum in CC/266/2017. Considered.

It appears from the aforesaid judgement that the case was allowed against O.P. No.-1 and dismissed against O.P. No.-2. So the question of fine against O.P. No.-2 does not arise. As the mistake is typographical one, the prayer of the O.P. No.-2 is allowed. In the ordering portion of the judgement ‘the O.Ps.-1 and 2 is to pay fine at the rate of Rs.100/- per day delay and the amount so accumulated should be deposited to this Forum’ is corrected / rectified as ‘the O.P. No.-1 is to pay fine at the rate of Rs.100/- per day delay and the amount so accumulated should be deposited to this Forum’.

Let the original order sheet be corrected accordingly and copy of order be supplied to the parties after rectification. Parties are to act accordingly.