ORDER

BY SRI D.SURESH, MEMBER.

1.     This is the Complaint filed by the Complainant under Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service and to pay a sum of Rs.26,900/- and for Rs.3,93,000/- towards compensation for unproductive use of and wastage of time of the complainant and for Rs.1,00,000/- as harassment, discomfort, Mental agony, and for Rs.8,00,000/- towards punitive and exemplary damages and for other reliefs as the forum deems fit.

2.     The Brief facts of the complainant are that, theComplainant purchased brand new Galaxy A7 mobile  phone from the dealer i.e. OP for a sum of Rs.26,900/- on 31.8.2016 and also purchased an insurance policy from the OP company  on the same day  to get protection against damage, loss and theft.  After using the mobile for 9 months,  one day i.e. on 10.05.2017, when complainant wasshopping at K.R.Market area,  Bangalore,  the said mobile phone  was stolen from his hand bag.  Complainant immediately called the missing phone number from other phones but it was switched off.  Complainant kept calling that  number all the evening  but  it was switched off.   Immediately   complainant filed a police complaint and also informed the same to the OP along with claim petition and necessary documents.   On 8^th Jun 2017  OP denied the claim taking the aid of clause 10 of the policy terms and conditions. 

3.     It is contended that, there is no will full negligence on the  part of  complainant .  Despite receiving all the document, OP did not perform its part of contract and   refused bona-fide claim willfully.  The complainant got issued legal notice to OP on 29.6.2017, However, no reply was given by OP d.   Hence this complaint

4.     Upon service of notice,OP appeared and filed version and has taken up the contention that   the device of the complainant was insured with National insurance company who has not been made a party to the present complaint.  Since the device was insured with National Insurance Company   the liability to pay the claim is of National Insurance Company. Therefore National Insurance Company is a proper and necessary party to the Present complaint.  Further it has also taken the contention that present complaint does not disclose any cause of action against OP and   the claim was rejected strictly as per the standard terms and conditions applicable to the mobile handset. 

5.     The liability of the OP is limited. He is a facilitator in registering and processing  of the claim with the Insurance company. Complainant is seeking a relief which is beyond the jurisdiction.  Further, OP urged that  as per clause 13.6 of standard Terms and Conditions, the parties should agree to refer dispute to arbitration. But complainant did not do so.

6.     One assist is only the holder of the policy and complainant will be the beneficiary in the event of the claim and that OneAssist is only to facilitate the registering and processing the claim with the insurance company.  One Assist is not liable for any incidental consequential or indirect damages. Insurance is a contract between the parties and settlement of claim is at the sole discretion of  Insurance company.

7.     Further OP has taken the contention that In the present incident OP received the complaint and uploaded the document on its portal and same was forwarded to National Insurance company.  After due verification,  it was noted that the phone was stolen due to negligence of complainant and hence claim was rejected.  Hence OP is not liable to pay any claim and prayed this forum to dismiss the complaint.

8.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether there is deficiency in service on

the part of OP?

2) Whether the Complainant is entitled to

the relief prayed for in the complaint?

9.     WE ANSWER:-

POINT NO.1:    In the affirmative

POINT NO.2:    Partly in the affirmative.

                                For the following.

REASONS

POINT No.1:-

10.   On perusal of the complaint, version , evidence and the documents produced and marked for both sides, it is clear that   complainant  purchased a Galaxy A7 mobile from the dealer for a sum of Rs.26,900/-  and on the same day, he also paid a  sum of Rs.2,399/- to OP company  towards one time insurance premiumto get protection his mobile phone against damage, loss and theft. Complainant has filed a copy of the insurance membership document.  After purchasing mobile handset, complainant used the same for 9 months.  On 10.05.2017 complainant went for shopping at K.R. Market area, where there was  huge crowd. He was busy in purchasing  articles. After completion  of purchase, he came to notice that the mobile was not in his hand bag. He lodged a complaint before crime branch Bengaluru City Police station as per Ex. P4 on 11.05.2017 and also inform the same to OP along with claim petition by furnishing necessary documents to honour the claim.

 11.  Inspite of honoring the claim, One Assist sent a letter to the complainant  stating that the subject claim is not admissible under Exclusion-10“Loss or damage caused by willful negligence (No proper care of handset has been taken by insured to safeguard the property).”Any  person or organization cannot escape from its liability by giving such unholy reasons.  As we have gone through the facts of the case, we do not find any negligence either willful or malice.  Generally, people do not want to loose their valuables intentionally. Presume to hold such a view is a misconception.  In the present case, OP denied the claim on the ground that  complainant has not taken proper care to safeguard the handset.  When the handset was stolen, the question of taking care does not arise at all.   Only   place and circumstances should be taken in to consideration.  Here, complainant has lost  his mobile phone at K.R. Market area, which is one of the heavy crowded area. Even after taking proper care such kind of incidents dohappen and the same is beyond one’s control. 

12.   OP taken contention that, the device of the complainant  was insured with National insurance company who has not been made as a party to the present complaint. We have perused the insurance document produced before this forum,  wherein, the  receipts for having received the insurance premium amount inrespect and copy of the  terms and conditions. These documents were issued by OP company itself and  it also appears that the entire insurance transaction is between the complainant and OP. Hence National Insurance Company no way concerned to the present contract.  Such being the scenario, OP cannot shift its liability on other’s shoulder.  Even if  OP feels that the claim amount should be payable by National Insurance Company,  OP has to pay first the claim amount to the complainant and then get it recovered from the National Insurance Company.  Eventhough, One Assist pleaded that they are just only a facilitator the same cannot be accepted, because, the very principle of contract clearly speaks that “An act of agent is an act of Principal’   So, OP cannot escape from its liability.  Further mere non-joinder of a necessary party complaint cannot be dismissed.  In view of above discussions, we answer that there is deficiency in service on the part of OP in not honouring the claim in respect of the lost/stolen mobile handset even though which was covered under the insurance given by the OP. Hence we answer POINT NO.1 in the Affirmative.

POINT NO. 2

13.   Since we have held Point No.1 in the affirmative OP is bound to pay the value of the lost/stolen mobile hand set. As per the documents produced the value of the mobile set is Rs.26,900/- in view of the insurance available of the mobile hand set, it was the bounden duty of the Op to pay the said amount as soon as a proper claim was made the complainant has made a claim to the OP within a short date after the incident. It is also reported to the police on 11.05.2017 and the mobile set was reported to be stolen on 10.05.2017. Hence OP is directed to pay the said amount along with interest at 12% per annum on the above from the day on which the matter was reported to the police.  Further due to inaction of the OP complainant was made to approach this forum by spending time, money and energy and also undergone mental stress and strain due to the repudiation of the insurance. Hence since the complainant has not make any material evidence to show that he has suffered Rs.3,93,000/- for wasting this time and Rs.1,00,000/- for the harassment and discomfort caused to him and Rs.8,00,000/- for suffering damages we order Op to pay a sum of Rs.5,000/- towards damages and Rs.5,000/- towards litigation expenses in all. Hence, we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-       

ORDER

1. The Complaint is allowed in part with cost.
2. OP i.e. One Assist Consumer Solutions Private Limited, represented by its Authorized Signatory is hereby directed to pay a sum Rs.26,900/-  along with interest at 12% per annum from the date of reported to the police i.e. on 11.05.2017 till the payment of entire amount to the complainant.
3. Further OP is directed to pay Rs.5,000/- towards damages and Rs.5,000/- towards cost of the litigation and other charges.
4. O.P is hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance’ report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 22^th NOVEMBER 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Original retail sales Bill/Invoice.

Ex P2: Copy of the membership Insurance.

Ex P3: Copy of the oneassist terms and conditions.

Ex P4: Copy of the endorsement issued by the policy authority.

Ex P5: Copyof the declaration form in respect of theft clam.

Ex P6: Copy of the repudiation letter issued by the Op.

Ex P7: Copy of the notice issued by the complainant to OP.

Ex P8: Original receipt issued by Airtel Company in respect of SIM BLOCK.

Ex P9: Copy of the Postal track record.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri  PraveenKumar.V of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Terms and conditions of the policy.

MEMBER                        PRESIDENT

A*