IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 30^thday of March, 2021

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member

C C No. 268/2018 (filed on 21/12/2018)

Petitioner                                          :         Sajan P.M.

                                                                   Cozy Bhavan,

                                                                   Perumpaikkad Post and village,

                                                                   Perumpaikkadkara,Kottayam.

                                                                   (Adv. Philson Mathews and

                                                          Adv. Rajesh G.)

                                                         Vs.                            

Opposite parties                               :   1)   Chairman & Managing Director,

                                                                   Reliance Digital,

                                                                   Reliance Corporte park,

                                                                   W S 230, Building No.4,

                                                                   Ist Floor, C Wing Thane,

                                                                   Belapur Road, Ghan Soli,

                                                                   Navi Mumbai – 400701.

(For op1 and 2, Adv. Nithin M.K.)

                                                               2)   Reliance Digital Ground &

                                                                   First Floor, Nabeesa Shopping

                                                                   Complex, Nagampadam,

                                                                   S.H. Mount, Kottayam – 686 006.

                                                                   (Adv. Nithin M.K. and

Adv. Karthik S. Nair)

                                                              3)   The Oriental Insurance Co. Ltd.

                                                                   Oriental House, P.B. No. 7037,

                                                                   A-25/27, Asaf Ali Road,

                                                                   New Delhi – 110 075.

                                                                   (Adv. R. Ajith)

                                                               4)  W and IA services 342,

                                                                   IIIrd Floor Vardhaman,

                                                                   Dee Cee plaza, Sector II,Plot No.7

                                                                   Dwaraka,    New Delhi – 110 075.

O  R  D  E  R

Smt. Bindhu R. Member

          The complainant’s case is that he had purchased a brand new Samsung J5

prime mobile phone on 24.12.2016 from the 2^ndopposite party when the 2^nd

opposite party persuaded him to take the policy of the 3^rd opposite party. So the complainantinsuredthe said mobile phone with the 3^rd opposite party from theft and accidents. While so on11.12.2017, when the complainant was travelling in a car as traveler from hishome to Pushpagiri hospital Thiruvalla, the driver of the car suddenly appliedthe break and the said mobile phone slipped from the complainant’s hand andfell down on the road through the side window. Another car from behind runover the mobile phone and it was totally damaged.

The 1^st opposite party sells mobile phones and other electronic products of differentcompanies all over India, the 2^nd opposite party sells consumer electronics productsand mobiles phones of different companies. The 3^rd opposite party is an insurancecompany which insures vehicle and electronics items including mobile phones.The 4^thopposite party is appointed by the 1^stopposite party for gadget andmobile phone insurance. The 4^thopposite party is dealing with the insurancedisputes.

The complainant approached the 2^nd opposite party and showed the said mobile phoneafter the accident. The manager of the 2^nd opposite party advised the complainant tocollect an estimation amount of repairing from the authorised service centre.On 12.12.2017 the complainant approached the authorised service centre ofSamsung mobiles, Kottayam. The service centre gave an estimation of Rs.19,300/- which was more than the cost of the above said mobile phone andconfirmed with the 4^th opposite party on 17.12.2017. Thereafter the complainant sent thedamaged phone along with the required documents to the 4^th opposite party but the 4^th opposite party repudiated the claim for the reason that the required documents and thedamaged phone was not submitted with them. At the time of purchase of themobile phone the 2^ndopposite party assured the complainant that the accident cum theftpolicy will be useful in future against theft and accident. As per the policyconditions, the 3^rd  opposite party is liable to pay the price of the mobile phone to thecomplainant if theft or accident occurs within one year. Even though thecomplainant fulfilled all the conditions of the claim, the 3^rdopposite party repudiated thepolicy with a reason that “captioned claim”. There is deficiency of service onthe part of the 3^rdand 4^th opposite parties and unfair trade practice on the part of 1^stand 2^nd opposite parties. Hence this complaint.

Upon notice from this commission opposite parties 1 to 3 appeared and filed version. Opposite party 4 did not turn up and hence set ex parte. Opposite party 1and 2 filed joint version throughthe manager of the 1^st opposite party with the following contentions: The 2^nd opposite party is a part ofthe reputed chain of retail outlets known as Reliance Retail Ltd. which ownsReliance digital that trades in electronic articles and devices. Neither opposite party 1 nor opposite party 2 manufactures any electronic products but sell the electronic products ofvarious reputed companies. The opposite party 1 and opposite party 2 are always strict to maintaintheir goodwill in the market. The averment that the 2^nd opposite party persuaded thecomplainant to take policy is baseless. The staff of opposite party 2 only explains theavailable services like extended warranty to the customer. In this case, thecomplainant after being briefed of the benefits of the extended warrantyavailed the said service of extended warranty and the complainant got theinsurance cover offered by opposite party 3 free of cost along with the extended warranty.Without purchasing the extended warranty the complainant would not beeligible for the insurance cover even if any damage occurs within brandwarranty period. The brand warranty and extended warranty covers onlymanufacturing defect, functional defect etc. whereas the insurance covers theft, accidents etc. The complainant has no case that the product wasdefective or malfunctioning. Even after the usage of one year, the said mobilephone had no complaints. When the complainant approached opposite party2, opposite party2 advised him to pursue the matter with opposite party3,who is the insurancecompany. Opposite party 1 and opposite party2 are not privy to the alleged transactions between thecomplainant and the authorised service centre of Samsung, if any.Opposite party 1 and 2are not responsible for the correctness of the estimate, if any, given by theauthorized service centre of Samsung. The averment regarding the estimate ifany, given by the authorised service centre of Samsung can be verified only bythe said service centre, who is a necessary party for that purpose. The saidservice centre is not arrayed in the party array. Hence the burden of proofregarding the said fact also vests with the complainant. It is evident thatwhenever the complainant approached the opposite party 2, they had extended all helpthough they had no legal obligation, to connect the complainant with opposite party 3 and4. Opposite party 1 and 2 are not privy to the averments regarding that the mobile phonehad been sent by courier to the opposite party 4 and it was necessary for the couriercompany to be impleaded to prove the delivery. The opposite party 2 had explained onlyabout the extended warranty to the complainant and the services regardingthat is not an issue in this case.It was clearly explained to the complainant asusual that the insurance was given by the opposite party 3 and for all services relating tothe insurance cover, the complainant must approach opposite party 3.The only allegationagainst the opposite party 1 and 2 is that there is unfair trade practice on the part of the 1^stand 2^nd opposite party but that too is only a blunt allegation. Hence the complaint is liableto be dismissed. The 3^rdopposite party filed independent version in which it raises thecontentions admitting the policy in the name of the complainant in respect ofthe Samsung mobile phone having IME no 352511080631385on 24.12.2016 through 4^th opposite party. The complainant had given a claim for through 4^thopposite party. The complainant didnot submit system generated estimate identity proof, which was required forclaim processing. A sum of Rs.11,025/- is the market value of the mobilephone.Out of which 50% (Rs.5,513/- is deducted as depreciation and forpolicy excess Rs.800/- also deducted. For salvage Rs,302/- is deducted andthereby net payable claim is Rs.4,410/-As per the request of the complainant,Rs.4,410/- has been credited to the bank account of the complainant withHDFC bank by NEFT on 6.3.2019 as full and final settlement of the claim.Complainant never approached this opposite party for settlement of claim inrespect of the damage caused to the mobile phone. The estimate for repairsof the mobile phone produced along with the complaint is a false documentcreated for the sole purpose of this case. The 3^rd opposite party is not liable to pay theamount claimed by the complainant. Complainant has not produced therequired documents and materials for the processing of the claim. The claim istime barred and the commission has no jurisdiction to entertain this. The 3^rd opposite party has never repudiated the claim of the complainant. There is no deficiencyin service on the part of this opposite party.

In the evidence stage, thecomplainant filed proof affidavit along with Exhibits A1 to A10 out of which A3to A7 were marked subject to proof. The 3^rd opposite party filed proof affidavitalong with documents marked as Exhibits B1 to B6. 1^st and 2^ndoppositepartieshave filedchief affidavit but no documentary evidence.

On a detailed examination of the evidence on record and the pleadings, weframe the following points for consideration:

1. Whether there is any deficiency of service proved by the complainant

2. Whether the complainant is eligible for getting the reliefs?

For the sake of convenience, we consider the two points together.

Point no. 1and 2

The complainant filed the case for getting the insurance amount for which

his mobile phone was insured with the 3^rdand 4^thopposite parties on theevent of the damage of the phone in an accident.  The opposite party 1 and 2 in their version has denied the allegations against them as all the allegations are against the 3^rd opposite party.  The 3^rd opposite party is the insurance company who provided insurance policy to the complainant along with extended warranty given by the opposite party 2.  Whatsoever the context is, admittedly the 3^rd opposite party issued a policy to the mobile phone of the complainant with a coverage of damage or loss caused due to theft or accident.  Accordingly to the complainant the mobile phone had been damaged to the extent of total loss.  To substantiate this, the complainant produced Ext.A9 estimate given by authorized service centre of Samsung.  The complainant further averred that the opposite party 4 has repudiated his claim for want of documents whereas had already sent all the documents by the courier to the 4^th opposite party and has produced the receipts and track records as Exts. A8 and A10.  So there is no ambiguity in that whether the complainant submitted the documents or not.  But the 3^rdopposite party in its version itself has stated that they had already assessed the value of the claim as depreciation value of the mobile which had a market value of 11,025/- as Rs.5,513/- after deducting 50%.  Further a policy excess of Rs.800/- and salvage value of Rs.302/- had been deducted from that thus Rs.4,410/- had been credited to the bank account of the complainant with HDFC bank by NEFT.  This was on 06-03-2019 as full and final settlement while the pendency of this complaint.  The 3^rdopposite party has filed Ext.B5 claim payment voucher and Ext.B6 letter to prove the deposit of the amount. 
Though this is so, the complainant has not rebutted this contention in evidence.

          At this juncture we presume that as per Ext.B5 and B6 and the sworn statement of the opposite party 3 Rs.4,410/- has been paid to the complainant.  The 3^rd opposite party had deducted the depreciation value, policy excess and salvage as per the terms and conditions of the policy Ext.B1(a). According to B6 and B1(a)for claim amounts beyond Rs.5,000/- the policy excess is 5% of the claim amount subject to a minimum of Rs.500/-.  As per Ext.B1(a) the policy excess is calculated to 5% if the claim amount is beyond Rs.5,000/-.  Here the claim amount is Rs.15,714/-.  The market value after depreciation is calculated as Rs.11,025/-.  The 5% of both these values does not amount to Rs.800/-.  But here, the 3^rdopposite party has deducted Rs.800/- as the policy excess.  This is not a fair practice.  Thus we find that the 3^rd opposite party has committed unfair trade practice.

          Further, as per the IRDA regulations, the insurer has to settle the claim within the turnaround period of 30 days from the submission of claim and documents. IRDA regulations states as “The regulations of IRDA reads: 

  "(5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be. 

          Upon acceptance of an offer of settlement as stated in sub-regulation (5) by the insured, the payment of the amount due shall be made within 7 days from the date of acceptance of the offer by the insured. In the cases of delay in the payment, the insurer shall be liable to pay interest at a rate which is 2% above the bank rate prevalent at the beginning of the financial year in which the claim is reviewed by it.."

          Here in the case in hand, the complainant had sent all the documents to the 4^th opposite party who is the TPA by courier and as per Ext.A8 the track report of the same were delivered to the 4^thopposite party on 13-3-18.  The 3^rd opposite party settled the claim only on 06-03-19 delayed by about one year.  As per the above said IRDA regulation, the 3^rd opposite party has made deficiency in service by causing delay of 328 days in contrary to the regulation of turnaround time of 30 days.

          Thus in the light of above discussion we find that the 3^rdopposite party has committed deficiency of service by causing delayed settlement.  Thus the opposite party is liable to compensate the complainant who has availed theservice of the 3^rdopposite party by availing the insurance policy.  Point No.1 and 2 are found against the 3^rd and 4^th opposite party.

1. Hence the complaint is partly allowed directing the 3^rd and 4^thoppositeparties to pay an interest at the rate of 8% for Rs.4,410/- from the date of receipt of documents ie.13-03-18 till the date of payment.
2. The 3^rd and 4^thoppositeparties are further directed to pay a compensation of Rs.10,000/-.

Opposite parties are jointly and severally liable to pay the amount.

Order shall be complied within a period of 30 days from the date of receipt of Order.If not complied as directed the compensation amount will carry 6% interest.

Pronounced in the Open Commission on this the 30^thday of March, 2021.

Smt. Bindhu R. Member                 Sd/-

Sri. Manulal V.S. President             Sd/-

Appendix

Exhibits marked on the side of complainant

A1  :Copy of invoice dtd.24-12-2016

A2  :  Copy of the Theft and accidental damage certificate

A3  :  Copy of e-mail letter dtd.17-12-17

A4  :  Copy of e-mail letter dtd.04-05-18

A5  :  Copy of e-mail letter dtd.07-04-18

A6  :  Copy of e-mail letter dtd.12-05-18

A7  :  Copy of e-mail letter dtd.13-02-18

A8  :  Copy of shipment summary of DTDC dtd.13-03-18

A9  :  Copy of estimation confirmation dtd.12-12-17  of Samsung

A10  :  Copy of acknowledgement from DTDC

Exhibits marked on the side of opposite party

B1  :Copy of claim form

B1(a) : Terms and conditions of the claim form

B2  :  Claim form issued by the Oriental Insurance Co. ltd.

B3  :  Description letter of the incident by petitioner to the opposite party

B4  :Claim certification dtd.18-01-19

B5  :  Claim payment voucher

B6  :Letter dtd.8-03-19 by the Oriental Insurance Company to District

Consumer Redressal Forum`

By Order

                                                                                                Senior Superintendent