Decided on November 02,2006

National Insurance Co Ltd And Anr Appellant
Vinay Narain Calla Respondents

Referred Judgements :-



- (1.)THIS appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") has been filed by the appellants -Insurance Company against the order dated 6.5.2006 passed by the learned District Forum, Jaipur -II, Jaipur in Case No. 962/2005 by which the complaint filed by the complainant -respondent under Section 12 of the Act of 1986 was allowed in the manner that the appellants (Insurance Company) were directed to pay a sum of Rs. 11,700 to the complainant -respondent as amount of cost of Nokia Mobile Hand -set within a period of two months from the date of passing of the order and in case the said amount was not paid within two months, the complainant respondent would be entitled to get interest on the above amount at the rate of 9% p.a. from the date of order till realisation and the appellants were further directed to pay to the complainant respondent a sum of Rs. 2,000 as amount of compensation for mental agony and Rs. 1,000 as cost of litigation.
(2.)IT arises in the following circumstances:
The complainant -respondent had filed a complaint before the District Forum, Jaipur -II, Jaipur on 23.11.2005 stating inter alia that he had purchased a Nokia Mobile Handset from M/s. R. Electronic, Jaipur on 30.7.2004 after paying a sum of Rs. 11,700 and that mobile hanset was got insured by the complainant respondent with the appellants -Insurance Company and cover note was also issued by the appellants -Insurance Company. It was further stated in the complaint that on 17.1.2005, the complainant respondent was going towards city from his residence in the car and at that time, mobile in question was with him and it was lying on dashboard of the car and when he reached near ESI Hospital on Ajmer Road, the tyre of the car got punctured and for that, car was stopped by the complainant respondent for replacing it with stapney and when he entered in the car to take his mobile for calling his father for help, he found that the mobile handset in question was missing. It was further stated in the complaint that a report about the said incident was lodged by the complainant respondent in the Police Station Sadar, Jaipur where FIR No. 1177/05 was registered. Thereafter, a claim was preferred by the complainant respondent before the appellants through Ex. 4 on 20.1.2005, but that claim was repudiated by the appellants -Insurance Company through letter dated 25.1.2005 (Ex. 5) stating inter alia that since the mobile phone was lost from the car while mobile was kept unattended on the dash board of the car and thus, there was absence of any evidence of forced and violent entry and hence, as per Clause 1B(a) of certificate of Insurance, the claim was not covered and payable. Thereafter, the present claim was filed by the complainant respondent.

A reply was filed by the appellants -Insurance Company and in that reply, the appellants -Insurance Company took the same plea which they have taken in the repudiation letter Ex. 5 dated 25.1.2005

After hearing the parties, the learned District Forum, Jaipur -II, Jaipur through order dated 6.5.2006 allowed the complaint of the complainant respondent in the manner as indicated above holding inter alia:

(i) That the benefit of exclusion clause as claimed by the appellants -Insurance Company was not available to them as that exclusion clause was not a part of the contract between the parties and it was not disclosed to the complainant respondent by the appellants -Insurance Company.

(ii) That repudiation of claim of complainant respondent by the appellants -Insurance Company was not justified and it amounted to deficiency in service on the part of the appellants -Insurance Company.

Aggrieved from the said order dated 6.5.2006 passed by the learned District Forum, Jaipur -II, Jaipur, the appellants (Insurance Company) have preferred this appeal.

(3.)IN this appeal, the main contention of the learned Counsel for the appellants -Insurance Company is that the exclusion clause was part of the contract between the parties and, therefore, on the basis of that exclusion clause, claim was rightly repdudiated by the appellants -Insurance Company and the learned District Forum has committed serious error and illegality in not extending benefit of that exclusion clause to the appellants -Insurance Company. The findings of the learned District Forum are wholly erroneous, perverse and illegal one and, therefore, the same cannot be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
On the other hand, the learned Counsel appearing for the respondent has supported the impugned order of the learned District Forum.

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