DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __145_ _ OF ___2017
DATE OF FILING :_23.11.2017 DATE OF PASSING JUDGEMENT: _24.7.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sk. Borhanuddin, son of late Raisad , Proprietor of Borhan Jorry Enterprise of Village Durgapur, P.O Mayapur, P.S Budge Budge, Dist. South 24-Parganas.
O.P/O.Ps : 1. The Manager, Universal Sompo General Insurance Co. Ltd. 401, 4th FGloor, Sangam Complex, 127, Andheri Kurla Road, Andheri (East), Mumbai – 400039. And also at 42/A, Shakespeare Sarani, Express Tower, 7th Floor, Kolkata – 17, P.S Shakespeare Sarani.
2. The Manager, Allahabad Bank, Rajibpore Branch, P.O Achipur, P.S Budge Budge, Block Budge Budge, Dist. South 24-Parganas, Kolkata – 138.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Briefly stated, the facts leading to the filing of the instant case by the complainant are that complainant is a businessman and business is the only source of his income. He took a cash credit loan from the O.P-2 . O.P-2 has a tie-up with the Insurance company i.e O.P-1. Having been pressurized, the complainant purchased an Insurance Policy from the O.P-1 and thereby the total stock of the business of the complainant was insured with the O.P-1. Total sum assured was Rs.3 lac and the complainant was required to pay a premium of Rs.1186/- . Thereafter on 1.1.2016 a burglary took place in the godown of the complainant and all the finished goods kept in the godown were stolen away. A claim was lodged by the complainant with the Insurance company i.e O.P-1. But the O.P-1 only allowed the said claim of the complainant to the extent of Rs.1,11,193/-. This order of O.P-2 allowing claim of the complainant in part did not satisfy the complainant and ,therefore, the complainant has filed the instant case ,praying for issuing a direction upon the O.P-1 to settle the claim of the complainant and also to pay compensation etc. Hence, this case.
Notice of the case was delivered to the O.P-2, vide order no.5 dated 28.2.2018 . He did not enter into appearance and ,therefore, the case is heard exparte against him.
O.P-1 made appearance in the case but no written version is filed by him and ,therefore, the case is also heard exparte against him.
POINT FOR DETERMINATION
- Is the case maintainable in Law?
- Is the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
Evidence on affidavit is filed by the complainant and the same is kept in the record after consideration.
DECISION WITH REASONS
Point no.1, 2 & 3 :
A mere perusal of the complaint as filed by the complainant reveals that the case is not maintainable in Law. It is stated by the complainant that he carries on an embroidery business. In paragraph 2 of the complaint, it is stated by the complainant that he is the sole proprietor of his business and that the said business is the only source of income. From this averment of the complainant, it stands prima facie established that the complainant runs a business. The loan was taken by the complainant from the O.P-2 for the purpose of business only . So, the loan was taken for commercial purpose. The goods which are kept in the godown of the complainant were insured with the Insurance company i.e O.P-1. This transaction between the complainant and the O.P-1 is also for commercial purpose. As per rule, the Forum does not have any jurisdiction to deal with such a case of commercial transaction. But there is an exception to this general rule and exception is provided in the “ ËXPLANATION” as appended to Section 2(1)(d), C.P Act, 1986. It is provided in the said “EXPLANATION” that commercial purpose will not include any service availed by a consumer exclusively for the purpose of earning his livelihood by means of self employment. So, it is found that a transaction will not be regarded as commercial transaction if two ingredients are satisfied by the complainant. The two ingredients are; (1) the business of the complainant must be exclusively for earning his livelihood and (2) the said business must be conducted by way of self employment. If the complainant fails to aver and proof these two ingredients, commercial transaction will not be excluded and in that case , complainant for commercial transaction will not be treated as a consumer under section 2(1)(d) of the C.P Act, 1986. On perusal of the pleading of the petition of complaint it is found that there is no such averment in the said petition. It is stated by the complainant therein that said business is his only source of income. He has not stated that the said business is the only source for earning his livelihood . The two phrases i.e “For earning livelihood” and “ The only source of income” are quite distinct and different. Law is not concerned with the source of income; it is concerned with the only source of earning livelihood. The business is required to be the exclusive source of earning livelihood of the complainant. There is no such averment in the petition of complaint that the business of the complainant is the exclusive source of earning his livelihood. So, the first ingredient as pointed out above does not get satisfied.
Now as to the second ingredients also referred to above, it is found that the same has also remained unfulfilled. The second ingredient requires the complainant to plead and prove that he conducts the business by way of self employment. There is no averment in the petition of complaint that the business of the complainant is conducted by himself by way of self employment. If the business is not carried on by the complainant by way of self employment, the second ingredient as referred to above is not fulfilled. As the ingredients as pointed out above have not been fulfilled, the transaction of the complainant cannot be excluded from the term “Commercial Transaction” and as such the case is not maintainable before this Forum.
In the facts and circumstances as discussed above, we do hold that we cannot entertain the instant case as being not maintainable in law, let alone give any relief to him. No further discussion is necessary regarding other two points.
In the result, the case fails.
Hence,
ORDERED
That the complaint case be and the same is dismissed exparte against the O.Ps ,as being not maintainable in Law.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
