PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                                                          CONSUMER COMPLAINT NO. 81/2023

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Shivanjali INFRA, Represented through its Proprietor Anjali Santosh Singh,

Aged about 25 years, D/O-Sri. Santosh Bachhu Singh,

R/O- House No. 144/4, Nirmal Nagar, Asangaon, Tal-Shahapur,

Thane, Maharstra-42101,

At present, At-LIC Colony, Near Bandhan Bank, Lane No.3, PO-Sankarma,

Ps-Ainthapali, Dist-Sambalpur-768006, Odisha.         

Represented through her Father And Power of Attorney Holder Santosh Bachhu Singh, aged about 46 years, S/O-Sri. Bachhu Singh, R/O- House No. 144/4, Nirmal Nagar, Asangaon, Tal-Shahapur,

Thane, Maharstra-42101,

At present, At-LIC Colony, Near Bandhan Bank, Lane No.3, PO-Sankarma,

Ps-Ainthapali, Dist-Sambalpur-768006, Odisha.                                          ………………......Complainant.

Vrs.

1. Antony Commercial Vehicles Pvt. Ltd.

Authorized Dealer Ashok Leyland Heavy Vehicles, At-9^th Floor, Office No. 903,904,& 905, NMS Totanium, Plot No. 74, Sector 15, CBD Belapur, Navi Mumbai, 400614.

2. Ashok Leyland Limited No.1 Sardar Patel Road, Guindy Chennai-600032,

Tamilnadu, India

3. Divisional Manager, Oriental Insurance Company Ltd, At-Sarlakani Chowk, PO-Dhankauda, PS-Dhanupali,

Dist-Sambalpur, Odisha, PIN-768006……………......Opp.Parties

Counsels:-

1. For the Complainant         :- Sri. D.Pradhan & Associates
2. For the O.P. No.1 & 2        :- Ex-parte
3. For the O.P. No.3                           :-Sri. G.C. Pandaa & Associates

Date of Filing:23.05.2023,Date of Hearing :27.02.2024,Date of Judgement : 22.04.2024

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The case of the Complainant is that the Complainant is the owner of Ashok Leyland G.TIPPER bearing No. MH-04KF-1071 and insured the vehicle with O.P. No.3 vide policy No. 345600/31/2022/4385 for the period 29.10.2021 to 28.10.2022. Vehicle was purchased from O.P. no.1 on 26.10.2019 for an amount of Rs. 39,35,970/- and hypothecated with federal Bank ltd. Raigarh-410206. The O.P. No.2 is the manufacturer of the vehicle.

On 08.01.2022 while the vehicle was loaded with boulder and transporting from Jijak Quarry to Jijan crusher site on the way under Wade Police Station Dist-Thane, Maharashtra at about 9.30 P.M. was burnt and S.D. E. No.1/2022 registered in Wada Police Station. Information given to O.P. No.3 but the O.P. no.3 on different pretext avoided to attend. The O.P. no.3 arranged surveyor Mr. P. Ramesh of Mumbai Office for survey who visited the spot and submitted report.

The O.P. No.1 has given estimate of Rs. 34,05,900/-. The motor vehicle Department, Thane after visit issued fitness certificate. On 22.12.2021, till date the O.P. no.3 has not allowed the claim. Hence this case.

2. The O.P. no.1 authorised service station of O.P. no.2 and the manufacturer, O.P. no.2 have been set ex-parte.
3. The O.P. no.3, insurer submitted that the Complainant is not a consumer and owner of numbers of commercial vehicles used for profit generation & commercial purpose and accordingly this complaint is not maintainable. The policy of tipper vehicle was valid at the time of fire accident. The Complainant has not submitted any investigation report of police or fire officer. The Complainant informed about the occurrence after some days of accident and thereafter the surveyor deputed who submitted report on 03.02.2022.

The Complainant has not submitted the final estimate and claim form for which the O.P. no.3 unable to engage a final surveyor and process the claim. The incident took place on 08.01.2022 but estimate submitted on 08.06.2022. Due to non-submission of documents claim has not been processed. There is no deficiency on the part of the O.Ps.

4. Perused the documents filed by the Complainant?

1. Mail dated 18.11.2022 of the Complainant to O.P. No.3.
2. Copy S.D.E. No. 01/2022 and Panchama dated 10.01.2022.
3. Copy of RC Book No. MH 04KF-1071.
4. Transport tax receipt dated 11.01.2022.
5. Certificate of fitness.
6. Pollution certificate.
7. Goods permit(HGV).
8. Copy of insurance Policy No. 345600/31/2022/4385.
9. Estimate of O.P. No.1 dated 15.04.2022 for an amount of Rs. 34,05,900/-.
10. Power of Attorney issued by Anjali Santosh Singh in favour of Santosh Bachhu Singh.

The O.P. No.3 submitted the following documents

1. Policy No. 345600/31/2022/38 for new Volvo Crawler Excavator.
2. Policy No. 3456/31/2022/1429 for New PC210LC Excavator.
3. Policy No. 34560/44/2019/71 for Ozco 2200 A Rock Breakers.
4. Vehicle No. 04KF 3978 Policy No. 345600/31/2021/8899.
5. Vehicle No. 04 KF 3980 policy No. 345600/31/2021/8900. Bharat Benz Tipper.
6. OD 15 Q-5175 policy No. 345600/31/2021/8019.
7. OD 15Q 4205 policy No. 345600/31/2021/9052.
8. Bharat Benz 2523C Tipper Policy No. 345600/31/2020/11652
9. OD 15Q 4705 policy No. 345600/31/2021/9051.

5. Perused the documents filed by both the parties and following issues are framed:

ISSUES

1. Whether the complainant is not a consumer of O.PNo.3 and for commercial activities having multiple vehicles the complaint is not maintainable.
2. Is the O.P. No.3 deficient in its service not making any settlement of the claim of Complainant?
3. What relief the Complainant is entitled to get?

Issue No.1:- Whether the complainant is not a consumer of O.PNo.3 and for commercial activities having multiple vehicles the complaint is not maintainable.

It is the pleading of the Complainant that the Complainant is earning her livelihood plying the vehicle and engaged in transport business. The O.P. No.3 in its version submitted that the Complainant is having multiple vehicles and admitted that the Complainant is engaged in transport business. It is the further admission of both the parties that for vehicle No. MH-04 KF 1071 policy No.345600/31/2022/4385 was issued by O.P. no.3 and it is valid w.e.f. 29.10.2024 to 28.10.2022.

In Laxmi Engineering works Vs. P.S.G. Industrial Institute the hon’ble Court(1995) 3 SCC 583 held that “Commercial Purpose” it should be looked into, in the facts and circumstances of each case to consider the purpose for which goods and services are brought or availed. The goods and services must be brought/availed for livelihood.

In another decision National Insurance Co. Ltd. Vs. Harsolia Motors Vs other the Hon’ble Supreme Court held that Civil Appeal No. (S) 5352-5353 of 2007 dated 13.04.2023 hiring of insurance Policy in clearly on act for indemnifying a risk of loss/damage and there is no element of profit generation. The Complainant is an Enterprise running commercial vehicle it does not mean that all the policies availed from O.P. No.3 is to earn profit rather the Complainant herself indemnified from loss/damage which is taken in loan basis from Federal Bank Ltd. Raigarh. Which is evident from the R.C. Book submitted.

Accordingly, the issue is answered in favour of the Complainant and as a consumer this Complaint is maintainable before this Commission.

Issue No.2 Is the O.P. No.3 deficient in its service not making any settlement of the claim of Complainant?

It is the admission of both the parties that the insurance policy was in force and due to fire damage caused to the vehicle and S.D.E.No. 01/2022 was registered before the Wada Police Station. The O.P. No.3 not reflected the claim number of the vehicle nor submitted the preliminary Survey Report. The O.P. No.3 simply submitted that the insurer engaged a Surveyor for spot Survey and the Surveyor submitted the report on 03.02.2022.

The O.P. No.3 further alleged that all the documents for final claim has not been submitted for which the O.P. No.3 unable to process the claim. Here question arises.

1. The O.P. No.3 not disclosed the date of receipt of claim intimation on the basis of which Surveyor was deputed.
2. The O.P. No.3 not submitted the correspondences of the Complainant and Surveyor nor any documents relating to claim.
3. The O.P. no.3 not submitted the preliminary Survey Report.
4. The O.P. No.3 not submitted any correspondences made regarding disposal of final claim.

It proves that the O.P. no.3 is deficient in service ignoring the claim of the Complainant and engaged itself to prove that the Complainant enterprise is involved in commercial activities.

The issue No.2 is answered in favour of the Complainant.

Issue No.3:- What relief the Complainant is entitled to get?

From the Supra discussion it is established that there is deficiency on the part of O.P. No.3 for delaying the process of claim and even after submission of Preliminary Survey report dated 03.02.2022 no any step was taken and the Complainant is entitled for the relief claimed. The Complainant submitted the estimate of repairing of vehicle amounting to Rs. 34,05,900/- and not submitted the detail status of the vehicle at present and prayed for supply of a new vehicle of G.Tipper of Ashok Ley land Ltd. Model to including loss of Rs. 5000/- per day to-wards loss of income. The Complainant not submitted any documentary evidence to show that his income is Rs. 5000/- per day from the vehicle.

Taking into consideration the circumstances of the case following order is passed:

ORDER

The Complaint is allowed on contest against the O.P. No.3. The O.P. No.3 is directed to pay Rs. 34,05,900/- with 12% interest P.A. w.e.f. 10.01.2022 to the Complainant through the financier Federal Bank Ltd. Raigarh-410206 within one month of this order. In case of non-payment the amount will cover 18% interest P.A. till realisation. The O.P. No.3 is liable to pay compensation of Rs. 1.00 lakh and litigation expenses of Rs. 20,000/-.

Order pronounced in the open court on this 22^nd day of April 2024.

Supply free copies to the parties.