PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                             CONSUMER COMPLAINT NO.64/2022

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Sushil Kumar Agrawal,

S/O- Late Radheshyam Agrawal,

R/O- Dharamsalapada, PO/Ps-Belapahar, Dist-Jharsuguda,

Director Shree Balaji Engicons Ltd. A limited company Registered under the companies Act, 1956 coporate indentity No. U50300OR1998PLC005249,

PO-Belpahar, Ps-Belpahar, Dist-Jharsuguda.                         ...………..Complainant

Versus

1. New India Assurance Co. Ltd,

Divisional Office, Po-Budharaja,

Ps-Ainthapali, Dist-Sambalpur,

PIN-76804, Odisha.

2. Kotak Mahindra Finance,

Sambalpur, PO-Head Post Office, Ps-Town,

Dist-Sambalpur-768001, Odisha.                        …………...Opp.Parties

Counsels:-

1. For the Complainant          :-      Md. Jafer & Associates
2. For the O.P.No.1                 :-      Sri. A.K. Das, Advocate
3. For the O.P. No.2                            :-      Sri. A.K. Sahoo & Associates

Date of Filing:30.08.2023,Date of Hearing :24.07.2023,Date of Judgement : 11.09.2023

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The Complainant is a ‘Director’ of a Shree Balaji Engicons Ltd and the objects of the Company is to execute excavation, filing, Construction, contract, Road, bridges etc. transporting building/Construction materials. The Company purchased a TATA LPK 2523 CR HD BS-IV bearing Regd. No. OD-23J-5964 on hire-purchase basis from Kotak Mahindra Finance Ltd.Jharsuguda Branch. The Vehicle was insured with O.P. No.1 after deposit of Rs. 38,177/- for the period 21.10.2020 to 20.10.2021 covering own damage premium(A) and liability premium.

On 03.09.2021 at about 3A.M. the vehicle capsized on N.H. near Balisani, Tangarpada while unloading earth materials and right side of the vehicle got damaged. Prasant samal, driver of the vehicle informed the company and Jenamani Praksh Nayak Senior Executive H.R. reported the incident before Kamakhya Nagar Model Police Station, Dhenkanal vide S.D. No. 2 dated 03.09.021. Abhaya Kumar Parida, A.S.O. of the P.S. investigated the matter and made the station Diary entry. The O.Ps were informed. Gajraj Automobiles Pvt. Ltd., authorised station repaired the vehicle vide Job card No. Gajraj –RP-1-2122-003706 dated 25.10.2021 and Complainant spent Rs. 6,93,145/- and vehicle was received on 31.01.2022.

On 03.09.2021 claim No. 12220031210390027927 was registered by the O.P. no.1 with all papers. While making the claim supervisor of the Complainant mentioned the load as centimetre instead of matric Ton and letter was also given to OP.No.1 on 31.03.2022 along with documents. The O.P. No.1 vide letter dated 27.06.2022 informed that morum, sand, chips etc. load challan are in Cum/cubic meter and not in M.T. The load challan issued by the Complainant Company carrying its own goods and the excel report for 02.09.2021 to 03.09.2021 submitted by Complainant can not be treated as proper evidence. The caim was repudiated as load at the material time of accident exceeded 5% of the regd. Laden weight. Being aggrieved complaint was filed.

2. The insurance Company O.P. No.1 in its version submitted that the laden weight of the alleged vehicle is 28000 KG and unladen weight is 11,108Kg as per registration certificate. The vehicle is permitted to carry 16892 Kg, but the Complainant loaded beyond 5% of actual laden weight of vehicle for which the vehicle became unbalanced and got damaged. The Complainant has violated the terms and conditions of the insurance policy. The vehicle was for private use but used as commercial vehicle to make profit. As the vehicle is used for commercial purpose, the case is not maintainable and the complaint is liable to be dismissed.
3. The O.P. No.2 in its version submitted that the Complainant entered into agreement No. CV-4126759 dated 03.11.2019 and agreed to repay in 58 installments. There is no any case against the O.P.No.2 and accordingly the complaint is liable to be dismissed. The Complainant is not a consumer of the O.Ps as vehicle is used for commercial purpose only.
4. Perused the documents filed by the parties. From G.D. No. 002 dated 03.09.2021 it reveals that the Hyva vehicle No. OD-23J-5964 was capsized while unloading the earth materials on side of N.H. under Kamakhya Nagar Police Statiion. In the vehicle exit challan for Kantaripath S.L. No. 48 dated 03.09.2021 it is apparent that the vehicle was carrying ‘Morum’ quantity 13.495CM and the driver was Prasanta Samal and Gate keeper Manoj Barik. It is admitted by the Complainant that Prasanta Samal was the driver. The Complainant submitted that the vehicle was capsized while unloading the earth materials where as the O.P. No.1 established that the vehicle was carrying ‘Morum’ over loaded with 5% of laden weight. The Complainant has suppressed the material facts.

1Cubic Meter= 1602 Kg wt.

13.495 CM = 1602 x 13495

                    = 21,619 Kgs

• Difference = (21619+(11,108)-28000)
•                  = 4727Kgs
•  

It is established by the O.P. No.1 that the vehicle was overloaded with 4727 kgs which is a violation of the policy terms. This is the ground of repudiation of the claim. Neither party filed any copy of repudiation letter.

5. The Complainant is a director of the Shree Balaji Engicons Ltd. which is public limited company having authorised share capital Rs. 26.00 croses and its object is to “ply, lease out, hire out, purchase, sale and to seal in the truck, buses tippers, dumpers, pay loaders….. etc. From the objectives it is clear that tit is purely a commercial organisation. The onuns lies on the Complainant to prove that the vehicle was its only source of income for livelihood, whereas the memorandum of the company clearly establish that the vehicle was for commercial purpose which is supported by the R.C. Book. No doubt policy No. 12220031200350087727 was valid on the date of accident but the stand taken by Complainant that the Company was registered to earn their livelihood is not acceptable as the authorised share capital of the company as on 27.03.2009 was Rs, 1.5 croces increased to Rs. 26.00 crores as on 05.11.2019. The Complainant is not a consumer of the O.P. No.1 as the activities/objectives of the Complainant is purely commercial in nature.

The O.P. No.2 is the financier and proforma O.P.

Accordingly it is ordered:

ORDER

              The Complaint is dismissed against the O.Ps. No cost.

              Order pronounced in the open Court today on 11^th day of September, 2023.

  Free copies of this order to the parties are supplied.