The case of the complainant, in a nutshell, is that the complainant is the owner of a TATA Medium Goods Vehicle (Truck) manufactured in the year 2006 being registration No. WB-73A-8465 with goods carriage permit up to 20.04.2016 along with certificate of fitness till 25.04.2012 permit valid up to 31.12.2011 in Sikkim under insurance coverage with OP No.1, National Insurance Company Limited, Siliguri Divisional Office, Hill Cart Road, Siliguri, West Bengal under policy of Insurance renewed being No. 150600/31/11/630000360 valid from 21.04.2011 till 20.04.2012 on receipt of Insurance premium amounting to Rs.13,424.00/- while sum Insured with Rs. 4,29,840/- plus others.  The said vehicle was previously insured with the Oriental Insurance Company Ltd., Malhotra Towers, Pradhannagar, Siliguri. 

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It has been further contended in the petition of complaint that in the night of 30.07.2011/31.07.2011 the complainant’s licensed driver, Kiran Rai, was coming by driving the complainant’s said vehicle in empty condition from Sikkim to Siliguri and then near Paglajhora (National High Way 31A) the driver lost his control over the vehicle and as such the said vehicle along with driver fell down in river Teesta.  On receiving information of that unfortunate incident complainant took every effort to find out the missing vehicle and its driver but he failed in his attempt.  The complainant went to Sevoke Police Post under P.S. Kurseong on 01.08.2011 for lodging report of falling down of the vehicle with its driver and missing of the vehicle along with driver but the officer in charge of that Sevoke police post did not take the report and advised him to make efforts to trace out the missing vehicle and the driver. However, on 03.08.2011 matter was accepted by the Sevoke police post and the same was registered as G.D. No. 49 dtd. 03.08.2011.  The complainant approached Rafting Team-Chitrey Wayside Inn and River Rafting Centre, Department of Tourism, Darjeeling Gorkha Hill Council, Chitrey Fatak Kalimpong but they also refused to take immediate risk due to speedy flowing of water of Teesta and ultimately the team could not find out the truck nor the driver due to high speedy water in the river Teesta.  Police did not record or treat said GDE as FIR.  The complainant repeatedly requested The Superintendent of Police, Darjeeling and subsequently said GDE was treated as FIR as per judicial order of Ld. Additional Chief Judicial Magistrate, Kurseong on 31.03.2015 where direction was there to investigate the case in accordance with law.  Prior to this the complainant addressed a letter to the Superintendent of Police Darjeeling dtd. 11.08.2013 requesting therein to treat the said GDE No. 49 dtd. 03.08.2011 as FIR and at this one Mojammel Hossain, ASI of Police, Sevoke Police post submitted his investigation report to the inspector in charge Kurseong P.S. vide his report dtd. 15.11.2013.  The matter was informed to the insurer by the complainant on 01.08.2011 verbally as well as in writing and complainant also made claim as per policy in force.  OP No.1 being insurer asked the complainant to submit the documents like final police report, original fitness certificate and original tax token.  The complainant in the petition of complaint further stated that as the police did not treat the GDE as FIR so the final police report (FRT) was not submitted by the police to the Ld. court, so the complainant was unable to submit final police report to the OP No.1, insurer and thereafter on receipt of the certified of final police report complainant vide his letter 23.11.2015 submitted certified copy of the FRT.  It is alleged in the petition of complaint that no surveyor-Loss Assessor was appointed by the OP-Insurer in this case instead the insurer deputed an investigating agency, proforma OP No.3.  It is claimed in the petition of complaint that complainant submitted all original

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documents but insurer made deficiency in service and unfair trade practice with gross negligence and accordingly this instant case has been initiated by the complainant with a prayer for direction of payment of a sum of Rs. 4,29,840/- as insurance amount for which the vehicle was insured on total loss of it with another sum of Rs. 2,22,460/- as interest at the rate of 12% on Rs. 4,29,840/- on and from 01.02.2012 till the date of filing of the present complaint and another sum of Rs. 3,00,000/- as compensation for mental pain and agony and tension and also for other reliefs.

On the other hand, the OP Nos. 1 & 2 have submitted written version contending therein that the instant case is not at all maintainable and that is also barred by limitation as the claim of the complainant was closed by them on 28.10.2013.  It is specifically averred in Paragraph No. 24 of the w/v that the complainant is not a consumer with the meaning, scope, ambit and purview of the C.P Act. 1986. The OPs denied in written version almost all the contentions and allegations of the petition of complaint and it is one of the specific cases of the OPs that the complainant did not submit the proper and lawful acceptance of FRT though the same has been submitted long after the closure of the claim of complainant and prior to that very many letters and reminders in that connection were sent from the part of the OPs to the complainant seeking production of some documents including vehicular documents but complainant was reluctant to produce the same for absence of which the OPs compelled to close the claim and it is further submitted that the OP-Insurer cannot go behind the terms and conditions of the Insurance Policy ignoring those conditions as the relationship of insured and insurer is created by an insurance contract and the definition given in the policy is binding on both this parties and they are both bound by the terms of the contact, hence, the claim was closed on 28.10.2013 and accordingly OPs have prayed for dismissal of the present complaint. 

The complainant has filed some documents here in this case which are in Xerox copies containing page Nos. 1 to 28 and thereafter complainant filed his affidavit in chief as PW-1 in support of the petition of complaint and subsequent to that complainant has filed some documents on 11.05.2017 which includes some information under section 6 of Right of Information Act. 2005 and it is pertinent to note here that some documents were also filed on that date from the side of the OP-Insurance Company as per order of this Forum which include certified copy of FRT and some vehicular documents in respect of vehicle being No. WB-73A/8465 and the report of one Mahesh Thakkar, the investigator over the matter of missing of Truck of the complainant which Truck is in question here in this case and that report is of dtd. 24.03.2012 as also the terms and conditions of commercial vehicles package policy is

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submitted.  On behalf of the OP-Insurance Company the examination in chief on affidavit has been filed by one Toyanath Chamlagain as Assistant Manager of OP-Insurance Company as DW-1(OPW-1).  In this context, it is important to note here, that both the parties prior to argument have submitted their written notes on argument respectively before this Forum.  On the basis of above materials on record this Forum framed issues as follows for the determination of this case:-

ISSUES

1. Is the complainant rightly a consumer as per section 2(1)(d) read with section 2(1)(o) of the C.P. Act. 1986?
2.  Has there been any deficiency in service upon the complainant from the side of the OPs?
3. Has there been any unfair trade practice adopted by the OPs upon the complainant?

4. Is the complainant entitled to get the relief/reliefs as prayed for?

DECISION WITH REASONS.

Issue No. 1, 2 &  3.

These three(03) issues are taken up together for discussion and consideration at first as those are related with one another.

During argument Ld. advocate for the complainant submitted that the incident was taken place on 30.07.2011/31.07.2011 night while the driver of the vehicle of the complainant being No. WB-73A-8465 which was empty was coming from Sikkim to Siliguri and when the said vehicle’s (Truck) driver, Kiran Rai, losing its control fell down in River Teesta from National High Way 31A near Paglajhora and thereafter even in spite of best efforts from complainant neither the truck nor its driver ever traced out. It is argued that one GD was entered by the complainant over the incident on 03.08.2011 as accepted by Sevoke Police Post under P.S. Kurseong being registered as GD Entry No. 49 dtd. 03.08.2011 and the complainant informed the matter and made claim to the OP-Insurer on 01.08.2011 to which the insurer responded by sending a letter dtd. 20.04.2012 seeking documentary evident as against the claim including submission of final police investigation report over the question of accident of the vehicle and ultimately it is further argued that even in spite of supply of all documents to the OP-Insurance Company the matter of claim of complainant became closed by a letter of OP-Insurance Company dtd. 28.10.2013.  Ld. advocate for the complainant further argued that as per Insurance Act. under section 69UM it is mandatory to obtain a report from surveyor and loss assessor but no surveyor was appointed on the other hand OPs appointed one

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investigator, here in this case proforma OP No.3, commercial Investigation Bureau for undertaking investigation of the claim lodged by the insured and in this context Ld. advocate has drawn the attention of this Forum quoting some portions of the report and ultimately Ld. advocate submitted that this is a genuine case which the complainant has been able to prove, hence, complainant is entitled to get relief as prayed for. 

The Ld. advocate on behalf of the OPs at the very outset of argument submitted confidently that this instant case is not maintainable before this Consumer Forum as the owner-complainant is admittedly an owner of three commercial vehicles so the complainant is not coming as a consumer within the meaning, scope and purview of section 2(1)(d) C.P. Act. 1986 and in this context Ld. advocate referred judgment of the Hon’ble Supreme Court of India in Laxmi Engineering Vs P.S.G. Industrial Institute reported in (1995) 2 SCC 583  and referred another judgment in between Hardesh Kumar Vs Chairman cum Managing Director, Allahabad Bank & 2 others reported in (2016) 2 CPJ 647.  It is also argued by the Ld. advocate that in this case one FRT over the case under section 279/427/304A of IPC was initiated on FIR No. 67/15 with Kurseong P.S which FRT was not accepted finally by the Ld. court of ACJM in Kurseong  Ld. advocate for the Ops also pointed out the matter of limitation in respect of filing of this case and stated that this case is hit by section 24A of the C.P. Act. 1986 and thus reiterated that in absence of documents over the accident of the vehicle in question the OPs rightly closed the claim as ‘No claim’ by sending letter dtd. 28.10.2013 to the complainant. 

During consideration we have scanned the documents as produced by both the sides and from those documents particularly from the letters as sent from the side of the OPs it is found that OPs from the very beginning over the claim as lodged by the complainant in respect of the incident were asking to the complainant for production of some documents of the vehicle in question particularly final police report in the matter of accident.  In this context we have gone through the report of the investigators as produced from the side of the OPs.  The complainant’s side stated in one hand that the OPs did not appoint surveyor but appointed investigators and at the same time quoted some portions of the report of that investigators appeared in favour of the complainant but on perusal of report of the investigators it is crystal clear that over the note “our comments” in Paragraph No. 5 as well as in Paragraph No.4 the proof of exact cause of loss of the vehicle has been emphasized and questioned.  From the papers and documents over the incident orienting the vehicle which are police papers one thing is clear that neither the vehicle nor the driver of the said vehicle in question has been traced out and it is

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the admitted position about the incident but as regards the accident of the vehicle the questions how it occurred on that fateful night and why the vehicle (Truck) and the driver were not traced out even after search by rafting team over the River Teesta that remained unanswered by means of any cogent document or evidence. The incident was taken place on 30.07.2011/31.07.2011 at night in between 02 hrs to 04 hrs and the matter was on diarised 03.08.2011 and no specific case of vehicular accident was started and it is also found from the record that the complainant was doing his best for lodging the FIR about the incident but failed and ultimately filed an application under section 156(3) of Cr.P.C. before the court of Ld. Additional Chief Judicial Magistrate, Kurseong for treating his application as FIR on 31.03.2015 and here the question again comes why after more than three and half years right from the date of incident this application under section 156(3) of Cr.P.C. was filed.  After completion of investigation the report was filed by the investigating officer of the case over Kurseong P.S. Case No. 67/15 dtd. 12.04.2015 under sections 279/427/304A of IPC and from the report it is seen that there was no possibility of tracing out and recovery of the vehicle in question along with the driver, hence final report and from the certified copies of order sheet being order Nos. 01.to 05 passed by Ld. ACJM, Kurseong it appears that over such FRT being No. 23/15 dtd. 31.05.2015 of Kurseong P.S. case under sections 279/427/304A of IPC submitted by IO, Sub-Inspector of Police, Nirmal Roy notice was issued upon the de facto complainant but ultimately whether protest petition was submitted by the complainant over the matter of FRT that order sheet has not been filed before this Forum.  It is to be noted here that matter of accident of the vehicle as raised in this case is required to be proved by the cogent documents by the complainant and thereafter the question of indemnifying the insured by the insurer comes which is lacking here.  No such cogent document is placed by complainant which shows that such vehicular accident as depicted in this case was occurred.  The Proof of accident of the vehicle is not established beyond doubt.  In respect of question of limitation it is considered that this case is not hit by section 24A of the C.P. Act. 1986 as because the OP side even after closing the matter of claim by letter dtd. 28.10.2013 went on transacting letters to the complainant even on 15.09.2014 to the complainant while the case has been filed 25.05.2016 which is within two years from the date of cause of action to be treated as continuing one.  We have perused the petition of complaint where it is written that complainant insured his three vehicles being Nos. WB-73B-6845, WB-73B-6825 and WB-73A-8465 at one time and he had paid premium of these vehicles through single cheque No. 00462886 of amount Rs. 53,318.00 dated 20.04.2011 of Canara Bank, Siliguri. It is in the petition of complaint that he became sufferer of the

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vehicle in question which is the source of livelihood but on the other hand it is perused that complainant is the owner of three trucks as mentioned above and here on this point OP side has drawn the attention of the Forum to the definition of consumer enumerated in Section 2(1)(d) of the C.P. Act. 1986 and referred cases noted earlier as reported in (1995) 2 SCC 583 and (2016) 2 CPJ 647 and we have gone through the judgments as referred as well as perused the section 2(1)(d) of the C.P. Act. 1986 especially the ‘Explanation’ clause of this section where in defining consumer it is mentioned “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.  It has been held in the judgment of Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute that where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit then he cannot be a consumer within the meaning of section 2(1)(d) of C.P. Act. 1986.  Here in this case that purpose of earning of complainant’s livelihood by means of self employment is not oriented with the vehicle in question as it is the admitted position that complainant is the owner of two other trucks which matter is coming also from the materials and documents produced by the complainant and thus this case is not within the purview of explanation given below the definition of section 2(1)(d) of the C.P. Act. 1986 and accordingly the complainant is not a consumer as per definition in section 2(1)(d) of the C.P. Act. 1986 The 2^nd referred judgment of Hon’ble National Commission as reported in (2016) 2 CPJ 647 is also applicable here in this case against the complainant where it is held that section 2(1)(d) of C.P. Act. Act. 1986 to the extent it is relevant, excludes from the ambit of the term “Consumer” a person who hires or avails services for commercial purpose.  In a recent case reported in 2019(2) CPR 103 (NC) it is appropriate to mention here that our Hon’ble National Consumer Disputes Redressal Commission, New Delhi has been pleased to hold again that a person engaged in fairly large business cannot be said to be a consumer within the meaning of the Consumer Protection Act. 1986 and on account of that we are constrained to hold and at the same time we decide that this case is not maintainable in accordance with the provisions of C.P. Act. 1986.  Accordingly, the question of deficiency in service or that of unfair trade practice does not arise under the facts and circumstances of this instant case.  All the three issues are thus disposed of mainly on the ground that this instant case is not maintainable here in this Forum.

Issue No.4.

In view of the above discussion and consideration of the

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foregoing issues being Nos. 1, 2, & 3 as those have been decided against the complainant holding that the instant case is not maintainable as the complainant is not coming under the purview of ‘consumer’ as per C.P. Act. 1986, as a logical corollary, this issue is also decided against the complainant.  All the issues are thus disposed of.

As a result, instant case fails. 

Hence, it is,

O R D E R E D,

that the instant Consumer Case No. 59-S-2016 be and the same is dismissed on contest against OP Nos. 1 & 2 and ex-parte against pro forma OP No.3.

Let a copy of this final order/judgment be given to the parties free of cost at once.