IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 156/S/2014.                            DATED : 21.06.2017.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SMT. PRATITI BHATTACHARYYA.

COMPLAINANT             : M/S KIRTI CONSTRUCTION CO.,

  a proprietorship Concern under the proprietorship of 

  Sri Pawan Yadav, S/O Sri Shiv Narayan Yadav,

  having its registered office at Khudirampally,

  Lower Bagdogra, P.O. & P.S.- Bagdogra,

  Dist.- Darjeeling,.     

O.P.                1.                      : THE BRANCH MANAGER,

  Oriental Insurance Co. Ltd., Siliguri, 

  P.O. & P.S.- Pradhan Nagar,

  Dist.- Darjeeling,  734 003.

                                    2.                     : THE MANAGING DIRECTOR,

  Oriental Insurance Co. Ltd.,

  A-25/27, Asaf Ali Road,

  New Delhi – 110 002.

FOR THE COMPLAINANT         : Sri Arun Mishra, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

Facts of the case in brief are that the complainant M/S Kirti Construction Co. is a proprietary concern represented by its Proprietor Pawan Yadav and is carrying on business of supplying earth moving equipments and construction works through its registered office situated at Khudirampally, Lower Bagdogra, Dist.- Darjeeling. 

Complainant is the registered owner of an earth movers machine, TATA Hitachi EX70 Chain Excavator, having Chassis No.CRZ.8.19724, Engine No.CRZ.8.19724, Sl. No.0703-4275 and the said earth movers machine is being used by the proprietor of the complainant for earning his livelihood.  The machine was duly insured with the OP No.1 vide Insurance Policy No.313205/31/2010/7001 valid from 01.02.2010 to 30.01.2011 and the complainant has duly paid a sum of Rs.39,279/- as premium for the said

Contd…..P/2

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machine.  On 19.02.2010 at about 8.30 p.m. the said machine of the complainant fell down in the valley and met with an accident at NHPC project area at Rambhi and severally damaged.  The matter was reported on 21.02.2010 to the Officer-in-Charge, Rambhik Police Station vide GD Entry No.340 dated 21.02.2010.  Thereafter on 22.02.2010 the incident was reported to the OP No.1 by the brother of the proprietor of the complainant and certain documents i.e., insurance acceptance copy, copy of FIR, Tax Invoice, Insurance Cover Note etc. were supplied to the OPs.  The complainant then submitted the Insurance Claim Form to the OP No.1.  The OPs accordingly appointed investigators/surveyor for assessing the loss and as per their request the complainant has submitted all documents to the OP No.1.  Thereafter, on 03.08.2010 the OPs have issued a letter addressing to the complainant to clarify some quarries and asked for estimate from Lexicon, Matigara and accordingly the complainant has forwarded the estimate to the OPs.  Thereafter, on 17.02.2012 the OPs have issued a letter asking the complainant to inform as to why the claim of the complainant shall not be repudiated for submission of false documents and the OPs have quoted a ‘note’ in the said letter that the training certificate as issued by Mathews & Company, Kolkata dated 03.08.2007 in favour of the driver of the said machine Sri Rohit Singh is invalid.  The complainant then submitted a certificate dated 03.05.2012 issued by Mathews & Company through its letter dated 06.03.2012. 

The complainant tried its best to satisfy the OPs by submitting all relevant documents including certificate of the authority concern issued in favour of Rohit Singh who was the driver of the said Earth Movers machine at the time of accident.  Thereafter, on 10.09.2013 the complainant had been to the office of the OPs along with one certificate issued in the name of Rohit Singh by P.S. Earthmovers Pvt. Ltd., the authorized dealer of Telecom but the OPs denied to receive the said certificate and lastly on 21.03.2013 the OPs had repudiated the claim of the complainant on the ground of false document. 

Due to said accident, the said Earth Movers machine was severally damaged and the complainant sustained loss of Rs.19,80,000/- i.e., the cost of the said Earth Movers machine.  Lastly, finding no other alternative, the complainant issued a lawyer’s notice dated 26.05.2014 through its advocate by registered post with A/D to the OP Nos.1 & 2 which was received by the OPs on 27.05.2014 & 30.05.2014 respectively and after receiving the notice, the OPs gave a reply of the notice on 07.07.2014. 

Contd…..P/3

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In spite of submission of all genuine documents, the OPs for their illegal gain had arbitrarily and whimsically repudiated the claim of the complainant which is absolutely against the fair trade of practice.  Accordingly, the complainant has filed the instant case for recovery of the value of insurance claim amounting to Rs.19,80,000/- along with compensation of Rs.12,000/- towards mental pain and agony suffered by the complainant and Rs.1,000/- towards cost of lawyer’s notice and Rs.6,999/- towards professional fees of the lawyer and other expenses of the proceedings.

The OP No.1 & 2 entered appearance and contested the case by filling a written version wherein the material averments made in the complaint have been denied and it has been contended inter-alia that the case is not maintainable.  It has been contended by the OPs that the said earth movers machine TATA HITACHI WX70 is being used for commercial purpose for which the complainant cannot invoke the provisions of the Consumer Protection Act, 1986.  It is has been further contended by the OPs that the Training Certificate dated 03.08.2007 of the driver Sri Rohit Singh issued in the letter head of JCB Dealer Mathews & Company is not valid certificate as per their record and since the certificate is mandatory to drive and operate the machine/hydraulic excavator and as the driver had no effective valid and proper training certificate, rather the said operator had obtained and possessed a false and fake training certificate, the OPs Insurance Company are not legally liable to indemnify the complainant and OPs have no legal liability to pay any compensation and accordingly the Insurance Company lawfully repudiated the claim of the complainant by issuing a letter dated 21.03.2017.  It has been further contended by the OPs that the complainant has deliberately violated the provisions of the policy in question and is trying to get the claim by furnishing false and fake training certificate and as such he is not entitled to get any relief and the instant case is liable to be dismissed with cost.      

To prove the case the complainant has filed the following documents :-

1.       Xerox copy of purchase Bill of Machine, dated 30.04.2008.

2.       Xerox copy of Insurance Policy.

3.       Xerox copy of FIR dated 21.02.10.

4.       Xerox copy of Application dated 22.02.10.

5.       Xerox copy of letter to TML Financial Service Ltd. dated 01.04.10 regarding surrender of machine.

Contd…..P/4

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6.       Xerox copy of letter dated 07.04.10 issued by P.S. Earthmovers Ltd. along with service report.

7.       Xerox copy of letter dated 03.08.10 issued by Oriental Insurance Co. Ltd. add- to Kirti Construction. 

8.       Xerox copy of letter dated 12.02.12 issued by Oriental Insurance Co. Ltd. add- to Kirti Construction. 

9.       Xerox copy of letter dated 03.08.10, issued by Kirti Construction add- to Oriental Insurance Co. Ltd.

10.     Xerox copy of Training Certificate in the name of Rohit Singh dated 03.08.07.

11.     Xerox copy of certificate dated 05.03.12.

12.     Xerox copy of application for Training Certification dated 06.03.12.

13.     Xerox copy of Certificate of 03.01.08, 20.03.08. 

14.     Xerox copy of letter dated 21.03.13.

15.     Xerox copy of advocate notice dated 25.05.14. 

List of the documents submitted on the side of the OP:-

1.       Motor Insurance Certificate Cum Policy Schedule Miscellaneous Class D Vehicle package policy bearing No.313205/31/2010/7001 valid from 01.02.2010 to 31.01.2011 in respect of Hitachi EX70 Model Vehicle (New) of the complainant.

2.       Motor Spot Survey Report issued by IRDA Licensed Surveyor Mr. Chandra Sarma of Siliguri.

3.       Motor Final Survey Report issued IRDA Licensed Surveyor Mr. Kausik Saha of Kolkata – 700 0124.

4.       Training Certificate dated 03.08.2007 of Mathews & Company of Kolkata issued in the name of Mr. Rohit Singh submitted by the complainant to the OP Insurance Company.

5.       Letter dated 05.12.2011 issued by the OP insurance company to Mathews & Company, Kolkata.

6.       Letter dated 05.12.2011 issued by the OP insurance company to the Investigator, Mr. Malay Nag.

7.       Verification Report dated 21.12.2011 issued by the said Investigator Mr. Malay Nag to the OP insurance company along with an endorsement regarding the validity of the said Training certificate made by Mathews & Co. on 13.12.2011 on the said Training certificate dated 03.08.2007. 

8.       Letter dated 17.02.2012 issued by the OP Insurance Company to the complainant. 

Contd…..P/5

-:5:-

9.       Letter issued by the complainant to the OP insurance received on 06.03.12 along with another certificate dated 05.03.12.

10.     Investigation Report issued by IRDA Licensed Surveyor/investigator Mr. Arabinda Prasad Maitra, Siliguri.

11.     Endorsement regarding the validity of the certificate made by the said Sri Sambit Sarkar on the said certificate dated 05.03.12.

12.     Letter dated 21.03.2013 issued by the OP Insurance Co. to the complainant.

13.     Statement of Mr. Sambit Sarkar who submitted his statement to the said Investigator Mr. Arabinda Prasad Maitra. 

Complainant has filed evidence in-chief.

Complainant has filed written notes of argument.

OPs have filed evidence-in-chief.

          OPs have filed Written Notes of Argument.

Points for decision

1.       Whether the complainant is a consumer under C.P. Act, 1986 ?

2.       Is there any deficiency in service on the part of the OPs ?

2.       Is the complainant entitled to get relief as prayed for?

Decision with reasons

Issue No.1

The ld. advocate of the OPs during his course of argument has contended that the earth movers machine in question is being used for commercial purpose, the complainant cannot be considered as a consumer under Consumer Protection Act, 1986 and he is not entitled to get any relief.

So far as Issue No.1 is concerned we find that under Section 2(1)(d) of the Consumer Protection Act, 1986, a consumer means inter-alia any person buying any good for consideration paid or promised, but does not include a person who obtained such goods for resale or for commercial purpose.  The goods in this case means movable goods.  The complainant purchased movable goods i.e., earth movers machine/hydraulic excavator which was insured with the OPs.  The question is whether the said earth movers machine was purchased for commercial purpose or it was purchased for earning the livelihood of the proprietor i.e., complainant by means of self employment from the said goods.  It

Contd…..P/6

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is clear that the machine was not used for self employment.  The machine was let out on hire to various persons against money.  There is no evidence of any kind to show that the machine was purchased and used for the purpose of earning the livelihood of the proprietor of the complainant M/S KIRTI CONSTRUCTION CO. 

The Supreme Court has given illustration in 1995 (3) SCC Page 583 that a purchaser of a truck who purchased for plying it as public carrier means a consumer but a person who purchased an auto rickshaw, a car or a lathe machine or other machines to be plied or operated exclusively by another person would not be a consumer.  In this case, it is clear that the earth removing machine/hydraulic machine was not for earning the livelihood of the proprietor of the complainant but to make commercial gain out of it.  Earning livelihood in commercial business does not mean that it is not for commercial purpose and in such a case the burden of proofing that the purchase of the machine was not for commercial purpose lies on the person who states that he purchased the same not for commercial purpose.  Here the onus lies on the complainant but the complainant has failed to prove that he purchased the earth movers machine in question not for commercial purpose.

From the facts of this case and the documents submitted by the complainant we are of the opinion that complainant has failed to prove that it purchased the earth movers machine only for earning the livelihood of its proprietor rather it appears that the purchase of the said machine was for commercial purpose.  So, there is no hesitation to hold that the complainant is not a consumer as provided under Section 2 (1) (d) of the Consumer Protection Act, 1986.

This issue is decided against the complainant. 

Hence, it appears that the complainant is not a consumer within the purview of Section 1(d)(1) of the Consumer Protection Act, 1986.  So, we are of the view that Issue Nos.2 & 3 are not required to be discussed.

In the result, the case fails.

Hence, it is

                           O R D E R E D

that the Consumer Case No.156/S/2014 is dismissed on contest against the OPs without cost.

          Let copies of this judgment be supplied to the parties free of cost.