BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.359/2015

DATED ON THIS THE 25^th November 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed for a direction to opposite party to pay a sum of Rs.2,11,680/- being the compensation, damages and legal expenses etc.,
2.     The brief facts alleged in the complaint are that the complainant is a Transport Corporation undertaking wholly owned by the Government of Karnataka for an effective transport services.  The complainant has purchased the vehicle bearing No.KA-01-F-8437 which was insured with the opposite party.  During subsistence of the policy, the vehicle met with an accident on 12.10.2010 and thereby, the complainant has got repaired the vehicle at the cost of Rs.86,680/-. A complaint was lodged in jurisdictional police station. On the very day, claim intimation form was given to the opposite party intimating the incident and damaged to the vehicle.  Opposite party neither settled the bill nor replied the notice issued by the complainant.  Hence, this complaint is filed.
3.     The cause of action arose on 18.11.2009 being the date of policy, 12.10.2010 being the date of incident, subsequently when the complainant has got issued the notices to the opposite party on 29.06.2013 and 19.07.2013 within the jurisdiction of this Forum.
4.     Opposite party appeared through advocate and filed the following written version.  The complaint is not maintainable since the complainant is not a consumer as defined under the C.P.Act.  Thereby, the complainant is liable to be rejected.
5.     Even the complaint is barred by limitation, since damage to the vehicle took place on 12.10.2010 and complaint was filed on 16.06.2015.  Even on this ground also, the complaint is liable to be rejected.  There is no deficiency of service on the part of opposite party.  It is admitted that the vehicle bearing No.KA-01-F-8437 was covered with the insurance between 18.11.2009 to 17.11.2010.  The other allegations are not accepted.  It is false to allege that the complainant had intimated this to opposite party on the date of alleged accident.  No such intimation was given to the opposite party.  The expenditure incurred for the repair of the vehicle is not admitted by this opposite party.  There is no cause of action.  The alleged one are false.  The complainant ought to have been presented within two years from the date of accident.  But, it was filed on 16.06.2015 which is clearly barred by limitation.  The opposite party is not answered the claim.  As such, the opposite party has sought for dismissal of this complaint.
6.     On the above contentions, this case is set down for evidence.  During evidence, on behalf complainant, Divisional Controller of KSRTC has filed his affidavit evidence and further evidence closed.  On behalf of opposite party, Senior Divisional Controller of the company has filed affidavit evidence and closed evidence.  After hearing both sides, this matter is set down for orders.
7.      The points arose for our consideration are:-

1. Whether the complaint is not maintainable as contended by the opposite party?
2. Whether the complaint is barred by limitation?
3. Whether the complainant establishes that there is deficiency in service on the part of opposite party, thereby it is entitled for the reliefs sought for?
4.  What order?

8.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative.

Point No.2 :- In the affirmative.

Point No.3 :- Does not survive for consideration.

Point No.4 :- As per final order for the following

:: R E A S O N S ::

9.    Point No.1:- The foremost contention of the opposite party is that the complainant is not a consumer as defined under the C.P.Act since the vehicle in question is being used for commercial purpose for earning profit by the KSRTC.  Whereas the advocate for complainant submits that the services rendered by the complainant to the general public is not for earning profit and it is only with the service motive.  Thereby, the services rendered by the KSRTC cannot be termed as commercial in nature and on that ground, the complaint cannot be rejected.  In view of such contention, the Forum has to look to the definition of the word “consumer” as per the provisions of section 2(d)(i)(ii) of C.P.Act.

“Consumer” means any person who –

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. (hires or vails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person (but does not include a person who avails of such services for any commercial purpose).;

(Explanation: for the purposes of this clause, “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);

In view of the explanation, the present complainant is not rendering transport service for earning his livelihood by means of self-employment.  On the other hand, the transport service rendered by the KSRTC is not for charity or free of costs.  On the other hand, KSRTC is collecting fares from passengers and earning profit and it becomes commercial.  Thereby, the complainant do not fall within the purview of definition under section 2(d)(i)(ii) of C.P.Act. 

10. Whereas, counsel representing the complainant relied on the ruling reported in

1. IV (2013) CPJ 336 (NC) – Canara Bank and another V/s Jain motor Trading Company and another.
2. 2009 CPJ 90 (NC) – Tata Engineering and Locomotive Ltd. and others V/s EACHCHI Ram Dangwal and another

and submits the services rendered by the opposite party was not for commercial activity generating profits.  Thereby, the complainant KSRTC becomes consumer and by relying on another judgement, he has submitted the vehicle used for commercial purpose, the complainant is the consumer, such contention not acceptable since warranty amounted to services under the act.  But, even this judgement also will not come to the aid of complainant to say that this activity of complainant is not for commercial purpose.  But on the other hand, the KSRTC is running the transport facility for the earning profit and amounts to commercial transaction.  Thereby, complainant – KSRTC is not a consumer.  As such, the complaint is not maintainable as the complainant is earning profit and it is commercial transaction.  Hence, point No.1 is answered in the affirmative.

11. Point No.2:- The other important material question of law raised by the opposite party relating to limitation.  The counsel representing the opposite party submits that as per the provision of section 24(A) of the C.P.Act, the complaint ought to have been filed well within two years from the date of accident.  From that date, the complainant ought to have been filed well within two years.  Whereas the present complaint is filed on 16.06.2015, hence complaint is barred by limitation.  Whereas the counsel representing the complainant submits that as long as the opposite party did not repudiated the claim made by the complainant.  The cause of action is continuing one.  Thereby, the cause of action survives even as on the date of complaint and there is no limitation to the complaint.  Further, it is contended by the advocate for opposite party, there was no claim made by the complainant immediately after the accident.  Thereby, there is no cause for this complaint, which is filed beyond the period of limitation from the date of alleged incident.
12. The learned counsel appearing for the complainant relied on the following judgements:-

1. IV (2013) CPJ 607 (NC).
2. IV (2013) CPJ 15A (Maharastra).
3. I (2006) CPJ 55 (Tamilnadu).
4. II (1993) CPJ 832 (Madhyapradesh).
5. I (2011) CPJ 576 (Kerala).

and argued that the insurance company is still    considering the request of the complainant.  Thereby, there is no limitation in filing this complaint.  Further argued the cause of action starts only when there is repudiation of claim by the opposite party and further submitted that the present claim is well within the time since the opposite party has not considered the claim made by the complainant.  In this case, as contended by the advocate for opposite party no documents are placed by the complainant to substantiate that there is a claim made by the complainant as on the date of incident i.e. 12.10.2010 as pleaded in para 8 of the complaint.  In the absence of such material document, it cannot be said that there is claim made by the complainant and there is repudiation by the opposite party or the opposite party is still considering the claim of the complainant.  On the other hand, on 19.07.2013, i.e. after more than two years, a letter was addressed to the opposite party by the complainant stating that claim was made relating to different buses, but the date of claim is not mentioned in this letter except saying that the claims are not settled including the damage relating to KA-01-F-8437 which relates to this case.  In the circumstances, the claim made by the complainant is definitely barred under section 24(A) of C.P.Act since the incident occurred on 12.10.2010 and the complaint filed on 16.06.2015, it is beyond period of limitation prescribed under section 24(A) of C.P.Act.  Hence, point No.2 is answered in the affirmative.

13. Point No.3:- In view of the findings recorded on point Nos.1 and 2, relating to question of law, point No.3 do not survive for consideration.
14. Point No.4:- In view of the finding record on point Nos.1 to 3, complaint is not maintainable and it is barred by limitation and liable to be dismissed. Hence, we pass the following

:: O R D E R ::

1. The complaint is dismissed as not maintainable and it is barred by limitation.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 25^th November 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER