BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, EAST SIKKIM AT GANGTOK

CONSUMER COMPLAINT CASE NO.15 OF 2019

(through video-conferencing)

{PRESENT:-            1. Prajwal Khatiwada, President

                                                 2. Anita Shilal, Member

                                                 3. Rohit Kumar Pradhan, Member}

Shri Subash Pradhan,

   S/o Shri B.B.Pradhan,

   R/o Rangpo, East Sikkim                                                ......Complainant

                                                          -Versus-

     The Branch manager,

     United India Insurance Company Ltd.,

     142 Krishna Building,

     Hill Cart Road,

     Siliguri, District Darjeeling,

     West Bengal                                                                   ....Opposite Party

FOR THE COMPLAINANT   : Ld. Counsel Shri Ashok Pradhan-                                                                         II(through video-conferencing)

FOR THE OPPOSITE     :         Ld. Counsel Shri Pema Ongchu              

PARTY:                                 Bhutia(through video-conferencing)                                                      

O-R-D-E-R

1. This is to decide a complaint filed by the complainant claiming deficiency in service on the part of the Opposite Party (OP). He has, accordingly, prayed for compensation/damages under various heads.
2. Briefly stated, it is the case of the complainant that he is the absolute owner of a Tata tanker bearing registration No.WB-73-B-7168 which he had purchased for the purpose of his livelihood and for maintaining his family. The said Tata tanker was duly insured with the OP.
3. On 04.12.2017, the said Tata tanker met with an accident at NH-10, Majhitar, Rangpo, East Sikkim while it was carrying a consignment of oil/diesel. At the time of the accident, it was driven by its authorised driver Phurba Dawa Sherpa(CW2) who held a valid driving licence. A case with regard to the accident was also registered at the Rangpo Police Station(PS).
4. According to the complainant, he duly gave the intimation with regard to the accident to the OP on 08.12.2017. Further, the OP was informed that the truck was carrying 9 kiloliters(kL) of diesel which had spilled on the road. The truck itself sustained damages for which the complainant had to incur an expense of ₹ 1,71,440/-.
5. Apart from intimating the OP about the accident and lodging his claim with it, the complainant also visited its office. However, he was informed by the OP that the matter was under process and that the licence of the driver was being verified. However, despite repeated visits the OP did not do the needful.
6. According to the complainant, the documents of the accident truck-tanker were valid at the time of the accident and the driver had a valid driving licence. The OP has as such failed to do the needful. Though he had also issued a legal notice dated 10.06.2019 to the OP it was to no avail.
7.  The complainant would, accordingly, claim that there has been deficiency in service on the part of the OP. He would thus claim compensation/damages/reliefs as follows:-

               (a) An order directing the OP to pay the RSMD[1] cover of ₹ 4,00,000/-(Rupees Four lakhs) only as per the insurance policy as there was a total damage of 9kL of diesel;

               (b) An order directing the payment of damages in respect of the truck-tanker amounting to ₹ 1,71,440/-(Rupees One lakh seventy one thousand four hundred and forty) only as per its insurance policy issued by the OP;

               (c) Compensation to the tune of ₹ 2,00,000/-(Rupees Two lakhs) only for causing mental tension, pain and harassment to the complainant;

               (d) Interest at the rate of 12% per annum on the estimated cost of vehicle from the date of accident till the realization of entire amount;

               (e) Cost of legal proceedings to the tune of ₹ 50,000/-(Rupees Fifty thousand) only; and

               (f) Any other relief/relief(s) to which the complainant may found entitled to.

8. According to the complainant, the cause of action for filing the present complaint first arose when his Tata-tanker met with the accident on 04.12.2017. It again arose when he lodged this claim before the OP on 08.12.2017 and when he sent the concerned legal notice dated 10.06.2019. Thereafter, it has been continuing with the jurisdiction of this Commission as the OP has failed to settle the claim.
9. It may be mentioned here that though the complaint was purportedly filed under Section 35 of the Consumer Protection Act, 2019 the said particular provision had not come into force as on the date of the filing of the complaint i.e., 06.11.2019. As such the complaint has been treated to be one under Section 12 of the Consumer Protection Act, 1986. Further, it is worthwhile to mention here that during the course of the present proceedings the District Forum was notified as the District Consumer Dispute Redressal Commission(District Commission) vide Notification No.04/LMU/F&CSD dated 24.06.2021 of the State Government issued under Section 28(1) of the Consumer Protection Act, 2019(published vide Sikkim Government Extraordinary Gazette No.162 dated 22.07.2021).
10. The OP filed its written version in the matter assailing the complaint on various grounds. According to it, the complainant does not fall within the definition of consumer under the Consumer Protection Act, 1986. It would deny that the accident truck-tanker was driven by a qualified driver. Instead, according to it, the concerned driver Phurba Dawa Sherpa(CW2) was not possessing any valid and effective driving licence which is clear from the verification report obtained by the investigator of the OP from the office of the District Transport Officer, Zunheboto, Nagaland which had purportedly issued the driving licence of CW2. The OP would also deny that the complainant had conducted a road test drive before employing Phurba Dawa Sherpa as his driver. According to it, it was the duty of the complainant to verify the genuineness of the driving licence of the said driver.
11. The OP would also deny any knowledge about the accident of the above truck-tanker. According to it, the concerned FIR does not say anything about the tanker having tumbled and about the diesel in it having spilled on the road. It would, accordingly, pray for dismissal of the complaint with exemplary costs.
12. The following points were framed for determination after hearing the parties through their Counsel and on careful consideration of their respective pleadings and the various documents filed in the matter. The onus of proof was fixed accordingly:-

1) Whether the complaint is maintainable?(opc)

2) Whether the accident truck bearing registration No.WB-73-B-7168(Tata tanker) was duly insured with the OP and had all its documents in order at the time of the accident?)(opc)

3) Whether the driver of the accident truck above had a valid and effective driving licence issued by the competent authority at the time of the accident?(opc);

4) Whether there has been any deficiency in service on the part of the OP?(opc); and

5) Whether the claimant is entitled to the reliefs prayed for by him?(opc)

13. The complainant examined himself and his driver Phurba Dawa Sherpa(CW2) in support of his case. The OP, on the other hand, examined the Branch Manager of its Deorali branch(Sikkim) viz., Niraj Kumar Singh(DW1) and its investigator Ashok Kumar Dutta(DW2). All of them filed their evidence-on-affidavits in the matter.
14. After the parties closed their evidence, their Counsel were heard on arguments.
15. Ld. Counsel Shri Ashok Pradhan-II, appearing for the complainant, mostly reiterated the submissions of the complainant above. According to Shri Pradhan, the complainant has been able to prove a case of deficiency in service on the part of the OP. The evidence and materials put forward by him would clearly establish his case.
16. It was contended by Shri Pradhan that the complainant has even filed the attested copy(Exhibit 11) of the FIR lodged before the Rangpo PS in connection with the concerned accident. The same would clearly establish the factum regarding the accident. Further, the complainant has also filed the original office copy(Exhibit 12) of the intimation lodged by him with the OP on 08.12.2017 regarding the accident as well as the loss of 9kL of diesel. Apart from the above documents he has also filed other documents which would clearly prove his case and the gross deficiency in service on the part of the OP.
17. It was further contended by Shri Pradhan that though according to the OP the records of the driving licence of the driver/CW2 were not found in the office of the issuing authority i.e., the office of the District Transport Officer, Zunheboto, Nagaland the said officer has not been examined before this Commission. Only a certified copy of the alleged verification report/letter purportedly issued by the said officer has been filed before this Commission which however has not been proved as per law. It was contended that the driving licence of CW2 is a genuine document which is fortified by the fact that the same office above has also issued an original verification report/No Objection Certificate(Exhibit 3) which would indicate that the driving licence of CW2 had been issued by the said office and had subsequently been renewed upto 21.12.2020. It was further contended that even if the claims of the OP to the effect that the records pertaining to the driving licence of CW2 were not traceable in the concerned office are accepted, merely on the said basis it cannot be held that it would only lead to the conclusion that the driving licence was / is fake. According to Shri Pradhan, the above office has not specifically asserted that the driving licence of CW2 is fake. Instead, it would only claim vide the above verification report/letter dated 18.04.2018 that it is unable to provide any information or to verify the genuineness of the concerned driving licence as the relevant records were not traceable. Therefore, the verification report/letter itself is inconclusive and cannot be the basis for holding that the driving licence of CW2 was fake. According to Shri Pradhan, in order to come to the finding that the driving licence of CW2 is a fake document enormous evidence is required which is clearly lacking in the matter.  In any event, according to Shri Pradhan, even if it is assumed that CW2 had an invalid driving licence the OP would not stand to gain anything and cannot avoid its liability in the matter. The complainant had made the necessary verifications with regard to the driving licence of CW2 while employing the latter as his driver as was expected of a reasonable man and could never have known that CW2 did not have a genuine licence, if at all that be the case. Further, the complainant had also done the necessary road-test driving to test the competency of CW2 and found him to be suitable for driving the Tata-tanker. As such, the OP cannot avoid its liability in the matter merely because the necessary records pertaining to the driving licence of CW2 are not traceable in the concerned office or even if it were to be fake. Reliance was mainly placed on the cases of United India Insurance Company Limited v. Lehru & Ors., 2003(3) SCC 338; Nirmala Kothari v. United India Insurance Company Limited (2020) 4 SCC 49; and Branch Manager, National Insurance Co.Ltd., v. Karma Bhutia & Ors., 2016(2) TAC 812(Sk), amongst others.
18. Ld. Counsel Shri Pema Ongchu Bhutia, appearing for the OP, on the other hand, contended that no case of deficiency in service on the part of the OP has been made out by the complainant. According to Shri Bhutia, the concerned truck was not being driven by a qualified driver as is clear from the fact that the driving licence of the CW2 which has purportedly been issued by the office of the District Transport Officer, Zunheboto, Nagaland was found not to be genuine. In fact, when the necessary verifications in that regard were made by the OP's investigator Ashok Kumar Dutta(DW2) no records with regard to it(driving licence) were found in the concerned office. According to Shri Bhutia, the same is clear from the verification report/letter bearing No.DTO-Z/DL-V/2018-19/dated 18.04.2018 of the District Transport Officer, Zunheboto, Nagaland whose certified copy has been filed in the matter by it as Exhibit A.
19. It was also submitted by Shri Bhutia that in any event the complainant has not proved that 9kL of diesel consignment was being carried in the concerned truck-tanker. Moreover, it is not a case where the said consignment belonged to the complainant thus entitling him to the compensation in that regard. Further, no witness from the concerned oil-depot from where the alleged diesel was loaded has been arraigned as a witness in the case.
20. It was further contended by Shri Bhutia that though the complainant has claimed ₹ 1,71,440/- on account of the expense incurred by him in the supposed repair of the truck-tanker no bill or document has been submitted by him to prove that the repairs had actually been carried out.
21. It was finally contended by Shri Bhutia that the complainant would not fall within the definition of consumer under the Consumer Protection Act, 1986 as the concerned truck-tanker was being utilized by him for commercial purpose.
22. We have given our anxious and thoughtful consideration to the submissions put forward by the Counsel for the parties and have carefully gone through the evidence/materials placed before us by them. The decisions cited before us have also been carefully perused.
23.  Point No.2) shall be taken up first.

“2) Whether the accident truck bearing registration No.WB-73-B-7168(Tata tanker) was duly insured with the OP and had all its documents in order at the time of the accident?)(opc)”

24. As seen above, it is the case of the complainant that his Tata tanker bearing registration No.WB-73-B-7168 which was duly insured with the OP met with the accident on 04.12.2017 at NH-10, Majhitar, Rangpo, East Sikkim while it was transporting consignment of oil(diesel). It suffered damages in the said accident and the diesel consignment in it spilled on the road. The truck was being driven by his authorised driver(CW2) and had all its documents in order. The OP, on the other hand, has denied the overall case of the complainant. The complainant has produced various documents in support of his case apart from examining himself before us. When this Commission goes through the evidence/materials put forward by the complainant it is noted that the factum regarding the accident and the truck being duly insured with the OP at the time of the accident have been satisfactorily proved. The complainant has reiterated the above facts in his evidence-on-affidavit(Exhibit 17) filed in the matter. He has also identified Exhibit 11 as the attested copy of the FIR lodged before the Rangpo PS regarding the accident on the same day. A perusal of the same would reveal that the factum regarding the accident has clearly been mentioned therein. In fact, it seems after the information regarding the accident was received at the said PS the matter was verified by Constable Bikash Sunar of the same PS pursuant to the directions of the officer-in-charge(O/c) of the PS. It has been clearly mentioned in the FIR that when Constable Bikash Sunar went to the accident spot for verifying about the matter it was found that the above truck-tanker which was reportedly on its way to Rangpo from Bageykhola, East Sikkim had met with the accident near Majhitar Cold Storage. In fact, it was also found that it had crushed one Ms. Phurba Doma Lepcha of Adarsh Gaon, Namphing, South Sikkim on the drainage side of the road. The accident tanker was supposedly driven by driver Phurba Dawa Sherpa(CW2). The FIR also mentions that the above deceased had died on the spot. The OP could not controvert the above document or the evidence of the complainant regarding the accident. It seems the intimation regarding the accident was duly given by the complainant to the OP on 08.12.2017. He has filed the original office copy of the concerned intimation letter dated 08.12.2017 before this Commission as Exhibit 12. Exhibit 12 could not be controverted by the OP. A perusal of the same would clearly indicate that the intimation regarding the accident was duly given to the OP. The official seal and signature of its authorised personnel acknowledging the receipt thereof can also been seen in Exhibit 12. The complainant has clearly proved it before us. Needless to say, the occurrence of the accident has been clearly established.
25. The evidence/materials which have come forward would also clearly establish that the accident truck-tanker was duly insured with the OP and had all its documents in order at the time of the accident. The complainant has filed the attested copy of the concerned insurance certificate/policy issued by the OP in respect of the accident truck. Exhibit 4 is the said copy which is seen to have been attested by a notaire. A careful perusal of the same would show that it is a GCV[2] Public Carrier Package Policy and has been issued by the OP in respect of the accident vehicle i.e., Tata tanker bearing registration No.WB-73-B-7168. The complainant figures therein as the insured(owner of vehicle). The policy covers the period from 26.06.2017 to the midnight of 25.06.2018. It clearly covers Own Damage(OD) with regard to which certain premium has also been paid. There is nothing to suggest that any premium amount was/is due for it. Strictly speaking, the OP(insurer) could not controvert the same. As a matter of fact, the Branch Manager of its Deorali branch, Gangtok who was examined by it before us as DW1 has categorically admitted during his cross-examination that the insurance documents of the accident Tata tanker were valid at the time of the accident. It is, therefore, clear that the accident truck/tanker was validly insured with it at the time of the accident which occurred on 04.12.2017. The complainant has also filed the attested copies of the Certificate of Registration of the accident tanker(i.e., Exhibit 1) apart from the attested copies of the tax receipt(Exhibit 7) and the certificate of fitness(Exhibit 9) in respect of the same. The description of the accident Truck-tanker has been mentioned therein. The complainant has been indicated therein as the registered owner. The necessary tax is seen to have been duly paid as per the above receipt and the vehicle has been certified to be fit as per the certificate of fitness. The complainant has even filed the attested copies of the route permit/counter-signature permit(Exhibit 10) and the licence to transport petroleum products on land(Exhibit 5) issued in respect of the accident Truck-tanker by the competent authority. Exhibit 10 would indicate that the accident truck/tanker was permitted to ply on the route where the unfortunate accident occurred(i.e., between Rangpo & Gangtok, East Sikkim). The route permit is seen to have been issued by the office of the Secretary, State Transport Authority, Motor Vehicle Division, Government of Sikkim and is seen to be valid from 01.01.2017 to 31.12.2017. The licence to transport petroleum products on land is seen to have been issued by the office of the Deputy Controller of Explosives, Ministry of Commerce & Industry(Petroleum & Explosives Safety Organisation(PESO)), Government of India. It is dated 30.11.2015 and it has been addressed to the complainant. It also gives the description of the accident truck/tanker and authorizes it to transport petroleum products upto 16.12.2018. The above copies are also seen to have been attested by the notaire. The OP could not controvert the above documents which have been duly identified and proved before us by the complainant. Needless to say, it has been duly proved by the complainant that the accident Truck-tanker was duly insured with the OP and had all its documents in order. Further, the unfortunate accident has also been clearly established. Point No.2) is accordingly decided in the affirmative.
26. Point No.3) shall be taken up now.

“3) Whether the driver of the accident truck above had a valid and effective driving licence issued by the competent authority at the time of the accident?(opc)”

27. With regard to the driving licence of the concerned driver/CW2, the complainant has filed the attested copies of the previous driving licence of CW2 which he was possessing at the time of accident as well as his subsequently renewed driving licence. Exhibit 2(in 02 pages) are the said copies. A perusal of the copy of the previous driving licence which CW2 held at the time of accident would show that it was purportedly issued on 22.12.2010 by the office of the District Transport Officer, Zunheboto, Nagaland. It authorizes the driver/CW2 Phurba Dawa Sherpa to drive medium goods vehicle(MGV) and heavy goods vehicle(HGV) as well as light motor vehicles(LMV). The licence is seen to be valid till 21.12.2017. The accident vehicle clearly falls within the description of the vehicle which the said licence holder is authorized to drive. It seems the driving licence was subsequently renewed upto 21.12.2020 which is clear from the copy of the subsequent driving licence of CW2.  It was contended on behalf of the OP that though the above(previous) driving licence of the CW2 which he was supposedly holding at the time of the accident has purportedly been issued by the office of the District Transport Officer, Zunheboto, Nagaland when the necessary verifications in that regard were made by its investigator Ashok Kumar Dutta(DW2) no records with regard to it(driving licence) were found in the concerned office. According to OP, the same is clear from the verification report/letter bearing No.DTO-Z/DL-V/2018-19/dated 18.04.2018 of the District Transport Officer, Zunheboto, Nagaland whose certified copy has been filed in the matter by it as Exhibit A. In this regard, it may be mentioned here that as rightly pointed out by the Counsel for the complainant the above verification report/letter dated 18.04.2018 does not specifically mention that the driving licence of CW2 is fake. Instead, it only mentions that no record of the concerned driving licence was found in the office and that it was unable to provide any information with regard to it or to verify its genuineness. Clearly, the verification report/letter is inconclusive. To make the matter worse, neither the District Transport Officer, Zunheboto nor any other official of the concerned office has been examined before this Commission by the OP in order to conclusively establish that the concerned driving licence of CW2 was a fake document.
28. In any event, it would not be incongruous to mention here that it is now well-settled that even in cases where the concerned driver is found to be in possession of a fake or invalid licence the insurer would not automatically stand to gain anything. Instead, it has to sufficiently establish that the owner of the vehicle was aware of the fact that the said licence was fake or invalid. We may refer to the cases of Ram Chandra Singh, Appellant v. Raja Ram & Ors. (2018) 8 SCC 799; and Pepsu Road Transport Corporation, Appellant v. National Insurance Company, Respondent (2013) 10 SCC 217 in this regard. As a matter of fact, even Lehru's case(supra) relied upon by the Counsel for the complainant has been referred to in the above cases by the Hon'ble Supreme Court. In yet another case Re: National Insurance Co. Ltd. v. Swaran Singh (2004) 3 SCC 297 the Hon'ble Apex Court would observe as follows:-(at paragraph 110 SCC, p.341)

    “110. (iii) … Mere absence, fake or invalid driving licence or      disqualification of the driver for driving at the relevant time, are           not in themselves defences available to the insurer against either          the insured or the third parties. To avoid its liability towards the          insured, the insurer has to prove that the insured was guilty of         negligence and failed to exercise reasonable care in the matter of             fulfilling the condition of the policy regarding use of vehicles by               a duly licensed driver or one who was not disqualified to drive at         the relevant time.”

29.  Coming back to the case on hand, the complainant has categorically averred in his complaint as well as in his evidence-on-affidavit that after finding CW2 suitable for being employed as the driver for the above Tata tanker and after conducting his road-test drive he had engaged the latter as the driver for the said Truck-tanker. Further, he had also perused the driving licence of CW2 and found the same to be genuine. The evidence/claims of the complainant to the said extent could not be controverted by the OP during his cross-examination. He has indubitably acted in the manner a reasonable person would have acted and could certainly not have known about the genuineness or otherwise of the driving licence of CW2, even if that had been the case which obviously is not the case here. It is worthwhile to mention here that the law does not enjoin upon the employer to verify the authenticity of the driving licence produced by the person seeking employment as a driver. If, on the face of it, the licence produced looks genuine, it would be sufficient discharge of duty of care by the owner to verify the qualification of the person proposed to be employed as a driver. We may refer to the case of National Insurance Company Ltd. v. Savita & Ors. MANU/DE/9716/2007: (2007) ILR 2 Delhi 951 in this regard. In that view of the matter, the stand of the OP and the repudiation of the claim of the complainant by the OP on the ground that the driving licence of CW2 was fake is not justified. In fact, we may also refer to the following observations of the Hon'ble Supreme Court in Pepsu's case(supra) which go on to suggest/indicate the extent of reasonable care expected to be taken by the owner of a vehicle before employing a driver:-(at paragraph 10 SCC)

        “10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh Case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation.”

30. Apart from the above cases, Nirmala Kothari's case supra which was rightly relied upon by the Counsel for the complainant is also relevant to the point under discussion here.
31. Suffice it to say, in view of the facts obtaining in the case on hand it has not been sufficiently established by the OP that the driving licence of CW2 is fake. In any event, even if the driving licence of CW2 were to be held to be invalid or fake the OP cannot avoid its liability to compensate the complainant. The Point No.3) is accordingly decided in the affirmative.
32. Point No.4).

“4) Whether there has been any deficiency in service on the part of the OP?(opc)”

33. The OP has not been able to put forward anything worthy which could even faintly suggest that any terms and conditions of the concerned insurance policy/certificate were violated in this case at and around the time of accident. It having issued the concerned insurance policy and having insured the owner (complainant) of the accident truck-tanker in that regard is liable to compensate the complainant if his claims are covered by the concerned insurance policy and if he is able to establish his case.
34. Now, according to the complainant, since his Tata tanker was damaged in the above accident he had to incur expenditure of ₹ 1,71,440/- for its repair. He has filed the copies of the concerned estimated bills(i.e., 13(in 02 pages)). He would, accordingly, claim the said amount from the OP. Further, according to him, the tanker was carrying consignment of diesel i.e., about 9kL of diesel, which spilled on the road when the tanker tumbled on the road. He would, accordingly, claim ₹ 4,00,000/- under RSMD cover relying on Exhibit 6(insurance document in that regard) from the OP. Further, he would claim damages/compensation under other heads as well.
35. With regard to the expenses incurred on the repair of the Tata tanker, it is rather strange that while at paragraph 18 of his complaint the complainant would claim that he had incurred the expenses of ₹ 1,71,440/- in the repair of the tanker, Exhibit 13 filed by him is however only seen to be an estimate/quotation rather than a bill. The complainant has, therefore, not clearly established that the concerned repairs had actually been carried out. That notwithstanding, the fact remains that the tanker had sustained damages and the above estimated expense indicated in Exhibit 13 was/is likely to be incurred for the necessary repairs. The estimated expense of ₹ 1,71,440/- is seen to be reasonable. The OP could not refute the said estimation or the factum regarding the damages sustained by the tanker although the necessary claim was lodged before it by the complainant as early as on 08.12.2017.  Since the insurance policy issued by the OP clearly covers the above as the same fall under the head Own Damage(OD) it was not justified in repudiating the same. It ought to have ensured the release or reimbursal of the said amount instead of failing to take any action in the matter. Thus, to that extent there has certainly been deficiency in service on its part. However, with regard to the claims against the diesel consignment being carried in the truck, no way bill, receipt or other document has been filed by the complainant to cogently establish that the truck was carrying 9kL of diesel consignment at the time of the accident. The only document filed by him is Exhibit 14 which is a certificate issued by the investigating officer of the concerned case registered before the Rangpo PS. However, Exhibit 14 does not mention the quantity of diesel that spilled as a result of the accident. Clearly, the complainant has failed to establish that the truck-tanker was carrying 9kL of diesel. Therefore, his claims against the same cannot be allowed. Obviously, the question of any deficiency in service on the part of the OP so far as compensating the complainant against the said diesel consignment would not arise here. The point No.4) is accordingly decided.
36. Points No.1) & 5)

“1) Whether the complaint is maintainable?(opc);

5) Whether the claimant is entitled to the reliefs prayed for by him?(opc)”

37. It was contended by the OP that the complainant would not fall within the definition of consumer under the Consumer Protection Act, 1986 as the concerned truck-tanker was being utilized by him for commercial purpose. In this regard, it may be mentioned here that the complainant has categorically averred in the complaint that the concerned truck-tanker had been purchased by him for his livelihood and for maintaining his family. He is self-employed. He has again reiterated it in his evidence-on-affidavit. There is nothing on record to show that the complainant had employed the concerned truck with the sole purpose to generate profits. It is well-settled that commercial purpose means that the concerned goods are related to an activity directly intended to generate profits, which is the main aim of commercial purpose.[3] This is not seen to be the case here.
38. The concerned accident took place within the jurisdiction of this Commission. As such the complaint has been rightly filed here. It is clearly maintainable. The complainant having proved his case to the above extent, it is hereby ordered that the OP shall pay an amount of ₹ 1,71,440/- to the complainant along with an interest at the rate of 9% per annum on the said amount w.e.f the date of accident i.e., 04.12.2017, until full and final payment. Further, considering the nature of the case and the undue hardship suffered by the complainant we also consider it seemly to order compensation of ₹ 20,000/- and further ₹ 15,000/- towards cost of litigation to be paid by the OP to the complainant. The awarded amounts above shall be paid within six weeks from today. Points No.1) & 5) are accordingly decided in the affirmative.

Complaint partly allowed to the above effect.

PRONOUNCED THROUGH VIDEO-CONFERENCING     

      (Anita Shilal)                (Rohit Kumar Pradhan) (Prajwal Khatiwada)            

           Member                               Member                                                            President

    DCDRC(E) at Gangtok       DCDRC(E) at Gangtok                 DCDRC(E) at Gangtok

         (through VC)                       (through VC)                                

LIST OF WITNESSES EXAMINED BY THE COMPLAINANT

01.        CW1     -  Subash Pradhan(Complainant)

02.        CW2     -  Phurba Dawa Sherpa

LIST OF DOCUMENTS EXHIBITED BY THE COMPLAINANT

01.        Exhibit 1    - Attested copy of certificate of registration

02.        Exhibit 2    - Copies of driving licences

03.        Exhibit 3    -      Original verification report/NOC

04.        Exhibit 4    -      Attested copy of insurance policy

05.        Exhibit 5    -  Attested copy of licence

06.        Exhibit 6    -  Attested copy of RSMD insurance cover

07.        Exhibit 7    -  Attested copy of vehicle token tax

08.        Exhibit 8    -      Attested copy of vehicle token tax

09.        Exhibit 9    -  Attested copy of certificate of fitness

10.        Exhibit 10 -       Attested copy of counter-signature permit

11.        Exhibit 11 -       Attested copy of FIR

12.        Exhibit 12 -       Intimation letter

13.        Exhibit 13 -       Attested copies of bills

14.        Exhibit 14 -       Certificate of investigating officer

15.        Exhibit 15 -       Original office copy of legal notice

16.        Exhibit 16 -       Original postal tracking record

17.        Exhibit 17 -   Evidence-on-affidavit of the complainant

18.        Exhibit 18 -       Evidence-on-affidavit of CW2

LIST OF WITNESSES EXAMINED BY THE OPPOSITE PARTY

01. DW1-           Niraj Kumar Singh

02. DW2-           Ashok Kumar Dutta

LIST OF DOCUMENTS EXHIBITED BY THE OPPOSITE PARTY

01. Exhibit A- Certified copy of verification report

02. Exhibit B- Evidence-on-affidavit of DW1

03. Exhibit C- Evidence-on-affidavit of DW2

   Anita Shilal)                (Rohit Kumar Pradhan)     (Prajwal Khatiwada)            

           Member                               Member                                                            President

    DCDRC(E) at Gangtok      DCDRC(E) at Gangtok                 DCDRC(E) at Gangtok

         (through VC)                       (through VC)                                 (through VC)