The instant case was started on the basis of the petition filed by the complainant Bithika Pramanik u/s. 12 of the Consumer Protection Act, 1986 which was registered before this Forum as CC. No. 79/2015.
The fact of the case as revealed from the petition of complaint as well as evidence is that the complainant Bithika Pramanik is a businessman. She is an aged woman who runs a C.S shop at Village & P.O. Mohodipur near BSF Camp. The name of the shop is styled as M/S Mohodipur C.S Shop and the complainant happens to be a proprietor and lawful owner of the said shop belonging to all papers to run the said shop lawfully.
It is further revealed that the shop was duly insured by the complainant to the office of O.P. No.1 who runs the business of insurance all over the country having a Branch Office at Malda. The complainant regularly paid the paid the necessary premium of the policy bearing No. 150700/11/13/310000176. This policy was issued by the O.P. No.2 on 29/11/2013 valid up to 28/11/2014.
On 30.08.2014 at about 09-00 A.M. when the shop was opened it was found that some goods as mentioned in the schedule of the petition of the complaint was stolen by some unknown criminals for which the complainant lost a sum of Rs. 132010.60. Accordingly, a written complaint was lodged on 30/08/2019 to the E.B.P.S. Accordingly, the said Police Station started a case bearing Case No. 804/14 dt. 30.08.2014 corresponding to G.R. Case No. 3312/2014 u/s. 379 IPC and the case was started against unknown person. The I.O. after careful investigation submitted a final report on 31/10/2014 and the said report was accepted by the concerned Court on 26.06.2015 as no objection was submitted by the complainant.
It has been further stated that the complainant being a lawful insured of the said shop claimed before the O.P. of Rs. 132010.60(Rupees One Lakh Thirty Two Thousand Ten and Sixty Paise Only). for the loss sustained by him but the said claim of the complainant was repudiated by the O.P. No.1 on the ground that the complainant is not entitled to get any coverage under the policy as the final report was submitted against the allegation u/s. 379. Finding no other alternative the complainant has filed this case before this Forum claiming Rs. 142010.60 (Rupees One Lakh Forty Two Thousand Ten and Sixty Paise Only) for the loss sustained by her and also for mental pain, agony and litigation cost.
The petition has been contested by the National Insurance Company by filing the written version denying all the material allegations as leveled against Insurance Company contending inter alia that the instant case is not maintainable in the present form and law. The definite defense case is that unless and until change of the name of insured in the event of death of the insured is done no relief can be given.
The further defence case is that the insurance coverage does not come under the Provision of Sec.461 IPC.
Considering the facts and circumstances the instant case is liable to be dismissed with cost.
In order to prove the case the complainant herself has examined as P.W.-1 and she was cross-examined. She has proved and marked the documents as Ext.-1 to Ext.-6 as per exhibit list. No other witness was examined on behalf of the complainant
On the other hand the O.P. did not adduce any evidence to their defense.
Now the point for determination.
- Whether the complainant is entitled to get any relief as prayed for?
::DECISION WITH REASONS::
On perusal of petition of complaint as well as the evidence it is found that the complainant Bithika Pramanik runs a business. Now the main point is to be considered whether the complainant will be treated as a ‘Consumer’ under the Provision of Consumer Protection Act, 1986 as per definition of Sec. 2(d).
According to the definition of ‘Consumer’ if a person shall not be included as a ‘Consumer’ when he obtains the goods for resale or for any commercial purpose. In the explanation, the term ‘Commercial Purpose’ does not include, used by a person or goods bought and used by him/her and Services availed by him or her exclusively for the purposes of opening his/her livelihood by means of self-employment. In the petition of complaint and in the evidence nowhere it is found that the complainant carries her business for the purpose of earning her livelihood. So definitely the ‘Complainant’ as per definition of Consumer Protection Act, 1986 is not a ‘Consumer’ within the meaning of Consumer Protection Act, 1986.
Next point is to be considered loss of goods by the complainant. No stock register has been filed by the complainant to show that on the date of incident there was numbers of articles which were stolen or taken away. How the Forum will come to a conclusion that on the date of incident the articles which were lost by her were in the shop. Declaration of the complainant is not sufficient to prove such fact. The complainant did not file any challan or memo that she purchased the lost articles from any authority. So on consideration such facts and circumstances the complainant has not been able to prove the case that on the date of incident there was article goods which were stolen.
The Ld.Lawyer of the O.P. submits that P.W.-1 in cross-examination has admitted that her husband Protul Pramanik has expired three years back. The date of cross-examination is 08/09/2017. So three years back come to 07/09/2014. The Ld.Lawyer of the O.P. wants to impress upon the Forum that the policy was renewed in the name of dead person. But on perusal of proposal form it is dated 29/11/2013 and it was signed by the husband of the complainant. So at the time of the proposal Protul Pramanik was present and that proposal of the policy was 29/11/2012 to 29/11/2013 and the present policy in question is from 29/11/2013 to 28/11/2014 as from the cross-examination of the P.W.-1 it is found that the husband of the complainant died three years back from the date of cross-examination and the date of cross-examination was done on 08/09/2017 and three years back case to 03/09/2014. So during the continuance of the policy in question her husband was alive. On perusal of the license issued by the department of Excise issued by Govt. of West Bengal name of the licensee was Bithika Pramanik and name and style of the shop of Mohodipur CS shop. In the policy it is found that insured name M/s. Mohodipur CS shop, name of the proprietor Protul Kumar Pramanik. In the proposal we also found that name of the proposer is M/s. Mohodipur C.S. Shop, Proprietor, Protul Kumar Pramanik. So in the opinion of this Forum the husband may be the proposer though the license was stood in the name of Bithika Pramanik. So the argument raised by the Ld.Lawyer of the Insurance Company that the policy was renewed in the name of death person is not acceptable. Another point as canvassed in the W/V that the claim was repudiated as the claim does not come u/s. 461 IPC. But such repudiation is not acceptable as because Police booked the case u/s. 379 only not u/s. 461 IPC. It is not the duty of the informant to mention the section under which section the case is will be started. So the ground of repudiation is not at all acceptable. On perusal of the record it is found that the complainant is not a ‘Consumer’ under the Provision of Consumer Protection Act, 1986 and no document as regard to loss of articles has been produced as such the complainant is not entitled to get any relief as prayed for.
C.F. paid is correct.
Hence, ordered that
the case be and the same is dismissed on contest without any cost.
Let a copy of the judgment be given to the parties free of cost on proper application.
