| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM CACHAR :: SILCHAR Con. Case No. 10 of 2015 Md. Hiramoni Choudhury, …………………………………… Complainant. -V/S- 1. The Branch Manager, National Insurance Co. Ltd, Silchar Branch P.O. Silchar Dist. Cachar, Assam. O.P No.1. 2. The Regional Officer, National Insurance Co. Ltd, Guwahati, Assam. O.P No.2. 3. Divisional Manager, National Insurance Co. Ltd, Silchar. O.P No.3. Present: - Sri Bishnu Debnath, President, District Consumer Forum, Cachar, Silchar. Mrs. Chandana Purkayastha, Member, District Consumer Forum, Cachar, Silchar. Shri Kamal Kumar Sarda, Member, District Consumer Forum, Cachar, Silchar. Appeared :- Sri Irabat Singha, Advocate for the complainant. Sri Debasish Som, Advocate for the O.Ps. Date of Evidence………………… 18-09-2015, 31-12-2015, 20-04-2017 Date of written argument……… 28-06-2016, 01-08-2017 Date of oral argument…………. 08-03-2017, 09-03-2017 Date of judgment………………. 14-08-2017 JUDGMENT AND ORDER Sri Bishnu Debnath, - This case has been brought by Md. Hiramoni Choudhury against the National Insurance Company Limited U/S 12 of the Consumer Protection Act 1986 for award of compensation of Rs. 3,85,000/- and other reliefs on the ground that his truck bearing Registration No. AS11-AC 1497 has been stolen away on 24-04-2012 at late night about 3-40 A.M from the road side at Sonabarighat, Silchar.
- To get the aforesaid relief he brought the following facts for better understanding. The Tata Truck bearing registration No. AS11-AC-1497 was insured with National Insurance Company, Silchar vide Insurance Policy No. 200501/31/11/3600003085 for the period from 16-09-2011 to mid-night of 15-09-2012. On 23-04-2012 at night the vehicle was kept on the road side at Sonabarighat. At about 3-40 A.M. i.e. on 24-04-2012 the driver left the vehicle for a while at that place and went for nearby on answer of the call of nature. After half an hour he returned to the spot but did not find the vehicle there. Accordingly, he informed the matter to the owner of the vehicle. The owner i.e. the Complainant on receiving the information rush to the place and on suspicion that the vehicle was stolen away he filed the FIR before the In-Charge Rangirkhari Police Out post on the following day. Accordingly, Silchar P.S. Case No. 757/2012 U/S 374IPC was registered. In the course of process the corresponding G.R Case No. 1350/2012 started. The Police investigated the case but could not trace out the stolen vehicle. Thus I.O. submitted F.R which was accepted by the CJM, Cachar.
- Finding no alternative the claimant submitted claim form to the Insurance Company but the Insurance Company repudiated the claim by sending a reply on 18-03-2014.
- On receiving the notice of this District Forum the Insurance Company submitted joined W/S of the Branch Manager and the Divisional Manager. The Regional Officer of the Insurance Company has not turn up. Nevertheless, the O.P No.1 and 3 in their W/S stated inter-alia that the claim is repudiated on the ground that policy condition No.5 has been violated by the complainant and also took plea that the fact of stealing of the vehicle was false and fabricated. The O.Ps in their W/S stated the following inter-alia other facts:-
“That, the insured did not take all reasonable step to safeguard the vehicle from loss on the night of alleged theft and thereby the petition violated the policy condition No.5 and same is compounded with mismatch of ignition keys. The insured with ulterior motive belatedly informed the insurer answering O.P No.1 regarding the alleged theft whereby insurer is prevented from taking all precautionary measure to investigate and intercept the alleged stolen vehicle”. - During hearing the Complainant deposed as P.W-1 and exhibited as many as 10(Ten) documents including copy of Azahar, FR, Insurance Policy etc. The driver of the vehicle Md. Azad Hussain Laskar also deposed as P.W -2. The O.P-Insurance Company examined Sri Tanwir Ikram Hazarika, the Administrative Officer, as D.W and exhibited insurance policy Azahar, FR, verification Report, Final Investigation Report, Letter of repudiation dated 18-08-2014 etc.
- At the ending of the evidence both the Ld. Advocate of the Complainant and the contesting O.Ps submitted their written argument with some case laws. We have heard oral argument and perused the evidence on record including written argument.
- In this case crux points are as follows:-
- Whether the vehicle was stolen away
- Whether the vehicle was used for commercial purpose or personal for livelihood by engaging the Complainant himself in the self-employment
- Whether the complainant is a consumer under Section 2(d)(1) of the Consumer Protection Act,1986.
- On bear reading of the Complaint it is revealed that the vehicle was kept on the road side by the driver but at late night i.e. at about 3:40 A.M. on 24-04-2012 it was stolen away by the unknown miscreants when the driver went away for half an hour for answering the call of nature. But if we go through the evidence of the Complainant, we find a different story. The Complainant deposed that the driver was sleeping inside the vehicle at the relevant date at night but miscreant by the stupefying the driver removed from the vehicle and kept on the veranda of a shop and then stolen the vehicle. However, the driver deposed to support the Complainant. He deposed that he was sleeping inside the stationary vehicle on the road side at Sonabarighat on the relevant date but at night 3:40 A.M. he woke up and found himself lying on the veranda of a shop and then he noticed that the vehicle was missing from the road side.
- In support of the said fact of stealing of the vehicle the Complainant exhibited Azahar vide Ext.1. But on careful reading of the Ext. 1 Azahar, we find a third story. As per Azahar the driver kept the vehicle on the road side at Sonabarighat on 24-04-2012 and went to his house to sleep. At late night he came out of his house to watch the vehicle and noticed that the vehicle was missing. Accordingly, at late night at about 3:40 A.M. the driver informed the Complainant by phone and then the Complainant rush to the spot and suspected that the vehicle has been stolen away.
- The aforesaid three facts are contradictory to each other. If the fact stated in the FIR is treated as true then the facts stated in the complaint and the deposition are untrue and unreliable. However, the Complainant deposed the fact which was supported by the driver. For which for the argument shake, if we take the fact that vehicle was stolen away on stupefying the driver then the police investigation must support the said fact but in the Police Report nothing revealed about the aforesaid fact except the fact that there is nothing established and no any little hope of recovery of the stolen vehicle. Of course, the O.P raise objection about the contradictory fact regarding dates and the driver i.e. P.W.2 clarified the same by deposing as below:-
“6. That, the matter is, the description how the vehicle was lost on 23-04-2012 at 3:40 A.M. or on 24-04-2012 was narrated to the petition writer/ Mohuri. But due to the absent mindness the Mohuri had written keeping the fact that the vehicle was stolen on 23-04-2012 at 3:40 A.M. only”. - Therefore, in the instant case when we are taking the procedure and spirit of summary trial it is not require to establish the fact beyond all reasonable doubt but principle of preponderance of probability is always to be adopted to come to a conclusion about the fact. Hence, in this case when the drive supported the fact stated by the Complainant on oath is taken into consideration and accordingly, concluded in view of the Police Report (FR) that the vehicle has been stolen away and the same is not yet recovered.
- So far as 2 (two) remaining points are concerned, we have taken together for discussion. As per Section 2(d)(1) of Consumer Protection Act if a vehicle purchased for commercial purpose is not a Consumer. Similarly, as per Section 2(d)(1) of Consumer Protection Act 1986 if a service avail for any commercial purpose, the person or the beneficiary of the service are not Consumer. But the said provision has been explained in view of the Amendment Act No. 62 of 2002 which is as below:-
“Explanation- For the purpose of this clause, “Commercial purpose” does not include use by a person of goods brought and used by him and service availed by him exclusively for the purpose of earning his livelihood by means of self-employment”. - In that aspect the Ld. Advocate of the O.P tried to convince this Court that the vehicle was purchased by the complainant for commercial purpose because the Complainant was not engage himself in the self-employment to that vehicle rather he was a business man and also the vehicle was insured as goods carrying commercial vehicle. The Ext. B Insurance Policy produced before the Court in support of the aforesaid plea. In the Insurance Policy, the profession of the insured Hiramani Choudhury is written as business and vehicle was graded as goods carting commercial vehicle (open) which means the Complainant is not self-employed as driver of the said vehicle, rather vehicle was used to carry goods for any public. So, apparently it is presumed that the vehicle was purchase for commercial purpose and insurance was done for commercial service only. The said opinion and observation are also boosted by the statement of the Complainant vide Ext.1. In that letter the complainant stated that he has owner of many trucks and the key of the trucks kept in a box but mistakenly handed over a wrong key to the Branch Manager of the National Insurance Company along with theft claim form. However, the Ld. Advocate of the Complainant refer some ruling to convince this District Forum that when a vehicle use for personal business he is to be treated as Consumer under Consumer Protection Act,1986. Accordingly, he cited judgment of state Commission vide Appeal No. F.A.12/670. But from the evidence on record, we do not find any iota of evidence that the vehicle was use for personal purpose at the relevant time of stealing and never carried goods of other person on receiving of fare. In that aspect the Supreme Court in Laxmi Engineering Works vs. PSG Industries AIR 1995 SC 1428 laid down the taste of close and direct nexus with the commercial activities. The Court held that the explanation appended to Sec 2(d)(1) reduce the question “what is commercial purpose” to a question of fact to be decided in the fact of each case. The Court further held that it is not the value of the goods that matters, but the purpose to which the goods brought are put to. The several words employed in the explanation viz “use by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of the parliament abundantly clear that the goods brought must be used by the buyer himself, by employing himself for earning his livelihood. The Court further held that the purpose for which a person has brought goods in a commercial purpose within the meaning of definition of expression consumer in 2(d) of the Act and is always a question of fact to be decided in the facts and circumstances of the case.
- In view of the above case laws we have meticulously gone through the evidence on record and found the fact that the Complainant has been engage himself for transport business by using his several trucks to carry commercial goods of other and not for himself. Hence, he is not to be treated as Consumer in view of the Section 2(d)(1) and (II) of Consumer Protection Act, 1986. Therefore, this District Forum has no jurisdiction to grant any relief to the complainant. Of course, he may approach before the competent court with suit of damages.
- With the above, the complaint is dismissed on contest without any cost. Supply free certified copy to the parties.
- Given under the hand of the President and Members of this District Forum and seal of the Office of the District Forum on this the 14th day of August, 2017.
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