The complainant Anant Sahani has filed this complaint petition against Divisional Manager, the oriental insurance company Ltd., and one another (o.ps) for realization of Rs. 6,50,000/- insured amount of truck No.- BR06-G3655 with interest and compensation.
The case of the complainant as mentioned in complaint petition, in brief, is that on 17-02-2011 complainant took Bima Policy Bearing No.- 332100 (31) 2011-912562 for his truck No.- BR06G-3655 from o.ps Divisional office situated at Muzaffarpur which was effective since 18-02-2011 to 17-02-2012. The complainant deposited the premium amount and obtained its receipt and policy bond. The further case is that during course of transportation on 10-02-2012 at about 7.30 AM the complainant parked his truck near petrol pump (Baliya) P.S- Kudhani, District-Muzaffarpur and went out to court after informing Virendra Singh, a local person for care. The further case is that during course of court proceedings he was sent to jail in the judicial custody from where he informed to his son to care of the truck. The further case is that on 11-02-2012, son of complainant Kumar Sandeep reached near his truck and found that the same was missed. On query from the local person he couldn’t able to search the truck so he informed in the local Kudhani P.S. for missing of the truck. The office Incharge of the P.S. asked him that after search and returning of his father, the case will be registered. The further case is that on 15-02-2012, complainant went at Kudhani P.S., after being released from custody and requested to lodge the case but he was threatened and ultimately it was asked to him to lodge the case in the court. On 17-02-2012 complainant lodged a case in the court of SDJM (West) Muzaffarpur which was sent to Kudhni P.S. to register and investigate the case. On the basis of the same Kudhni P.S. Case No.-59/2012 was registered and after investigation I.O. found the case true but not clue and submitted final form in the court. The court accepted final form and dropped the proceeding. The further case is that complainant filed papers in the office of the o.p no.1 for payment against policy of the truck but o.ps. didn’t pay the same after many request of the complainant, so he suffered with economical, mental, and physical, harassment.
The complainant has filed the following documents in support of his version Annexure -1- computerized copy of insurance certificate of vehicle No.- BR06G-3655, annexure-2- photocopy of permit annexure-3-, photocopy of certificate of fitness of the above vehicle annexure-4- photocopy of D.L. of the complainant , annexure-5- photocopy of R.C., annexure-6-photcopy of order sheet dated 29-08-2012 of S.D.J.M, annexure-7-, photocopy of FIR of Kudhni P.S.Case No.- 59/12, annexure-8- photocopy of final form of Kudhni P.S. Case No.-59/12 , annexure-9- photocopy of legal notice annexure-10, photocopy of registered letter dated 30-07-2013, by Deepak Kumar Shrivastra to Deepak Kumar and Annant Sahani.
O.P No.1 & 2 appeared on 06-11-2013 and filed his w.s. on 12-06-2015 with prayer to dismiss the complaint petition with cost. It has been mentioned in the w.s. that complaint petition is not maintainable in the eye of law and suffers with miss -joinder and non-joinder of necessary party. It has been further mentioned that as per terms and condition of policy, the complainant was to report for the theft of the vehicle to the company within 48 hours but he has not reported within time so the petition is barred by limitation . It has been further mentioned that on perusal of FIR and charge sheet it transpires that the alleged truck was unattendant on the road side for two days which is violation of policy condition .Insurance of truck Bearing No.- BR06G-3655 from the oriental insurance company Ltd. , for the period from 18-02-2011 to 17-02-2012 is an admitted fact subject to the terms, conditions, exception and limitation of the policy agreement. As per violation No.-5 “The insured shall take all reasonable step to safeguard the vehicle from loss or damage. It has been further mentioned that after completion of investigation, the police also found negligence of the complainant and submitted final form so there is no deficiency in service on part of the o.ps . It has been further mentioned that the date of theft is 10-12-2010 but this case has been filed on 27-09-2013 after lapse of more than 2 years from the cause of action so this case is badly barred of by law limitation. It has been further mentioned that the petitioner purchased the truck for commercial purpose, hence he doesn’t come in the category of consumer and the complaint petition of the complainant is liable to be dismissed on the above ground.
On behalf of complainant deposition of PW1 Annant Sahani (complainant himself), PW-2 Kumar Sandeep, PW-3, Veerandra Singh on affidavit has been filed.
The learned lawyer for the o.ps argued that the vehicle in question was purchased for commercial purposes, so the complainant doesn’t come under the category of consumer as defined in section 2 (1) d of the Consumer Protection Act he also argued that the vehicle was left in the side of the road unattended, so the same is violation of the policy.
He relied upon the following decisions of the Hon’ble Commission.
1. Keshvab Natu Mahate Vs. New India Insurance company Ltd. And another ( 2012) CJ 67 (NC)
2. Srei Equipment finance Pvt. Ltd. Vs. Ebrahim Khan appeal no.-FA/131577 dated 28-04-2014 of Hon’ble State Consumer Disputes Redressal Commission Pendre Raipur, ( Chhattisgarh) and 3. Branch Manager, Oriental Insurance Company Saharsa and another V/s. Avinash Kr. Singh Appeal No.- 149/2007 dated 21-08-2009 passed by Hon’ble State Consumer Dispute Redressal Commission., Bihar Patna.
The learned lawyer for the complainant submits that the ruling filed on behalf of o.ps is not applicable in this case.
Firstly, we would like to dismiss as to whether the vhicle in question was left unattendant and as such for that reason the o.ps are not liable for compensation. The Insurance of the truck bearing No.- BR06G-3655 from the o.ps company is an admitted fact and the period of insurance since 18-02-2011 to 17-02-2012 is also admitted. The complainant has mentioned in his complaint petition that during course of transportation, on 10-02-2012 at about 7:30 AM., He parked his truck near petrol pump (Baliya) P.S- Kudhni ,District-Muzaffarpur and went out to court after informing Virendra Singh a local person for its care and protection. The further case of the complainant is that during course of court proceeding he was sent to jail in the judicial custody from where he informed to his son to care of the truck. The further case is that on 11-02-2012, son of complainant Kr. Sandeep reached near his truck and found that same was missed. The further case is that on query from the local persons he couldn’t able to search the truck so he informed local police for missing of the truck. The further case is that the officer incharge of the P.S. asked him that after search and returning of his father the case will be registered. The further case is that on 15-02-2012 complainant went at Kudhani P.S., after being released from custody and requested to lodged the case but he was threatened and ultimately it was asked to him to lodge the case in the court so complainant lodged the case in the court of S.D.J.M. (West) Muzaffarpur which was sent to Kudhani P.S to register and investigate the case. The further case is that on the basis of the same Kudhni P.S. Case No. 59/12 was registered and after investigation I.O, found the case true but not clue and submitted final form in the court which was accepted by the court. The above fact has been supported by P.W.1 Annant Sahani, PW-2 Kumar Sandeep and PW-3 and Virendra Singh in their deposition filed on affidavit. The complainant has also filed photocopy of Kudhani, P.S. Case No.-59/12 as annexure-7, photocopy of final form no.88/12 (annexure-8) and photocopy of ordersheet dated 29-08-2012 (annexure-6) in support his version. On perusal of annexure-8 it transpires that I.O. found the case true but not clue and on perusal of annexure-6 it transpires that the final form has been accepted by the court of S.D.J.M vide order dated 29-08-2012. No evidence has been adduced/filed on behalf of o.ps to counter the evidence filed on behalf of complainant so conclusion can be easily drawn that the truck in question was not left unattendant. So, the rulling of Keshevnatu Mahatre Vs. New India Insurance Company Ltd. Is not applicable in this case.
The another question which has been raised by the learned lawyer for the o.ps that the complainant doesn’t come under he category of consumer as defined in the section 2 (1) (d)of the Consumer Protection Act. He has further argued his case does come under the category of explanation of section 2 (1) d of Consumer Protection Act. He has further argued that no evidence has also been advanced on behalf of complainant on the above point, so the complainant doesn’t come under the category of consumer.
Firstly, I would like to mention section 2 (1) d of consumer Protection Act 1986 for easy reference:-
(d) “Consumer” means any person who-
(i) 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
(ii) {hires or avails 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 partly paid and partly promised, or under any system of deferred payment, 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 purposes of earning his livelihood by means of self – employment.
On perusal of annexure-1 ( filed by complainant) it transpires that the policy was taken by the truck as public carrier and the same was under hypothecation with Sri Ram Transport Finance Company Ltd. Turner Morison building first floor 6 layers Range Kolkata (West Bengal). The complainant has neither pleaded in his complaint petition nor adduced any evidence of the effect that the service of the aforesaid truck was availed by him exclusively for the purposes of earning his livelihood by means of self employment.
In the case of Srie Equipment Finance Pvt. Ltd. Vs.Ibrahim Khan, appeal No. FA/13/577, Hon’ble State Consumer Dispute Redressal Commission Pandre, Raipur (Chhattisgarh ) has been pleased to elaborate the meaning of commercial purpose as mentioned in explanation of section 2 (d) of the Consumer Protection Act 1986. In para- 17 of the above order Hon’ble Commission has held as follows.
Para-17- “ In the instant case the respondent (complainant ) has simply pleaded that he that had purchased the crane on 09-04-2012 from the appellant (o.p), but he did not plead that he purchased the vehicle for earning his livelihood by means of self employment. It is essential for the respondent (complainant) to plead that the goods or vehicle has been purchased for him for personal use or earning his livelihood by means of self employment, but in the instant case, the respondent (complainant) has not pleaded the above facts.”
In Para -20 - of the above order Hon’ble Commission has also observed as follows-
Para- 20-“ looking to the Clause (b) & (c) of the relief column of the complaint, it appears that the vehicle in question (crane), is still in possession of the respondent (complainant) and the respondent (Complainant) had not specifically pleaded that the vehicle (crane) was purchased by him for his personal use or for earning his livelihood by means of self employment. The above pleading is essential and the respondent (complainant) did not plead that the vehicle (crane) was purchased by him for his personal use or for earning his livelihood by self employment. Therefore, for want of above pleading, it may be presumed that the said vehicle (crane) was purchased by the respondent (complainant) for the commercial purpose.”
The fact of this case also corresponds to the fact of the case of Srei Equipment Finance Pvt. Ltd. Case and in this case the complainant has also neither mentioned in his complaint petition nor adduced any evidence that he had purchased the aforesaid truck for earning his livelihood by way of self employment. So, it may be presumed that the said vehicle was purchased by the complainant for the commercial purposes.
Except that it has been mentioned in insurance certificate (Annexure-1) that “claim for theft of vehicle not payable if theft not reported to the company within 48 hours of its occurrence. The occurrence is said to have been committed on10-02-2012 and the complainant returned from jail custody on 15-02-2012. Thereafter, he filed the case on 17-02-2012. He has mentioned in his complaint petition that I.O submitted final form which was accepted by the court on 29-08-2012 and thereafter he approached to the insurance company for payment of sum assured. On perusal of annexure-6 it transpires that the final form has been accepted by the court on 29-08-2012 thereafter the complainant approached the insurance company. So, it transpires that the complainant approached the insurance company regarding theft after 6 month of the occurrence which is also against the terms of the agreement cum insurance certificate.
On the basis of above discussion, it transpires that the complainant does not come under the purview of consumer as prescribed under section 2 (1) d of the Consumer Protection Act- 1986, so there is no question of deficiency in service by o.p and as such the complaint petition is liable to be dismissed.
Accordingly the complaint petition of the complainant is dismissed without cost. Let a copy of this order be furnished to both the parties as per rule.
