BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

CACHAR :: SILCHAR

   Con. Case No. 21 of 2014

            Md. Rahim Uddin Barbhuiya, Secretary

            Samaj Kalyan Society of Nagatillah, Uttar Krishnapur,

            P.O- Silchar-6, P.S- Silchar, Cachar, Assam ………………….…………          Complainant.         

                                                                        -V/S-

        1. The United India Insurance Co. Ltd. Represented by its Div. Manager.

            Shymaprasad Road, P.O- Silchar-1, Cachar, Assam                                                 O.P No.1.

        2. Sri Angsuman Deb, Surveyor

            C/O- Div. Manager, United India Insurance Co. Ltd.

            Shyamprasad Road, Silchar-1, Cachar, Assam                                            O.P No.2.

Present: -                                Sri Bishnu Debnath,                                        President,

District Consumer Forum,

                                                Cachar, Silchar.                                            

                                                            Shri Kamal Kumar Sarda,                                 Member,

                                                            District Consumer Forum,

                                                            Cachar, Silchar.                                            

            Appeared :-                 Sri Rajat Ghosh, Advocate for the Complainants.

Sri Dipak Kumar Deb, Advocate for the O.Ps.

                           Date of Evidence………………………..      14-05-2015, 30-08-2017

                         Date of written argument………………          12-01-2018

                         Date of oral argument………………….       02-05-2017, 08-05-2018

                         Date of judgment……………………….          18-05-2018

                                                                      JUDGMENT AND ORDER

                            Sri Bishnu Debnath,

1. Md. Rahim Uddin Barbhuiya brought this complaint under the provision of Consumer Protection Act 1986 against the United India Insurance Co. Ltd. and its surveyor Sri Angsuman Deb for award of compensation for disservice sum assured of insured vehicle, cost etc.

    

2. Brief facts:-The complainant being Secretary of Samaj Kalyan Society Nagatila, Silchar purchased an Auto Riskhow bearing Regd. No. 11AC/7224 in the name of the Samaj Kalyan Society on hire purchase system with UBI Arunachal Branch and insured the same with O.P-Insurance Co. vide insurance policy No. 130500/31/01/00004602. Period of insurance coverage was from 16-12-2011 to 15-12-2012. Sum assured of the vehicle was Rs.1,08,880/-. But unfortunately the vehicle met accident on 12-03-2012 at 1-30 P.M in front of Sonabarighat Post Office. Resulting which the vehicle was totally damaged. The incident was informed to the O.P-insurer. Accordingly, proforma O.P Sri Angsuman Deb surveyed the incident and as per his direction the vehicle was lifted to workshop of Cachar Motor Works. But on 11-05-2012 the O.P-Insurance Co. repudiated the claim vide its letter dated 11-05-2012 on the plea that driving license of the driver of the vehicle was not valid to drive the vehicle with passenger.

3. The O.P-Insurance Co. submitted W/S. In the W/S challenged the jurisdiction of the District Forum on the ground of limitation. The O.P stated that the case is barred by limitation because the complainant lodged after expiry of limitation of 2 (two) years from the date of repudiation. The O.P-Insurance Co. also in its W/S challenged the jurisdiction on the ground that the complainant is not a consumer under the provision of consumer protection Act 1986. The O.P also stated that the complainant is not entitled compensation because the vehicle was driving by the driver without having effective driving license for passenger carrying vehicle.

    

4. During hearing the complainant submitted deposition supporting affidavit and exhibited as many as 12 (twelve) documents.

    

5. The contesting O.P-Insurance Co. submitted deposition of Sri Dilip Kumar Dey, the Assistant Manager and exhibited 4 (four) documentsincluding D L of the Driver and Surveyor’s report.

6. After closing evidence the complainant side submitted written argument but O.P side did not submit any written argument. The O.P No.2 i.e. surveyor Sri Angsuman Deb has remained absent and as such the case is proceeding exparte against the O.P No.2. Anyhow, I have heard argument of both sides’ counsels in present of other member of the District Forum and perused the evidence on record including exhibited documents and written argument of the Ld. Advocate of the complainant.

7. In this case after perusal of complaint W/S, evidence on record and hearing of both sides’ counsels it is of opinion that following points are required to decide to settle the dispute.

• Whether the complainant is consumer.

• Whether the complainant is barred by limitation U/S 24 (A) of the Consumer Protection Act 1986.

• What relief/ reliefs the complainant is entitled.

8.  In this case it is admitted fact in view of material available in the case record that the insured vehicle was used for commercial purpose. That is why, the contesting O.P took plea that as per provision of Section 2 (I) (d) (II) of the Consumer Protection Act the complainant or Samaj Kalyan Society is not consumer and as such the complainant is not entertainable in this District Forum. The Ld. Advocate of the O.P put forward the argument that the insured vehicle met accident which was carrying passengers and at the time of accident the driver did not possess valid driving license to drive a transport/commercial vehicle. To support his argument he brought my notice to the deposition of D W and Ext- B driving license of the driver of the insured vehicle. As per the Ext-B the driver Salim Uddin Laskar possessed a driving license to drive Motor Cycle, LMV, Auto Riskhow, Tractor, MGV, MP MV, HGV and HP MV but he was not licensed to drive any transport vehicle.

9. Anyhow, from the above argument and exhibited documents it is clear that the driver is compatible to drive an Auto Riskhow but he was not licensed to drive transport vehicle. The insured Auto Riskhow was a transport vehicle. That is why the Ld. Advocate of the O.P argued that the complainant allowed an un-authorized person to drive the insured vehicle at the relevant time to carry passenger and as such as per the terms and conditions of insurance policy the insurance Company is not liable to pay compensation.
10. But the Ld. Advocate of the complainant argued that the driver possessed a valid driving license vide Annexure-III. As per that document the driver Salim Uddin Laskar has been licensed to drive Auto Riskhow (transport). The said license is valid till 08-10-2015. The contesting O.P did not challenged the said driving license. Of course, the O.P exhibited a driving license in the name of Salim Uddin Laskar vide Ext-B. The said DL also supported the fact that the driver Salim Uddin is licensed to drive Auto Riskhow. That is why, in this case when the claim is not for any 3^rd party damage but own damage the strict principle for possessing DL for transport vehicle to shift the liability to the insurance company may not applicable.
11. The above condition for possessing valid driving license to drive transport/commercial vehicle is only applicable in case of 3^rd party claim only.
12. In this case from evidence on record it is clear that the driver of the insured vehicle was possessed a valid driving license vide Annexure-III. That is why, the claim cannot be repudiated only on the ground that the driver did not possess effective driving license to drive a transport vehicle.
13. But the Ld. Advocate of the O.P-Insurance Company argued that the complainant is not a Consumer because the insurance was done to transport vehicle for the commercial purpose. It is law that any service obtain for commercial purpose exclude from the definition of consumer U/S 2(I) (d) (II) of the Consumer Protection Act 1986. But the Ld. Advocate of the complainant argued that the complainant insured the vehicle to protect his property and as such the service which availed from the insurance company is not directly a commercial service rather a service to the complainant connected with the commercial service and as such the complainant is a consumer as per aforementioned definition.
14. In this aspect opinion of Hon’ble Supreme Court in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi (2000) ISCC98 is relevant.
15. The Supreme Court elaborately considered the provision of Section 2(1) (d) i.e. ‘Consumer’ and Section 2(I) (o) i.e. ‘Service’ and held that:-

“The combined reading of the definitions of ‘Consumer’ and ‘Service’ under the Act and looking at the aim and object for which the Act was enacted, it is imperative that the words ‘Consumer’  and ‘Service’ as defined under the Act should be construed to comprehend Consumer and Services of commercial and trade-Oriental nature only. Thus, any person who is found to have lived services for consideration shall be deemed to be a consumer, notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2 (I) (o) of the Act”.That is why, Chhattisgarh State Consumer Disputes Redressal Commission in complaint case No.30/2013 (Goodluck Petroleum Co. Pvt. Ltd. Vs. Feature General India Insurance Co. Ltd. And another) adopted the aforesaid ratio of the Supreme Court and held that services may be for any connected commercial activity, yet it would be within the purview of the Act.

16. That is why, Chhattisgarh State Consumer Disputes Redressal Commission in complaint case No.30/2013 (Goodluck Petroleum Co. Pvt. Ltd. Vs. Feature General India Insurance Co. Ltd. And another) adopted the aforesaid ratio of the Supreme Court and held that services may be for any connected commercial activity, yet it would be within the purview of the Act.

17. Accordingly, the aforesaid State Commission decided that dispute between the parties in the litigation is consumer dispute and complainant comes within the preview of consumer U/S 2 (I) (d) of the Consumer Protection Act.

18. In that case fact is that the complainant M/S Goodluck Petroleum Co. Pvt. Ltd. was running petroleum business. The complainant has taken on insurance for the factory to cover fire and Allied perils. The Future General India Insurance Co. Ltd. issued the policy and cover the risk against payment of consideration and issue insurance policy during the Insurance cover period due to heavy rain in and around the factory many water bodies around the factory ground level increased and entered into the Oil tank and damaged the petrol inside the tank. The Complainant submitted claim for loss to the Insurance Co. but the claim was repudiated on the ground that complainant is not a Consumer as per provision of Consumer Protection Act. 1986. But State Commission decided that with the ratio of the Supreme Court mentioned herein above that the dispute is Consumer dispute and Complainant is Consumer.
19. Thus, in the instant case after consulting evidence on record in entirety it is concluded that the insured vehicle was insured for commercial purpose to earn money but at the same time the insured vehicle is a property to the Complainant and in order to protect that property insurance policy was purchased. Thus, the service which avails from insurance Company is connecting service to a Commercial service of earning money by carrying passenger in the insured vehicle. Accordingly, the Complainant is a consumer and present dispute is a Consumer dispute as per provisions of Consumer Protection Act. 1986.
20. In this case the Complainant stated in the Complaint petition that his claim has been repudiated by the O.P./Insurance Co. on 06/08/2011 by a letter of repudiation but the complainant lodged on 20/05/2014 i.e after expiry of 2 (two) years. That is why, the contesting O.P./Insurance C. raised object vehemently that the case is barred by limitation as per provision of section 24 A (I) of the Consumer Protection Act. 1986.
21. I have gone through the case record to find out as whether any letter of repudiation date 06/08/2011 is available but nothing found. Anyhow, on careful perusal of record it is revealed that the alleged accident of the insured vehicle met accident on 12/03/2012, vide Ext.I intimation letter dated 14/03/2012 address to the Divisional Manager, United India Insurance Co. Ltd. The Complainant also on oath deposed that said vehicle met accident on 12/03/2012 and O.P./Insurance Co. repudiated the Claim on 11/05/2012 Annexure VIII is the copy of repudiation letter. Thus, sit is abundantly clear that the date of repudiation on 06/08/2011 is a type mistake because a claim cannot be placed before the O.P./Insurance Co. prior to meet accident of the insured vehicle. Moreover, the contesting O.P. though raised objection on the ground of limitation but did not show the copy of repudiation letter dated 06/08/2011.

22. Anyhow, the Complainant very equivocally stated in the Complaint petition that vehicle met accident on 12/03/2012 and claim has been repudiated on 11/05/2012. If that is the real fact the Complainant ought to be submitted before the Consumer Forum on or before 11/05/2014 as per provision of section 24 A (I) of the Consumer Protection Act.

     

23. In this case the Complainant did not avail the provision of Section 24 A (2) of the Consumer Protection Act. for the reason best known to him. I have perused the evidence on record but nothing found regarding delay condonation. Rather the Ld. Advocate of the Complainant argued that the complaint is not barred by limitation U/S 24 A (I) of the Consumer Protection Act.1986 because National Commission as well as Supreme Court in Canara Bank Vs Agens D. Mello 2006 (I) CPJS5: held that Section 24 A of the Consumer Protection Act.1986 regarding limitation of 2(Two) years period cannot be applicable, hence, case filed within three years not barred by limitation.

     

24. I have gone through that case law. The said case filed before the insertion of section 24 A of the Consumer Protection Act. i.e prior to the date of effect of the limitation or in other words the said case filed prior to 18/06/1993. That is why, the National Commissioner and Supreme Court held that period limitation U/S 24 A cannot be applicable in that case. It is clear from the bare provision of the Consumer Protection Act.1986 that prior to insertion of Section 24 A w.e.f 18/06/1993 there was no clause in the Consumer Protection Act.1986 for limitation. Thus, the period of limitation of 2 (two) years effected to the cases which instituted on or after 18/06/1993. The instant case instituted very recently on 20/05/2014. Thus, the provision of limitation of 2(two) years U/S 24 A of the Consumer Protection Act. 1986 is applicable. But the Complainant did not submit any delay condonation petition at the time of institution of the case and no formal delay condonation order obtain. Moreover, in the evidence nothing explained regarding delay of 9 (nine) days from 11/05/2012 for institution of the case. Nevertheless, I have given opportunity to the Ld. Advocate of the Complainant regarding issue of limitation but he argued and furnished case law referred above which are not supporting his plea of limitation. Of course the Ld. Advocate of the Complainant produced a case law of Supreme Court vide V.N. Shrikhande (Dr.) Vs Amita Sena Fernandes, (2011) ISC53 in support of his plea that a case cannot be barred by limitation if filed beyond the period of limitation of 2 (Two) years as per provision of Sec.24 A of the Consumer Protection Act.

25. I have gone through the said case Law, the Supreme Court held that a Complaint cannot be dismissed where Complaint is beyond limitation period and application for condonation of delay is also not filed U/S 24 A (2) unless an opportunity of hearing is given to the Complainant to show sufficient cause.

     

26. In the instant case sufficient opportunity is given in view of earlier discussion in the judgment. So, I do not find any cogent ground to allow further opportunity to show sufficient cause of delay of filing of the case beyond the period of limitation.

     

27. Therefore, in my considered view the Complainant is barred by limitation.

     

28. As the Complainant is barred by limitation, so, it is redundant to decide in merit the loss sustained by the Complainant of the insured vehicle and also it is redundant to decide as whether the O.P./Insurance Co. caused any disservice to the Complainant and inconsequence the insurance Co. is liable to compensate the Complainant.

     

29. With the above, I am declined to grant any relief to the Complainant. Thus, this case is dismissed on contest without any cost of the proceeding. Supply free certified copy of judgment to the parties of this Case. Given under hand and seal of this District Forum on this the 18^th day of May, 2018.