Date of filing: 12.03.2018
Judgment date: 17.01.2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by New City Carrier Pvt. Ltd. under section 12 of the Consumer Protection Act, 1986 against opposite party (referred as O.P. hereinafter) namely Future Generali India Insurance Co. Ltd. alleging deficiency in service on the part of the O.P.
Case of the complainant in short is that the O.P. is a company which provides General Insurance on payment of premium. Complainant is a company engaged in the business of transportation of goods for consideration. Complainant obtained Insurance Policy from the O.P. in respect of the vehicle No. WB-11D-4921 and it was valid from 21/02/2027 to till 20/07/2018. During the continuance of the validity of insurance policy of the vehicle, it met with an accident on 15/02/2017 under the territorial jurisdiction of Jodbhavi Peth Police Station, Solapur, Maharashtra. The vehicle was badly damaged and after the accident, said Jodbhavi Peth Police Station registered the case against the driver namely Arun Boruah, who was driving the vehicle at the time of the accident. The vehicle was subsequently repaired at Sagar Motors, Maharashtra who raised bill of Rs. 11,47,833/-. So complainant claimed the aforesaid amount from the O.P. but despite submission of all the relevant documents, O.P. repudiated the claim of the complainant illegally on the ground that at the time of accident Arun Boruah was not driving but one Sahid was the driver. So the present complaint has been filed praying for directing the O.P. to refund the total claim amount of Rs. 11,47,833/- along with interest, to pay compensation of Rs. 2,00,000/- and to pay the cost of litigation.
O.P. is contesting the case by filing the written version contending specifically that on perusal of the documents submitted by the complainant including the claim form it has been observed by the O.P. that the name of the driver in the consignment details of Blue Dart Company is mentioned as Sahid. But on the contrary representative of the complainant mentioned the name of the driver as Arun Boruah in the claim form. So on 31/10/2017 through an e-mail O.P. requested the complainant company to provide certain documents but in reply dated 23/11/2017 complainant intimated that it was unable to produce the details of the occupants of the vehicle at the time of accident including of the driver and the driving license of all the occupants. So since the actual facts and the facts narrated by the complainant hugely deferred there was breach of condition of the insurance policy. So the O.P. has prayed for dismissal of the complaint filed by the complainant.
During the course of trial of the case both parties filed respective affidavit in chief followed by filing of questionnaire and reply thereto. Ultimately argument has been advanced. Brief notes of argument are also filed by both the parties.
So the following points require determination:-
- Whether the complainant is a consumer under the provision of the Consumer Protection Act.?
- Whether there has been deficiency in service on the part of the O.P.?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
Point No. 1:- At the very outset it may be pertinent to point out that the complainant is a Pvt. Ltd. Company and is represented by the Manager of the Company being authorized by a resolution dated 24/01/2018 passed in a Board of Directors meeting. So it is apparent that the complainant company carries the business for the commercial purpose. The truck in question was used for the purpose of carrying the goods by the complainant company for the said business purpose and thus there cannot be any denial and dispute that the transaction in this case relates to commercial transaction. Insurance was taken of the truck used for the said commercial purpose. But no where in the four corners of the complaint, complainant has stated that the said business of the complaint company is carried for the purpose of earning livelihood by way of self-employment. Even during the evidence it is no where stated by the complainant that the business is carried and the insured truck is used to carry the goods for the purpose of earning livelihood by way of self-employment. In such a situation in view of section 2(1)(d) of the Consumer Protection Act, 1986 complainant company cannot be a consumer. Section 2 (1)(d) of Act of 1986 provides that consumer does not include a person who obtains goods or hires services for any commercial purpose. The explanation attached with the said provision excludes from the ambit of “Commercial Purpose” if it is for earning livelihood. But there is no evidence before this commission to bring the case within the ambit of said explanation. On the contrary on consideration of the documents filed in this case including board resolution it is evident that the business is run by the complainant company in a large scale to earn profit. So in these view of the matter complainant company is not a consumer and thus the present complaint is not maintainable under the provision of the Consumer Protection Act.
It will not be out of place to mention here that maintainability of the complaint was challenged earlier only on the ground of lack of territorial jurisdiction and by the order dated 26/08/2018 the same was disposed of holding only that this commission has territorial jurisdiction.
So this point is answered accordingly.
Point No. 2 & 3: In view of the discussion in point no. 1 as the present complaint is not maintainable, point Nos. 2 & 3 becomes redundant.
Hence,
ORDERED
CC/123/2018 is dismissed on contest.
