DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.321/2017
Ms. Sameeksha Mishra
W/o Gaurav Sharma
H.No. 702, Tower- 7, Takshila Heights,
Sector- 37C, Gurgaon, Haryana ….Complainant
Versus
IFFCO TOKIO General Insurance Co. Ltd.
IFFCO Sadan, C-1, District Centre, Saket,
New Delhi- 110017
Managing Director
IFFCO TOKIO General Insurance Co. Ltd.
IFFCO Sadan, C-1, District Centre, Saket,
New Delhi- 110017 ….Opposite Party
Date of Institution : 13.09.2017
Date of Order : 20.12.2021
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
1. The facts material to the case are that the Complainant, purchased a car by the make of Swift Desire from Rohan Motors Ltd. and took a policy bearing No. 97563238 from IFFCO Tokio General Insurance Company Ltd. and another (OP) for the period from 06.04.2016 to 05.04.2017.
2. The said vehicle was duly registered with the RTO office in Gurgaon with a permit to run/ply the same as a Taxi.
On 04.10.2016 the said car of the Complainant was booked by three persons from Civil Lines near ISBT, Delhi to village Bankner near Narela, Delhi during late evening. After reaching the destination, one of the passengers asked the driver to take them a little further and told him to stop the vehicle as he wanted to relieve himself. As the driver was turning off the ignition of the vehicle after stopping the car, he was reprimanded by the remaining passengers and asked not to turn of the ignition as it would have turned off the air conditioner as well. It is submitted that after stopping the vehicle the driver also got down to attend to natures call. To his shock the passenger, who had got down from the vehicle, immediately ran towards the car, took the driver seat and fled with the vehicle. The driver immediately got the FIR registered in Police station Rai. Thereafter, Complainant filed for the insurance claim with OP. OP repudiated the claim
vide letter dated 30.03.2017 stating that the claim of the Complainant was repudiated on account of negligence on the part of the Complainant.
3. Aggrieved, on unjust and misconceived ground for rejection of the claim, Complainant approached this Forum with the prayer to direct OP to release the Insurance claim of the said vehicle and pay Rs.8,50,000/- towards mental harassment, agony and cost of litigation.
4. Rejoinder and Evidence by way of affidavit is filed on behalf of the Complainant. Affidavit of Sh. A.K. Chaddha, Vice President
(Legal of OP) has been filed. Written arguments of parties are filed. Argument on behalf of parties are heard.
5. OP has filed its written version raising preliminary objection that the complaint of the Complainant is not maintainable being commercial in nature.
6. Before we go into merits of the case we would decide the preliminary objection of the OP-1. Admittedly, the Complainant had obtained a Four Wheeler Commercial (Passenger carrying) Policy for her Maruti Swift Desire Car bearing No. HR 55X 7700. Complainant in its replication has submitted that the Complainant in order to support her livelihood, had attached her said vehicle with OLA, which is a transportation network company and enables booking of taxies through mobile run application. Complainant in support of her case has relied upon 1995 AIR 1428, 1995 SCC(3583) Laxmi Engineering Works V/s PSG Industrial Institute, where in “Commercial Purpose” as defined in section- 2(d)(1) of Consumer Protection Act, 1986 is discussed in detail. For ready reference relevant portions of the said judgment are produced as under:
6.1. A person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for plying the car as a Taxi can be said to be using the typewriter/car for a commercial purpose……………………………………….The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood.
A few more illus-trations would serve to emphasis what we say.
A person who purchase an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer).
As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer.
7. We are not convinced as to how the said case/judgment is of any assistance to the Complainant as admittedly, the car was used as a cab/taxi having a Tourist Taxi permit. Policy taken from OP is also for a commercial vehicle (Passenger carrying). The said vehicle was used for Sapient Company and OLA, it was also carrying passengers after finishing duties from OLA. The said facts are admitted by the Complainant, which is annexed at page-20 with the written statement of OP.
8. Though the Complainant has pleaded that the said car was used for the purposes of her livelihood but the Insurance policy annexed at page-6 and page-13 of the written statement of OP confirms that the Complainant was employed as a school teacher. The said fact leads us to the conclusion that as the Complainant was employed as a ‘Salaried’ person, the commercial use of vehicle in question was to supplement her income and not for livelihood. Further the Complainant being a married woman has not pleaded that she is the sole earning member in the family. It is pertinent to mention that during the course of arguments counsel of the Complainant informed the Commission that at the time of filing of the complaint the Complainant had admitted to have been plying one or more vehicles as OLA cabs/taxies. We can very safely draw the inference that the vehicle of the Complainant, which was registered as a commercial vehicle was being used to earn profits.
9. As per the law laid down in Laxmi Engineering (Supra)
‘The National Commission has been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a ‘Consumer’ within the meaning of section 2(d)(i) of the Act’.
10. In light of the discussion above this Commission is of the view that the vehicle was not purchased for self-employment to earn livelihood. Hence, the complaint is dismissed as not maintainable.
File be consigned to the record room after giving a copy of the order to the parties as per rules.
