IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Sri P.Das
Member
District Consumer Disputes
Redressal Forum, Sonitpur
Smti S.Bora
Member
District Consumer Disputes
Redressal Forum,Sonitpur
CONSUMER COMPLAINT NO.06/2017
Sri Samar Saha : Complainants
S/o Late Shanti Saha
Resident of cill: 1 No. Namonigaon
P.O: Rangapara, P.S: Rangapara
Dist: Sonitpur, Assam
Vs.
1.The Divisional Manager : Opp. party
New India Assurance Co.Ltd.
Divisional Office, Tezpur,Dist: Sonitpur
2. The Divisional Manager
Divisional Officer-II, Guwahati, Bhangagarh
Near Nemcare Hospital,
Guwahati-781005.
Appearance:
Sri Pranjal Baruah, Advocate. : For the Complainant
Sri Pramod Ch. Sarmah, Advocate : For the Opp. party
Date of argument : 10-10-2017 & 23-10-2017
Date of Judgment : 27-10-2017
JUDGMENT
- The facts as disclosed under the complaint, in brief, are that complainant’s commercial vehicle No.12-E-1799 (a Mahindra & Mahindra Pick up van) was stolen from his premises on the night of 18-02-2015 and on learning about the theft on the following morning FIR was lodged before Police with written intimation to the opposite party insurance company and the District Transport Officer, Sonitpur. Further, e-mail was also sent to one Rupak Bhattacharjee, DM of New India Assurance Co.Ltd, Guwahati-II through insurance agent named Prabhas Das. Upon submission of theft claim on the strength of the insurance policy of the opposite party that covered the period w.e.f.21-01-2015 to 20-01-2016, the opposite party however, repudiated the claim citing inordinate delay in intimating about theft. Pleader’s notice was served upon the opp. parties on 21-10-16 but to no avail. Alleging financial hardship due to loss suffered on the theft of the vehicle as the means of his livelihood and deficient service on the part of the opposite party in repudiating his genuine claim, the complainant is thus, before the Forum claiming a total relief of Rs.7,70,000/- under different heads inclusive of the IDV of the vehicle as mentioned under the complaint.
- Opposite parties through its joint written version contested the case contending inter alia over the status of the Complainant as “Consumer’ vis-a vis the definition under the Act. Denying any deficiency on its part, the opposite party claimed the repudiation to have been made on just ground of non-furnishing the information of theft within the specified period as per terms of the Insurance policy and had thus, prayed for dismissal of the complaint.
- Complainant tendered his evidence in chief on affidavit making several exhibits thereunder . Opposite party declined to adduce evidence of any witness and preferred to remain content by cross-examining the Complainant.
We have carefully gone through the entire materials available on record. Also gone through the written argument submitted by the learned counsels for the parties.
POINTS FOR DETERMINATION
i)Whether the Complainant is a consumer under Section 2(1)(d) of the Consumer Protection Act ?
ii)Whether there was deficiency in service ?
iii)Whether the Complainant is entitled to get relief/reliefs as prayed for?
DISCUSSION ON THE POINTS WITH DECISION
5.Point No.(i):- The opposite party through its written version at para 2 pleaded that the Complainant is not a consumer as per definition under the Consumer Protection Act.
Section2(1)(d) of the Consumer Protection Act defines “Consumer” as under-
“Consumer” means a 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 to Section 2(1)(d) provides that –
“For the purpose 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”.
6. Admittedly and evidently, the vehicle in question was used by the Complainant as a Commercial one. Complainant nowhere, either in the complaint or in his evidence stated that the vehicle was used by him for self employment to earn his livelihood. On the otherhand, opposite party also failed to bring any material to suggest that the Complainant does not fall within the Explanation to Section 2(1)(d) of the Act. Therefore, Complainant was examined by the Forum. His answers to the questions put by the Forum clearly demonstrate that at the relevant time, Complainant had no other means to earn his livelihood. In view of such answers, in absence of any other material brought on record, we have no other option but to hold that the vehicle was used by the Complainant exclusively for the purpose of earning his livelihood by means of self employment.
7. The judgment passed by the National Consumer Disputes Redressal Commission in Govinda Ram Agarwal Vs. Kolkata West International City Pvt.Ltd. & Ors, (2016)(2)CPR 186(NC) which is relied on by the opposite party is found to be not at all applicable to the case in hand.
For the reasons stated above, Point No.(i) is decided in the affirmative.
8.Point No.(ii):Opposite party has turned down the claim for compensation under the Policy only on the ground of inordinate delay in informing the Insurance Company regarding theft of the vehicle. Ext-6 is the letter of repudiation made by the opposite party.
9. As alleged by the opposite party the vehicle was stolen away on the night of 18-02-2015 but information of theft was given to the opposite party after a lapse of more than one year.
10. Complainant categorically stated in the complaint and in his evidence on affidavit that having come to know about theft on the following day morning on 19-02-2015 an FIR was lodged with Rangapara Police Station and intimation was given to the Insurance Company. Information was also given to the District Transport Officer,Sonitpur at Tezpur. He further stated that e-mail was also sent
to Sri Rupak Bhattacharya D.M of the opposite party informing him about the theft of the vehicle through the e-mail i/d of the agent Prabhas Das through whom, the vehicle was insured. The Police after completion of the investigation of the case registered as Rangapara P.S Case No.16/2015 submitted final report. During cross-examination, Complainant confirmed his claim. In support of his claim, Complainant has exhibited following documents:
Ext-4- Certified copy of printed FIR dtd. 19-02-2015
Ext-4(i)- Certified copy of written ejahar dtd 19-02-2015
Ext-4(ii)- Certified copy of Final Report.
Ext-5- Copy of e-mail sent to the Divisional Manager, Opposite party.
11. Opposite party failed to rebut such evidence adduced by the Complainant. Complainant also exhibited copy of legal notice addressed to (i) Divisional Manager of the opposite party of Tezpur and (ii) Divisional Manager of the opposite party of Guwahati Division –II. Ext-7 is the said notice. In Ext-7 also it has clearly been mentioned about the information of theft given to the Insurance Company on 19-02-2015. The opposite party failed to give any reply to the aforesaid notice.
12. As the evidence of the Complainant remained unshattered, so, we have no option but to accept the claim of the Complainant. As noted earlier, theft claim of the Complainant was turned down by the opposite party solely on the ground of delayed information given to the Insurance Company.
13. In view of our discussion and decision of accepting the claim of the Complainant, the decision of repudiation of the claim, in our opinion is not sustainable and same amounts to deficiency in service.
The Point No.(ii) is decided accordingly in favour of the Complainant.
14.Point No(iii): Complainant has prayed for –
- Amoun t of IDV of the vehicle Rs.2,32,000
- Loss of income @Rs.20,000 w.e.f 18-02-2015 till Rs.4,70,000
31-01-2017
- For mental pain and agony Rs. 60,000
- For cost of the proceeding Rs. 8,000
TOTAL Rs.7,70,000
15. The Policy (Ext-2) covered the period w.e.f 21-01-2015 to 20-01-2016. IDV of the vehicle as reflected in the Policy was Rs.2,32,000/-.Theft allegedly committed on 18-02-2015.Complainant in his complaint stated that the vehicle was stolen away from his “premises” on the night of 18-02-15. In his evidence, Complainant stated that the vehicle was parked within the campus of his
residential house. Complainant has exhibited and proved FIR, written ejahar lodged in connection with the theft of his vehicle and Final report submitted by police.
16. Ext-4, Ext-4(i) and Ext 4(ii) respectively are the certified copies of aforesaid documents. We have gone through the documents. In the aforesaid documents place of occurrence is shown as “No.1 Panitanki field”(
In Ext4(ii) it has clearly been mentioned that the miscreant had taken, the opportunity of absence of human habitation near the place of occurrence. Complainant has failed to give any clarification about the place of occurrence.
17. Why the Complainant has preferred to suppress material fact as to place of occurrence? However, commission of theft has been found to be an undisputed matter.The opposite party repudiated the claim of compensation on the ground of belated information only as to the commission of theft and we have already decided such repudiation as deficiency in service. So, we are of the opinion that the Complainant is entitled to get compensation but on notional basis of IDV with a lumpsum amount of Rs.10,000/- as cost and compensation which we deem just and proper.
O R D E R
The complaint stands allowed partly with cost. Opposite party is directed to pay Rs.1,74,000/- (i.e 75% of the IDV) of the stolen vehicle with interest at the rate of 6% per annum from the date of complaint and further to pay Rs.10,000/- as cost and compensation.
Opposite party is directed to comply with the award within 30(thirty)days of receipt of copy of the judgment and order.
Given under our hands and seal of this Forum this 27th day of October, 2017.
Dictated and corrected by: Pronounced and delivered
( A.Devee)
President (A. DEVEE)
District Consumer D.R Forum,Sonitpur President
Tezpur District Consumer Disputes Redressal Forum,
Sonitpur,Tezpur
We agree:- (P.DAS) (SMT.S.BORA)
Member Member
