BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 27th February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.216/2013
(Admitted on 13.08.2013)
Mr. Henry Tauro,
S/o Johan Tauro,
Aged about 50 years,
R/at Tauro Wood Industries,
APMC Road, Salmara,
Puttur, D.K.
….. COMPLAINANT
(Advocate for the Complainant: Sri SD)
VERSUS
Manager,
National Insurance Co. Ltd,
1st Floor,
Dharmasthala Building,
Main Road, Puttur, D.K.
…......OPPOSITE PARTY
(Advocate for the Opposite Party: Sri ALS)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainants Hydraulic Mobile Crane was insured with opposite party for Rs.6,52,339/ On 25.04.2013 at 4.00 pm complainant vehicle while lifting wood at his industry at Puttur became faulty and overturned suffered damages. Information was given to opposite party surveyor was appointed by opposite party he surveyed the damages and issued an estimation of Rs.4,13,666/. However opposite party repudiated the claim of complainant’s on the ground overturning not covered under the policy. Complainant claims that he could not repair the vehicle in question the complainant had claimed without surveying policy conditions opposite party cannot repudiate his claim as no such policy condition exist as claimed by opposite party. As such legal notice was issued and seeks the relief in the complaint as mentioned the opposite party had repudiate the claim.
II. Opposite party in the version claims, opposite party under IMT 47 extra premium has to be collected for covering the risk of overturning which was not done by complainant. It is also claimed as such this led to repudiation. The surveyor reported as per report of 21.5.2013 that the driving licence of the driver was not supplied to him and he assessed the loss at Rs.1,02,381/
2. In support of the above complainant Mr. Henry Tauro filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite parties Mr. Dinakara Rao N (RW1) Administrative Officer, also filed affidavit evidence and answered the interrogatories served on him.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of argument. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows:
Point No. (i): Negative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i) & (ii): The policy issued covering the risk of the complainant’s vehicle/machine in question is admitted by opposite party. There is difference of opinion between the parties as to whether the incident under the policy is covered or not. Hence there is relationship between the parties as consumer and service provider despite of the risk during the period of the incident.
2. As mentioned earlier the policy issued to the complainants vehicle/machine is not in dispute. Ex.C1 is the copy of the policy. As seen from page 2 of this in respect of the column pertaining to limits of liability there is mention made that IMT endorsement numbers printed herewith attached hereto 7, 21, 52, 24, 40. In view of this clause of mention made of supplying of endorsement it does not include the IMT 47 the claim of complainant was not supplied the copy of the policy condition cannot be accepted.
3. Ex.C3 is the Motor Claim Form submitted by complainant with opposite party in this the name of the driver at the time of accident is mentioned as Ignautius Leo S a resident of Ramanathapuram District and shown as a paid driver. Last date of valid of DL is shown as 9.8.2013 the date of accident is 25.4.2013. Opposite party claimed that the complainant’s driver DL were not produced before the surveyor and that led to rejection of complainants claim. However as can be seen from the case file of opposite party has not produced even the report of the surveyor leave alone any reports pertaining to the verification of the DL number of the driver at the time of the incident. Hence opposite party had failed to establish that not holding of DL of the driver as a ground for rejection of the claim.
4. It is not the case of complainant that this DL of the driver was produced before the surveyor. However the overturning of the vehicle at the time of the incident is a mater admitted by the complainant.
5. As seen from the evidence of the complainant the driver was a paid driver who was driving vehicle at the time of the incident. According to complainant this Hydraulic Mobile Crane was employed in loading logs. Even in the complaint he mentions the Hydraulic Mobile Crane he mentioned is of the complainant. As rightly pointed out by opposite party it is not the case of opposite party that he and the driver of the crane alone were employed in his industry. As seen from answer to question No.5 of the interrogatories complainant mentioned the said two industries belong to him. It is dealing with selling with wooden logs. Considering these as pointed out for opposite party the claim that the vehicle was of employed to earn livelihood by complainant cannot be accepted. Hence the claim of opposite party that the claim of complainant as the vehicle was involved in accident the complainant is not falling within the definition of consumer as he employed the complainant this Forum has no jurisdiction to entertain the complaint. In fact the learned counsel for opposite party referred to a reported judgment of the National Consumer Disputes Redressal Commission, New Delhi 2016 (2) CPR 865 (NC) Mahesh Kumar vs. M/s Shubhankar Marketing Pvt Ltd., held:
Consumer Protection Act, 1986 Section 2 (1) (d) Machinery Compressor Manufacturing defect Commercial purposes Though practitioner in his affidavit has made bald statement that he was engaged in business of drilling/digging bore-wells which was only source of livelihood He has nowhere stated in complaint that he was carrying out business for of self employment Petitioner had employed few persons to assist him in carrying out his business In order to have protection of Explanation to Section 2 (1) (d) (ii), one must establish that he himself was engaged in activity which generates livelihood Acting in supervising capacity would not satisfy requirement of explanation-Revision petition dismissed.
6. Reference was made to another judgment of Apex Court in 2016 (3) CPR 323 (SC) Bunga Daniel Babu vs. M/s Sri Vasydeva Cibstryctuibs & Ors held:
(a) Consumer Protection Act, 1986 Section 2 (1) (d) Consumer A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression consumer Whether a person would fall within the definition of consumer or not would be a question of fact in every case.
Ongoing through the Bunga Daniel Babus case it is clear whether a person who buys goods and uses them himself exclusively for personal livelihood or in business would depend on the facts and circumstance of the case. In the case on hand even though complainant alleges he earns his livelihood from employing the crane it cannot be construed he himself was operating a crane as he employed a driver and that the complainant was engaged in selling wooden logs. Even according to complainant the crane was employed in this wood industry. Hence we are of the view that what the complainant was engaged in using the vehicle the crane has to be construed as commercial purpose.
7. The learned counsel for complainant had referred to a reported case National Consumer Disputes Redressal Commission, New Delhi, IV (2015) CPJ 405 (NC) Nikita Cares vs. Surya Palace held:
Consumer Protection Act, 1986 Sections 2 (1) (g), 21(b) Consumer Installation of lift Commercial purpose Consumer Fora have no jurisdiction but opportunity granted to complainant to seek redressal of its grievances before Civil Court.
8. Even in National Consumer Disputes Redressal Commission, New Delhi, II (2013) CPJ 72 (NC) General Motors India Pvt, Ltd, Vs. G.S. Fertilizers (P) Ltd. & Anr, is not in favour of complainant. Thus we are of the opinion that the complainant’s being not a consumer the complaint is not maintainable before this Forum. If so advised complainant can approach Civil Court for redressal of claim. Hence we answer points No.1 and No.2 in the negative
POINTS No. (iii): Wherefore the following
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 8 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 27th February 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Henry Tauro
Documents marked on behalf of the Complainant:
Ex.C1: 29.03.2013: Copy of the Insurance Policy of the OP
Ex.C2: 27.04.2013: Copy of the estimation
Ex.C3: 07.06.2013: Copy of the claim form
Ex.C4: 14.06.2013: Repudiation letter issued by OP
Ex.C5: 21.06.2013: O/c of regd. notice
Ex.C6: 01.07.2013: Reply of the OP
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Dinakara Rao N, Administrative Officer
Documents marked on behalf of the Opposite Party:
Nil
Dated: 27.02.2017 PRESIDENT
