Order-8.
Date-12/09/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case in short is that Complainant is a businessman and is engaged in transport business in the name of Pappu Transport as sole proprietorship firm and is an insured person in the present case. It is stated that Complainant is the registered owner of the vehicle bearing No. WB 23C 3685 (Truck) and moving throughout India with the help of National Permit. The Complainant took a package policy from the OP, being the insurer vide policy no. 334027/31/12/0000959, it was effective from 29.06.2012 to 28.06.2012 and the Complainant paid a premium for a sum of Rs.42,728/-. On 23.05.2012 after loading the goods in the above mentioned truck, the truck left for Gopal Ganj being driven by the driver, namely Amit Kr. Singh, son of Lalan Singh of P.S, Terela, District – Chapra and reached the destination on 29.05.2012 at about 07.00 Pm and with the help of local agent namely, Mr. Kausal Prasad unloaded the goods at the destination at about 11.00 Pm. on 29.05.2012. It is stated that after unloading the goods at the destination, the driver of the truck, Amit Kumar Singh garaging the truck by the side of the road near Krishna Talkies went to hood of the truck for sleep and helper of the truck namely Mukesh Kumar Singh was sleeping in the cabin of the truck after locking the door of the cabin of the truck.
At about 1.00 Am to 2.00 Am on 03.05.2012 at night, the driver Amit Kumar Singh felt that the vehicle was moving, then and then he woke up and saw the vehicle was moving along with Gorakpore road. He also noticed that hizaker was talking with another driver at Gorakpore Road and they stopped the vehicle in the mid-way. The driver of the Complainant jumped from the truck and escaped his life and later on the driver went to Gopalganj Police Station where he met with the cleaner in the mid-way and he lodged FIR vide Gopal Ganj P.S. Case No. 180/12 dated 30.05.2012 u/s 395/120 (B) IPC and later on the case has been ended with charge-sheet vide Gopal Ganj PS Charge sheet No. 295/13 dated 31.07.2013. Thereafter, the Complainant lodged claim to the insurer through its agent on 30.05.2012 and requested to settle the theft claim according to DIV for a sum of Rs.16 lacs.
It is alleged that the Complainant from 30.05.2012 till 28.08.2014 requested the OP to settle the claim, but OP did not care to reply or settle the claim. The OP however, demanded some papers to settle the claim and the Complainant sent all the documents but received no reply from the OP. The Complainant also sent a legal notice dated 20.05.2012 to the insurer with request to settle the claim, but to no good. The Complainant alleged gross negligence on the part of the OP. It is also stated that Complainant moved to the Hon’ble Insurance Ombudsmen, but to no good. It is stated that the insurer has repudiated the claim on 27.12.2012 which the Complainant came to know from OP on the date of hearing of the matter before the Hon’ble Insurance Ombudsmen. The Complainant has alleged negligence and deficiency of service on the part of OP. It is stated that the OP is deficient in rendering service and has repudiated the claim illegally and such repudiation is bad in law. The Complainant has prayed for direction upon the OP to release the claim to the extent of Rs.16 lacs and also other reliefs in terms of prayer in the petition of complaint.
Despite service of Summons, none appeared from the side of the OP to contest the case and the case has proceeded ex parte against the OP.
Point for Decision
- Whether the case is maintainable in its present form and prayer?
- Whether the Complainant is entiled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. photocopy of vehicle particulars, photocopy of certificate for Policy schedule, photocopy of FIR in Hindi, photocopy of original FIR in Hindi, photocopy of legal notice and other documents on record.
Complainant has stated in his petition of complaint that he is a businessman and is doing transport business in the name of Pappu Transport and that he is also registered owner of the truck bearing No. WB 23C 3685. Admittedly, the Complainant is a businessman and is running his business for commercial gain. So, it is clear that the Complainant purchased the truck for commercial purpose and not for in other purpose. The definition of consumer is envisaged u/s 2 (1) (b) of CP Act. and on plain reading of the aforesaid definition it would be seen that the definition itself capes out an inbuilt explanation to that effect that if the services of the OP are hired or availed for commercial purpose, the person would not fall within the definition of the consumer. There is no averment in the petition of the complaint that Complainant is running the business for livelihood. So, we can conclude that Complainant is not a consumner within the meaning of Section 2 (1) (d) or “ Complainant “ within the meaning of section 2 (b) of CP Act. The truck as we find was purchased by the Complainant for commercial purpose.
It is alleged by the Complainant that the truck bearing No.WB 23C 3685 left for Gopal Ganj being driven by the driver namely, Amit Kumar Singh, but we are afraid no driving license in favour of Amit Kumar Singh is forthcoming before us. Moreover, Complainant has stated that he has National Permit, but no permit is also filed or forthcoming before us from the side of the Complainant. Moreover, we find that there was gross negligence on the part of driver as he had left the Ignition Key in the starter while going to sleep. Moreover, even the cabin doors and windows were kept in lock condition, how the theft occurred ? Moreover, it is stated that cleaner also fell asleep inside the cabin. It appears that the Complainant has failed to produce any valid and effective driving license in the name of the Driver, Amit Kumar Singh at the relevant time of alleged theft. Moreover, keeping Ignition Key on the vehicle establishes the negligence at the part of the driver.
Moreover, we find that as per the own version of the Complainant the claim was repudiated by the Insurer on 27.12.2012, but the complaint as we find has been filed on 23.05.2017. The stipulated period of 2 years have already been elapsed since the arise of the cause of action. We think that the case is also barred by limitation on such score.
As a logical corollary of the discussion as made above and having regard to the document on record, we think that Complainant could not establish his case beyond all reasonable doubt. Moreover, Complainant does not also appear to be a consumer u/s 2 (1) (d) of CP Act.
We are afraid, we cannot concede to the prayer of the Complainant.
Consequently the case merit no success.
Hence,
Ordered
That the instant case be and the same is dismissed ex parte against the OP.
No order as to cost.
