Smt. Bandana Ray, President
This is a complaint made by Sri Chandan Kumar Maity against National Insurance Co. Ltd., praying for a direction upon the OPs to pay Rs.1050000/- as insurance claim, and compensation for a sum of Rs.200000/- and litigation cost of Rs.20000/-.
In short, case of the Complainant, is that the complainant is the owner of a Heavy Goods Vehicle of Ashok Leyland make registered in the Office of Motor Vehicle Dept. Tamluk with registration no. WB 29A-3306. The said vehicle was insured under the OP being policy no. 150303/31/136300006199 and it was used for the purpose of self-employment of the complainant. The truck, on 10.10.2014, was proceeding towards Cuttack (Orissa) with consignment of Palm Refine Oil loaded from M/s Gokul Refoils & Solvent Ltd. Haldia and crossed Debra Toll Plaza on NH 6 at about 11.20 PM at night. The truck was being driven by driver Srikrishna Bera and Biswajit Dhara was helper. Just after crossing Debra Toll Plaza, some miscreants came over the vehicle and assaulted the driver and helper severely and hijacked the truck with all the goods in between Madpur and Lachhmapur under Kharagpur P.S. and the driver and helper were thrown away in unconscious condition by the side of the Highway. The driver and the helper, after treatment at Midnapur Hospital, were taken into custody by the Kharagpur P.S. for interrogation after initiation of KGP(L) PS Case no. 568/14 dtd. 17.10.2014 u/s 394/397 IPC which was subsequently converted into GR No.3679/14 in the Ld. Court of CJM, Paschim Medinipur and police submitted Final Report in the Police case.
Thereafter, complainant lodged a claim for total loss of his vehicle before the OP on 20.10.2014 to the tune of Rs.1050000/- alongwith all relevant documents. The OP on the basis of claim informed the complainant vide their letter dtd. 15.02.2016 that they are repudiating the claim on the ground that at the time of hijack, the driving license of the driver, Srikrishna Bera, was not in force. The complainant communicated vide letter dtd. 27.02.2016 which was received by OP on 29.02.2016 with all documents that the driver was holding driving license being no. 10515(F)/Mid dtd. 03.03.1995 authorising to drive LMV/HGV as issued from RTA, Midnapore (now Paschim Midnapur) and the said driving license was subsequently renewed from RTA, MV Dept., Tamluk with change of address of the driver from Paschim Medinipur jurisdiction to Purba Medinipur jurisdiction. The OP subsequent thereto repudiated the claim and closed the claim file as ‘NO CLAIM’, Hence, the case.
The OPs contested the case by filing written version wherein OPs denied all material allegations made by the complainant. The OPs stated that on 20.10.2014 they received one claim in prescribed form from the complainant and after proper verification through investigator, appointed by the OPs, it was revealed that the driver of the questioned vehicle-Truck WB 29A-3306 (HGV) did not held and/or possessed valid and effective driving license on the very day of hijacking the vehicle i.e. on 10.10.2014. It was also revealed that the driving license of the driver, Srikrishna Bera, was originally issued from Motor Vehicles Authority, Paschim Medinipur on 03.08.1995 having its validity upto 07.08.2014 and one NOC was issued by the Motor Vehicles Authority, Paschim Medinipur on 07.08.2014 in favour of the driver for transferring his license from Pashim Medinipur to Purba Medinipur for changing his address of residence.
The MVD of Purba Medinipur issued driving license of the driver as printed on 30.12.2014 with its validity upto 25.12.2017 counting for last three years from 26.12.2014 and hence the driver, on the day of hijack i.e. on 10.10.2014, was driving the truck without any valid and effective driving license. Thus the complainant violated specific terms and conditions of the Insurance Policy Certificate and hence, OPs have rightly repudiated the claim of the complainant. The OPs pray for summarily dismissal of the instant case.
Point to be considered
- Whether the complaint is maintainable?
- Whether the Complainant is entitled to the relief(s) sought for by him.
Decision with reasons
Both the issues are taken up together for brevity and convenience of discussion as they are interrelated. We have heard the submission of ld. Lawyers of both sides. We have also perused the documents filed by the complainant. It appears from the annexure 10 that annexure 10 is Motor Claim Form filed by the complainant. In clause C of the Form says “For what purpose was the vehicle being used at the time of accident?”. Complainant in reply to that question has written “Commercial purpose”. Section 2(1)(d) of the Consumer Protection Act, 1986 to the extent it is relevant provides that though Consumer means any person who hires or avails of any service for a consideration, it does not include a person who avails of such services for any commercial purpose. The explanation attached below the aforesaid clause, to the extent it is relevant, stipulates that commercial purpose of earning his livelihood by means of self-employment as appearing from the complainant’s own document (annexure 10) that the complainant used the vehicle for commercial purpose. In this connection we rely on a decision reported in 2015 (4) CPR 129 (NC) that “Consumer does not include person who avails of such service for commercial purpose”.
In our considered view, since the complainant is not a ‘consumer’ within the meaning of Sec 2(1)(d) of the Consumer Protection Act, 1986, the complaint should be dismissed and complainant is not entitled to get any relief as prayed.
Hence,
O R D E R E D
That CC/78/2016 be and the same is dismissed on contest against the OP. We make no order as to cost.
Let the copies of the judgement be supplied to all the parties free of cost.
