DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

ISBT KASHMERE GATE DELHI

CC/170/2018

No. DF/ Central/

Sh. Prem Prakash Gupta

Proprietor : Supreme Auto Carrier

H.No.441, Sector-14,

Gurgaon (Haryana)-122001                                                      …..Complainant

Versus

National Insurance Company Ltd.

Delhi Regional Office-II,

Motor Claim Hub

2E/25, 3^rd Floor,

Jhandewalan Extension

New Delhi-110055                                                          ….. Opposite Party                                                                   

Coram:       Ms. Rekha Rani, President

                   Ms. Manju Bala Sharma, Member

                    Sh. R.C. Meena, Member

ORDER

Rekha Rani, President

1. Shri Prem Prakash Gupta (in short the Complainant) filed the instant complaint u/s 12 of the Consumer Protection Act, 1986 as amended up to date (in short the Act) pleading therein that he runs a proprietorship firm known by the name of Supreme Auto Carrier which is engaged in the business of transportation and logistics. He is sole proprietor of the said firm. He owns various commercial vehicles which are used for transportation of motor vehicles. He has been insuring all his commercial vehicles with the OP for last many years. One vehicle bearing registration No. HR-55R-8082, Tata Truck was insured in the year 2013 with National Insurance Company Ltd. (in short the OP). The policy was valid from 15.02.2013 to 14.02.2014. The cover was as per Goods Carrying Commercial Vehicle (Open) Policy B Package. The vehicle met with an accident on 31.01.2014. OP carried out survey for assessment of the loss. Complainant expected his claim to be settled at the earliest as all procedural formalities had been completed but the matter was not settled. Hence, complainant has filed instant complaint for seeking direction to OP to pay the complainant a sum of Rs.3,50,000/- towards loss suffered with interest at the rate of 9% per annum, Rs.50,000/- as compensation for harassment and mental agony and Rs.50,000/- as litigation expenses.
2. Complainant also filed an application under Section 24A of the Consumer Protection Act for condonation of delay in filing the instant complaint.
3. OP contested the claim vide its written statement. A preliminary objection is taken to the effect that this Forum has no jurisdiction to adjudicate the matter as the insured vehicle was a commercial vehicle. It is also stated that complainant is not a Consumer under Section 2(d) of the Consumer Protection Act, 1986. Further it is stated that the vehicle was parked on the road side as the driver of the vehicle left it unattended. Therefore, it is not liable to pay anything. It is also stated that the complainant projected Sardar Singh as the driver of the insured vehicle whereas in the FIR dated 03.02.2014 one Raja Ram Jaga was driver of the insured vehicle. It is also stated that the complainant was sent various letters and reminders to provide requisite documents more specifically driving license of Raja Ram Jaga but despite receiving letters and reminders complainant failed to provide the same and finally his claim was closed on 29.01.2015.   
4. Both sides adduced their evidence by way of affidavits.
5. We have heard Shri Bhaskar Nayak Ld. Counsel for complainant and Ms. Karishna Ld. Counsel for OP.
6. Ld. Counsel for the OP vehemently assailed the complaint primarily on the ground that the complainant is not a consumer and that the complaint is barred by limitation.
7. It is complainant’s own case that he is a sole proprietor of Supreme Auto Carrier (Para-1 of the complaint).
8. In para-3 of the complaint he has stated that for his business he owns various commercial vehicles which are used for transportation of motor vehicles. It is also stated that all his commercial vehicles are insured with OP for the last many years. In para-5 of the complaint he has pleaded that the vehicle in question is also commercial vehicle.
9. Complainant himself has placed on record copy of E-mail of Deepak Mehta of OP dated 14.01.2015 vide which he was asked to submit driving licence of Raja Ram Jagga.
10. In the said document dated 14.01.2015, there is reference to seven vehicles which are owned by the complainant including the vehicle qua which claim was pending with the OP company.
11. We confronted Ld. Counsel for the complainant with the contents of the document dated 14.01.2015. He confirmed that claim of the complainant with regard to these seven vehicles was filed with the OP and these vehicles were owned by the complainant proprietorship concern.
12. Complainant cannot own seven commercial vehicles for earning his livelihood. On record of this case file alone complainant is owner of at least seven commercial vehicles which he is admittedly using for commercial purpose i.e. transportation of motor vehicles.
13. In para-3 of the complaint, he has clearly admitted that he owns commercial vehicles which are used for transportation of motor vehicles. Hence, it is clear that the purpose for which the insured vehicle in question was used was commercial.
14. Now a question arises as to whether the complainant is a consumer to maintain the instant complaint before this forum for the redressal of its grievance.
15. The word 'consumer' has been defined under Section 2(1)(d) (i) as under :

“(d) ‘consumer’ means any 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 obtain 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 or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.”

7.     Clause (i) provides that one who buys any goods for a consideration is a Consumer but a person who obtains such goods for resale or for any commercial purpose, is not a consumer. The intention of the Legislature behind said definition of Consumer is that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, such commercial transactions are excluded from the purview of the Act.

The Supreme Court has discussed the term ‘consumer’ in the judgment  reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held:

“The National Commission appears to have been taken 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. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression ‘large scale’ is not a very precise expression - Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression ‘commercial purpose’ - a case of exception to an exception. Let us elaborate: 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 however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self employment’, such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. 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 illustrations would serve to emphasise what we say. A person who purchases 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 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.”

16. Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon'ble National Commission observed thus :-

“3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d) (i) of the C.P. Act.”

17. In Vandana Global Limited vs M/s Jaypee Engg. & Hydraulics Complaint Case No.13/06 before Chhattisgarh State Consumer Disputes Redressal Commission,  Pandri, Raipur (C.G.)  complainant was a limited Company and dealt in the business of manufacturing Sponge Iron, Billets, Power, Ferro Alloys, Ferro Manganese, Metal Ferro Manganese, Silico Manganese, Metal Silico Manganese etc. State Commission vide its order dated 08.04.2013 observed that complainant purchased JP-Rok Machine for commercial purpose and thus complainant was not a Consumer and its request to direct OP to return the amount paid for defective product with interest and compensation was dismissed.

18. In Raj Aggrawal vs G.M.V.E. complaint case No. 23/2009, complainant purchased 4 vehicles.  Claim was filed in respect of each vehicle which was still in warranty period and were not being repaired by the OP.  OP submitted that the vehicle in question was purchased for commercial purposes and plied by the complainant for transportation business for earning profits and therefore he did not come under the category of a consumer. Chhattisgarh State Commission vide its order dated 11/12/2009 observed that: 

“12. From the description of the complainant in the cause title of the complaint, it appears that the complainant is running the business in the name and style as Raj Aggrawal and Company.  The use of word “and company” shows that it was not only Mr. Raj Aggrawal, who is owner of the company, but along with him some other persons are also there and so it has become a company of more than one person that is why along with the name of Mr. Raj Aggrawal, “and Company” word has been used.  In the Certificate of Registration of the vehicle also, name of the registered owner has been shown as “Raj Aggarwal and Company”.  Thus, when the vehicle is property of a Limited Company, // 14 // having more than one person engaged in the affairs of the company, then it can never be said that any of the vehicle, was purchased by a person to earn his/her livelihood by self-employment.  When it is a question of Company, then profit earning motive, is self apparent.   

19. Since the complainant is not a ‘Consumer’ as he is using the insured vehicle in question for commercial purpose, we cannot adjudicate its complaint on merits. Complaint is returned to be presented before the appropriate court/ Forum. 

      Copy of this order be sent to the parties as statutorily required. File be consigned to record room.

Announced on this  3^rd  Day  of Feb. 2020.