Sri S.K.Sahoo,President.
The complainant has filed a complaint U/s. 12 of C.P.Act,1986.
2. The case of the complainant is that he is the Proprietor of M/s. Laxmi Enterprises and resident of Vill.Canal Road,Nalco Nagar,Angul. He has purchased one Hydra which was registered as OR-19G- 8885 to maintain his livelihood. Annexure- 1 is the copy of the Registration certificate. The said Hydra was drove by one Ranjit Ku.Sahu inside the Jindal Steel and Power Ltd. situated at Nisha. The complainant earned his livelihood out of the income from the engagement of such Hydra in the Jindal Steel Plant. The Hydra was insured under the opp.party and insurance policy certificate No. 163800/44/13/5900000030 was issued in favour of the complainant. Annexure- 2 is the photo copy of the said insurance policy certificate. On 20.05.2014 the aforesaid Hydra was standing inside the JINDAL Plant for change of break oil but all of a sudden one crane bearing No. OR-19M 4633 came in high speed from the backside of the Hydra dashed against each. Due to such accident the driver of the Hydra sustained injury on his person and the Hydra was severely damaged. The driver namely Ranjit was shifted to Ashwini Hospital ,Cuttack , where his leg was amputated. The elder brother of the driver Ranjit submitted the written report before the IIC,Industrial P.S,Nisha on 21.05.2014 .The photo copy of the FIR is A-3 ( three sheets). After the accident the vehicle was shifted to Laxmi Motors,Harimahuri Chhak ,Angul and after thorough verification on 25.05.2014 the loss and damaged was assessed for Rs. 2,09,469.00 primarily. Subsequently the loss came to Rs. 2,21,945.56 excluding the labour charges. Annexure- 4 & 5 are the photo copy of the cash memos issued by Laxmi Motors.The complainant informed the opp.party about the accident for which , the surveyor was deputed to assess the loss. He inspected the vehicle at the spot and evaluated the damage but did not supply the copy of the survey report to the complainant. The opp.party is bound to supply the copy of the survey report under insurance law. The complainant submitted his claim form along with other documents issued by authorised service station at the office of opp.party situated at Angul. Although the opp.party assured to pay the amount to compensate the loss sustained by the complainant , he did not pay the same. The complainant has spent Rs.2,21,945.56 from his own pocket on 12.06.2014 and paid an amount of Rs. 50,000.00 towards labour cost and to-chain charges to make the Hydra road worthy. Without application of mind the opp.party has repudiated the claim on the ground of lack of driving licence of Ranjit Ku.Sahu, when it is not required at all as the accident took place while the Hydra was standing. So the complainant was forced to file this complaint against the opp.party.
3. In pursuance of notice issued by this Forum ( at present Commission ) the opp.party entered his appearance through his advocate and filed his written statement on 03.05.2017 , copy of which was served on the Learned Counsel for the complainant on 03.07.2017.
4. The case of the opp.party is that the claim raised by the complainant is not maintainable in the eye of law . The complainant is not consumer as defined under Consumer Protection Act,1986. The case is bad for non-joinder and mis-joinder of necessary parties. The complainant applied for a Contractor/Plant & machinery Policy and opp.party issued the policy in respect of the Hydra bearing No. OR-19G-8889 on the terms and conditions of the policy. According to the complainant the said Hydra was met with an accident on 20.05.2014 inside JSPL,Angul. Getting such information from the complaint the opp.party deputed the surveyor for spot survey. It is not a fact that on 20.05.2014 the accident took place while the Hydra was standing. FIR is not a substantive piece of evidence. From the certified copy of the driving licence of the driver of the Hydra namely Ranjan Ku.Sahu it appears that he has been authorised to drive LMV (Non-Transport) w.e.f 16.6.2009, Transport vehicle M/HMV (REGID CHASSIS)-GOODS w.e.f 15.12.2010. There is no endorsement of CNEQP in the driving licence of Ranjan Ku.Sahu. .The driver Ranjan Ku.Sahu has no valid and effective driving licence to drive the Hydra. As the said driver Ranjan Ku.Sahu was not holding a valid licence to drive the Hydra at the time of accident the opp.party repudiated the claim. The surveyor deputed by the opp.party during his spot inquiry came to know that the Hydra was in operation at the time of accident. Finding some problem in the Hydra the driver came down and standing near right wheel area to find out the cause of the problem. The cause of the accident is due to negligence of the driver/operator Ranjan Ku.Sahu. If at all the vehicle was not stopped due to some problem obviously there would have no accident. The accident is the cause of manhandling of Hydra by the driver. The opp.party had engaged the surveyor Engineer B.K.Pattanaik who assessed the loss at Rs. 1,84,624.00. The surveyor is the actual person to assess the loss. Though the surveyor assessed the loss to be Rs. 1,84,624.00 , the opp.party repudiated the claim after due application of mind. The allegations made by the complainant in his complaint petition is false and baseless. On 25.2.2015 and on 24.03.2015 the opp.party had written several letters to the complainant .The opp.party has rendered his service perfectly. The case filed by the complainant be dismissed.
5. No evidence was adduced by both the parties.
6. The complaint petition filed by the complainant is supported with affidavit. The fact that the complainant purchase the Hydra bearing Regd. No. OR-19G 8885 and it was insured under the opp.party is not disputed. Annexure-1 is the photo copy of the Registration Certificate of the Hydra which shows that it has been registered in the name of Sri Laxmi Enterprises which has been registered on 30.07.2009. Annexure- 2 is the photo copy of the insurance policy issued by the opp.party in favour of the complainant company. On perusal fo the said policy it is clear that the policy was valid from 14.09.2013 to mid night of 13.09.2014. The alleged accident took place on 20.05.2014 . Annexure-3 is the photo copy of the written report and the formal FIR drawn by IIC ,Industrial area on 25.05.2014. On perusal of the written report submitted by the Ranjan Ku.Sahu the elder brother of the driver Ranjit Ku.Sahu it appears that on 20.05.2014 while the Hydra bearing Regd. No. OR-19G- 8885 was standing in side JINDAL steel Plant one crane bearing Regd. No.OR-19M-4633 came in high speed and dashed against Hydra from its back side , causing damage to the Hydra and injury to the Driver Ranjit Ku.Sahu , who was standing near by.Although FIR is not substantive evident, it is the material to dispose of this Consumer Case,
7. The Learned counsel for the opp.party relied on preliminary private and confidential survey report dtd. 04.06.2014 prepared by one Pravat Kumar Pradhan .On perusal of the written statement and the documents filed by the opp.party at the time of filing of written statement it is clear that the opp.party has not relied on such documents in his show cause filed, nor the copy of the said document was supplied to the complainant during hearing of the case. He has relied on the decision of Hon’ble High Court of Karanatak passed in MFA NO. 201484/2016 (MV) , The Oriental Insurance Co.Ltd., Vrs. Annema and others ,disposed of on 23.11.2017 and another decision of the Hon’ble Supreme Court passed in Civil Appeal No. 1731 of 2006 National Insurance Co.Ltd.Vrs. Kusum Rai & others disposed of on 24.03.2006 .
On the other hand the Learned Counsel for the complainant relied on a decision passed by Ho’ble Karnatak High Court in M/s. BSCPL Infrastructure (Pvt.) Ltd. Vrs, Sri Muniraju & others, in M.F.A No. 10720 of 2013 & M.F.A. No. 10721 of 2013 , disposed of on 03.02.2020 and Hon’ble Supreme Count in National Insurance Co Ltd. Vrs. Harsolia Motors and others disposed of on 13.04.2023 in Civil Appeal No. 5354 of 2001,2821 of 2012, 3350 of 2018.
8. The Learned Counsel for the opp.party submitted that the complaint is not a consumer as he is a contractor and engaged the insured vehicle for commercial purpose. In the complaint petition the complainant specifically mentioned that he has purchased the Hydra and engaged in business to earn his livelihood. The opp.party failed to produce any document to show that the complainant has purchased the Hydra and engaged the same for commercial purpose to earn profit . However, the insured had made insurance policy under the opp.party to compensate the loss or damage caused to the Hydra during the coverage of insurance period .He has not taken the insurance policy for commercial purpose. The Learned Counsel for the complainant drew our attention to paragraph-43 and 44 of the decision of the Hon’ble Appex Court in Civil Appeal No. 5354 of 2007 and other cases (Suppra) between National Insurance Co.Ltd Vrs. Harsolia Motors and others, which is as follows:-
“Paragraph-43. Applying the above principles in the present case, what needs to be determined is whether the insurance service had a close and direct nexus with the profit generating activity and whether the dominant intention or dominant purpose of the transaction was to facilitate some kind of profit generation for the insured or to the beneficiary and our answer is in the negative and accordingly we are of the view that the complaint filed by the respondent insured herein has no close or direct nexus with the profit generating activity and the claim of insurance is to indemnify the loss which the respondent insured had suffered and the Commission has rightly held that the respondent is a "consumer" under Section 2(1).
(d) of the Act, 1986.
Paragraph-44. We further reiterate that ordinarily the nature of the insurance contract is always to indemnify the losses. Insurance contracts are contracts of indemnity whereby one undertakes to indemnify another against loss/damage or liability arising from an unknown or contingent event and is applicable only to some contingency or act likely to come in future”.
So the argument of the Learned counsel for the opp.party that the complainant is not a consumer under the Consumer Protection Act, 2019 holds no water.
The Learned Counsel for the opp.party further argued that there is no endorsement by the registering authority on the driving licence of the driver, authorised him to drive the Hydra. From the documents filed by the opp.party it appears that Ranjit Ku.Sahu has no valid licence to drive the alleged Hydra. However, in the written statement the opp.party has alleged that one Ranjan Ku.Sahu was driving the Hydra and operating the same at the time of accident. So , when the opp.party in his written statement has specifically alleged that Ranjan Kumar Sahu was operating the Hydra of the complainant is not true. So the argument of the opp.party that Ranjit Kumar Sahu was no valid driving licence is contrary to the contents of the written statement and beyond pleading . From the survey report, FIR and other documents available in the case record it is clear that when the Hydra was standing in side the JSPL plant area the accident took place. So the argument of the opp.party that the driver of the Hydra has no valid licence at the time of accident is no way helpful for the opp.party, as the accident took place when the Hydra is in a static position and the driver was not on the Hydra and standing by the side of the Hydra, the driving licence of Ranjit Kumar Sahu is no way helpful to the opp.party in this case.
The Learned counsel for the opp.party relied on information obtained by Sumanta Ku.Biswal from RTO,Angul . When the opp.party in his written statement admitted that Ranjan Ku.Sahu was the driver of the alleged Hydra , the information relates to Ranjit Ku.Sahu. However the said information is no way relevant for disposal of the case, as the damaged Hydra was standing at the time of accident. It is also clear from the case record that without any basis the opp.party repudiated the claim. It is not only deficiency in service on the part of the opp.party, it is also unfair trade practice by the opp.party.
9. Hence order :-
: O R D E R :
The case be and the same is allowed in part on contest against the opp.party. The opp.party is directed to pay Rs.2,39,624.00 (Rupees Two lakh Thirty-Nine Thousand Six Hundred Twenty-Four) only {Rs.1,84,624.00(Rupees One Lakh Eighty-Four Thousand Six Hundred Twenty-Four)only cost of damage as per surveyor report + Rs.30,000.00 (Rupees Thirty Thousand) only labour charges + Rs.25,000.00 (Rupees Twenty-Five Thousand) only cost of litigation} along with interest @ 9% per annum to the complainant from the date of filing of complaint. The opp.party is further directed to comply the order within one month from the date of receipt of this order, failing which the awarded amount will carry on penal interest @ 12% per annum from the date of default to till payment is made.
