Haryana

Karnal

260/2014

Hardeep Singh S/o Inder Singh - Complainant(s)

Versus

National Insurance Company Limited - Opp.Party(s)

Vinod Dogra

08 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                               Complaint No.260 of 2014

                                                             Date of instt.:16.09.2014

                                                               Date of decision:8.12.2016

 

Hardeep Singh son of Shri Inder Singh, resident of House no.1086, Sector 6, Urban Estate, Karnal.

 

                                                                   ……..Complainant.

                                      Vs.

1. National Insurance Company Limited, Santokh Market, Railway Road, Karnal, through its Senior Divisional Manager.

2. Branch Manager, National Insurance Company Limited, Dhanwant Building, G.T.Road, opposite Bus Stand, Karnal.

 

                                                                   ………… Opposite Parties.

                     Complaint u/s 12  of the Consumer Protection Act.

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh.Vinod Dogra Advocate for the complainant.

                    Sh. K.D.Goyal Advocate for the Opposite parties.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that he got insured his truck bearing registration no.HR-46-B-2266 with opposite parties, for insured value of Rs.4,50,000/- vide policy no.420501/31/12/6300005850 valid from 07.01.2013 to 06.01.2014. He was having 50 trucks including the said truck and the same were engaged in Pepsi Plant. He had been doing transport work for the last 18 years and his office was located in front of Pepsi Plan near Fauji Dhaba. On the night of 29.11.2013, 10-12 trucks including his truck were parked in the vacant plot in front of his office of transport. In the morning of 30.11.2013, when he reached the office, he found that his truck was missing. He and his employees tried level best to trace out the truck, but could not trace the same. He moved an application to the Station House officer, Police Station Sadar Panipat and on the basis of same, First Information Report no.430 dated 30.11.2013 was registered. He also informed the opposite parties at their branch office at Karnal and submitted all the required documents. Claim no.42050/31/13/63/90000169 was registered. He visited the office of opposite party no.2 for release of his claim, but the officials of opposite party no.2 postponed the matter on one pretext or the other. The opposite parties issued letter no.MCH/169/BOKNL/2013/3329. Thereafter he wrote letter dated 7.3.2014 to opposite party no.1 informing that at the time of theft the ignition key was not in the vehicle and door was also locked. Both the keys i.e. ignition key and door key were handed over to the Investigator Mr. R.N. Sharma. Then, the opposite parties issued letter dated 21.3.2014 seeking his comments and he submitted reply thereto, vide letter dated 9.4.2014. However, his claim was repudiated, vide letter dated 16.6.2014 illegally, which caused him mental agony, pain and sufferings apart from financial loss.

2.                Notice of the complaint was given to the opposite parties, who appeared and filed written statement disputing the claim of the complainant. Objections have been raised that the complaint is not maintainable in the present form; that the complainant has not approached this forum with clean hands; that this forum has no jurisdiction to entertain and decide the present complaint; that the complainant has no cause of action to file the complaint and that the complaint is frivolous, baseless and vexatious.

                   On merits, it has been submitted that at the time of theft the ignition key was in the vehicle though the door was locked which amounted to violation of insurance policy. The keys produced by the insured were of some other vehicle. The driver and the owner had given statements to the Investigator that ignition key was in the vehicle and he had handed over the keys of other vehicle. Therefore, opposite parties were not liable to pay any amount to the complainant.

3.                In evidence of the complainant, his affidavit EX.CW1/A and documents Ex.C1 to C11 have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of Ravi Goswami  Ex.OP1, affidavit of R.N.Sharma Ex.OP2 and documents Ex.OP3 to OP7 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                Learned counsel for the opposite parties put a great thrust upon the contention that the complainant in his complaint has admitted that he was having 50 trucks and was carrying on transport business. The said truck was also used by him for his transport business and was insured as commercial vehicle and being used for commercial purpose. Therefore, the complainant does not fall within the definition of consumer as provided under section 2(d) of Consumer Protection Act. Consequently, the complaint is not maintainable on this ground alone. In support of his contention he has placed reliance upon 2014(2) C.P.R. 691 case tiled as Max Infra (India) Ltd., Rep. by its Chairman, Dr.M.S. Phani Kumar Versus Ashok Leyland Ltd. and others.

7.                On the other hand, learned counsel for the complainant vehemently argued that the other trucks were in the name of the company, whereas the insured truck was n the name of the complainant and the same was used by him to earn his livelihood, therefore, it cannot be said that the truck was being used for commercial purposes. Consequently, the complainant falls within the definition of consumer. It has further been contended that no plea has been raised by the opposite parties in the written statement that the complainant is not a consumer, therefore, such plea cannot be raised by the opposite parties at the stage of arguments.

8.                 There is no dispute regarding the fact that truck no. HR-46-B-2266 of the complainant was insured with the opposite parties for the period of 7.1.2013 to 6.1.2014 and the same was stolen on the intervening night of 29/30.11.2013, while lying parked in vacant plot in front of the office of the complainant. The claim of the complainant was repudiated by the opposite parties on the ground that at the time of theft ignition key was in the vehicle  though the door was locked, which amounted to violation of insurance policy.

9.                No doubt the opposite parties in the written statement have not specifically raised the objection that the complainant is not a consumer within the definition of Consumer Protection Act as the truck was being used for commercial purpose, but such a legal plea raised by the opposite parties even at the stage of arguments cannot be discarded. It is settled proposition of law that legal plea regarding maintainability of the complaint can be raised at any stage, even if not specifically raised in the pleadings. The complainant in para no.4 of the complaint pleaded that he was having as many as 50 trucks including the truck in question, which were engaged in Pepsi Plant, where transport work was being carried out for the last more than 18 years and his office was located in front of Pepsi Plant near Fauji Dhaba. It is pertinent to note that it has not been pleaded by the complainant that the said truck was purchased by him to earn his livelihood by means of self-employment and that the other trucks were owned by some transport company with which the said truck was attached. Even no evidence has been placed on record by the complainant which may prove that he was having only the truck in question and the other trucks were owned by some transport company. His pleadings in the complaint make it quite clear that he was having 50 trucks and had been doing transport work for the last 18 years and was having his transport office in front of Pepsi Plant. Therefore, under such circumstances, it cannot be said by any stretch of imagination that the truck in question was purchased by the complainant to earn his livelihood by means of self-employment, rather the facts and circumstances make quite evident that the truck in question was being used for commercial purpose for transport business run by the complainant. Therefore, the complainant does not fall within the definition of Consumer as provided under section 2(d) of the Consumer Protection Act. The proposition of law laid down by Hon’ble National Commission in Max Infra (India) Ltd.  case (supra) is fully applicable to the facts of the present case because in that case Tipper Vehicle was purchased for commercial purpose. It was held that the complainant was not a consumer, therefore, the complaint was dismissed with the liberty to the complainant to approach proper Forum/Civil Court for redressal of his grievance.

10.              In view of the foregoing discussions, we have no hesitation in concluding that the complaint does not fall within the definition of Consumer as provided under section 2(d) of the Consumer Protection Act as the insured truck was being used for commercial purpose, therefore, the complaint is not maintainable. Consequently, the complaint is dismissed being not maintainable. However, the complainant would be at liberty to approach proper Forum/Civil Court for redressal of his grievance. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 8.12.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member