Assam

Sonitpur

CC/8/2017

Anuwar Haque - Complainant(s)

Versus

New India Assurance Co. Ltd - Opp.Party(s)

Salim Khan

05 Mar 2018

ORDER

Final Order
District Consumer Disputes Redressal Forum, Sonitpur Tezpur
 
Complaint Case No. CC/8/2017
( Date of Filing : 17 Feb 2017 )
 
1. Anuwar Haque
S/O Samsuddin Haque Vill& P/O : Biswanath Chariali
Sonitpur
Assam
...........Complainant(s)
Versus
1. New India Assurance Co. Ltd
Tezpur Branch
Sonitpur
Assam
2. Ashok Motor
Biswanath Chariali Sonitpur Tezpur
Sonitpur
Assam
3. Ashok Motor Servicing Centre
Dekargaon , Near Ralway Station-784001
Sonitpur
Assam
4. MMFSL
Tezpur Branch Sonitpur, Assam-784001
Sonitpur
Assam
............Opp.Party(s)
 
BEFORE: 
 JUDGES Smit Aruna Devee PRESIDENT
 HON'BLE MRS. Smt Sangita Bora MEMBER
 HON'BLE MR. Sri Pramoth Das MEMBER
 
For the Complainant:
For the Opp. Party:
Dated : 05 Mar 2018
Final Order / Judgement

IN THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL   FORUM   

                                                    SONITPUR  AT  TEZPUR

 

District:                    Sonitpur  

 

Present:                    Smti A. Devee

                                      President,

District Consumer D.R Forum,

Sonitpur, Tezpur

 

Sri  P.Das

Member

District Consumer Disputes

Redressal  Forum, Sonitpur

 

Smti S.Bora

Member

District Consumer Disputes

Redressal Forum,Sonitpur

 

                                      CONSUMER COMPLAINT NO.08/2017

 

Anuwar Haque                                                   :           Complainants

S/o Samsuddin Haque

        Vill & P.O: Biswanath Chariali

        Dist: Sonitpur,Assam

Vs.                      

 

1.New India Assurance Co.Ltd.                                    :           Opp. party

Tezpur Branch.

2. Ashok Motors

Biswanath Chariali

Dist: Sonitpur, Assam

3.Ashok Motors Servicing Centre.

Dekargaon Near Railway Station, Tezpur

Dist: Sonitpur, Assam

4.M & M Financial Service Ltd, Tezpur Br.                          :               Proforma O.P

 

 

                

 

Appearance:

Mrs Salim Khan, Advocate.                                                            :               For the Complainant

Mr P.C. Sarmah, Advocate.                                                                    :              For the Opp. party No.1

None                                                                                                        :             For the Opp. party No.2 & 3

Mr A.K Paul, Adv                                                                                    :               For Proforma O.P No.

                                                                                                                     

                     

 

                                                                                                                                     

Date of argument                                                                                                :               17-01-2018 & 25-01-2018

Date of Judgment                                                                                               :               05-03-2018

 

 

 

J U D G M E N T

 

  1. The facts leading to the complaint, in brief, are that the Maximo plus 1950WB BSIII vehicle of the complainant bearing registration No.AS-12AC-0906 which was under hypothecation of the opposite party No.4 Mahindra and Mahindra Financial Services Ltd. and insured with the opposite party No.1, New India Assurance Co.Ltd. met with an accident on 07-06-14 and allegedly suffered total damage.Damage claim was accordingly lodged with necessary documents before the opposite party No.1 and 2 and an amount of Rs.30,000/- as advanced was also shelled out to the opposite party No.3 by the Complainant alegedly  on instruction of the opposite party No.3 to start repairing of the damaged vehicle. But

the opposite party No.,1 repudiated the claim as “No Claim” on ground of invalid driving licence of the driver.Alleging deficiency in service and unfair trade practice on the part of the opposite parties the complainant is thus, before the Forum praying relief of  a sum of Rs.10,00,000/-.

  1. Opposite party No.1 and 4 contested the case by filing written version.Opposite party No.2 and 3 failed to contest the case and the case proceeded ex parte against them.
  2. Whereas the contentions in main, under the written version of the contesting opposite party no.1, in brief, are that Complainant is not a consumer as defined under the Consumer Protection Act and that the repudiation of the claim has been rightly made due to violation of policy conditions for allowing the vehicle to be driven by a person without valid driving licence, the contesting opposite party No.4 on the otherhand had simply highlighted the liabilities of the complainant towards this opposie party as financier and prayed before the Forum for saving interest of the opposite party No.4 in terms of loan agreement.
  3. Complainant tendered his evidence in chief on affidavit proving five nos of exhibits thereunder. Contesting opposite parties declined to examine any witness on its side and preferred to remain content by cross-examining the Complainant

Points for determination

            i)Whether the Complainant is a consumer” as defined u/s 2(1)(d) of the Consumer Protection Act ?

            ii)Whether the opposite party repudiated the claim of the Complainant without any valid ground?

            iii)Whether the Complainant is entitled to get compensation as prayed for ?

            iv)To what relief/reliefs, if any, complainant is entitled to?

                                  DECISION ON THE POINTS WITH DISCUSSION

5.Point No.(i):-Ld. advocate Sri P.C.Sarmah, appearing for the opposite party vehemently contended that the Complainant is not a “Consumer” as he had purchased the vehicle in question for commercial purpose.He nowhere either in the complaint or evidence in chief has ever stated that the vehicle was used by him for earning his livelihood.

6.         Complainant side has submitted nothing to counter the contentions raised by the learned counsel for the opposite party.

            We have meticulously scrutinized all the materials before us.

7.         Evidently, the vehicle in question was used by the Complainant as a Commercial vehicle for carrying goods. The vehicle was insured with the opposite party No.1 under “Commercial Vehicle Package Policy”.

8.         Section 2(1)(d) of the Consumer Protection Act definces who is a “Consumer”. As per definition, the person who buys goods or avails services for any commercial purpose is not a consumer. However “Explanation” to Section 2(1)(d) makes the meaning of Clause “Comemrcial purpose” clear  that “Commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment.

            In view of the above legal position burden is on the Complainant to prove that he had used the vehicle exclusively for the purpose of earning his livelihood by means of self employment.

9.         Complainant herein neither in the complaint nor in the evidence on affidavit made any whisper that the vehicle in question was used by him for the purpose of earning his livelihood by means of self employment. On the otherhand, during cross-examination, he stated that he was a businessman by occupation dealing in Ayurvedic medicines on commission basis. His evidence also shows that the vehicle was used by him for commercial purpose by engaging driver by paying salaries to him. Complainant on the otherhand, failed to state his total income received  as

Commission Agent of Ayurvedic medicine. Since Complainant has failed to discharge his burden, so, we are constrained to decide this Point in the negative.

10.POINT NO.(ii)-            The claim of the Complainant was repudiated by the opposite party vide its leter dated 11th March,2015(Ext-1) on the ground that the driver Altafur Rahman was not authorized to drive Light Goods Vehicle. According to the opposite party he was authorized at the relevant time to drive LMV CAB(Transport) & LMV-NT only vide his driving licence No.AS1219960002660. Complainant failed to produce the driving licence of the driver. It is not disputed before us that the vehicle in question is a light motor vehicle with gross weight of 1815 kg only.

11.        Learned Advocate Mr S.Khan appearing for the Complainant, relying on the judgment of Apex Court passed in ‘Ashok Gangadhar Maratha vs. Oriental Insurnace Co.Ltd’ reported in (1999) _6 Supreme Court Cases 620 submitted that - light motor vehicle “as defined in Clause (21) of Section 2 of the Motor Vehicle Act is applicable to “Light goods vehicle”or “Light transport vehicle”. As such there was no violation of policy condition inasmuch as driver Altafur Rajhman was driving the vehicle with effective driving licence.

12.       We have gone through the above referred judgment and in the light of discussion made by the Hon’ble Apex Court, we have found no reasons to differ with the submission made by the learned advocate for the Complainant.

            In the result, Point No.(ii) is decided in the affirmative.

13.Point No.(iii) &(iv): Inspite of decision of Point No.(ii) decided in favour of the Complainant the later is entitled to nothing in view of decision of Point No.(i) that the Complainant is not a “Consumer”.

                                                                    O R D  E R

            In the result the complaint stands dismissed. No order as to cost.

 

Given under our hands and seal of this Forum this 05th day of March, 2018.

Dictated and corrected by:                                             Pronounced and delivered

( A.Devee)

         President                                                                              (A. DEVEE)

District Consumer D.R Forum,Sonitpur                                      President

         Tezpur                                                                                                 District Consumer Disputes Redressal Forum                                                                                                            Sonitpur,Tezpur

 

We  agree:-             (P.DAS)      (SMT.S.BORA)                                                

                                                                                                                                     Member                    Member

 
 
[JUDGES Smit Aruna Devee]
PRESIDENT
 
[HON'BLE MRS. Smt Sangita Bora]
MEMBER
 
[HON'BLE MR. Sri Pramoth Das]
MEMBER

Consumer Court Lawyer

Best Law Firm for all your Consumer Court related cases.

Bhanu Pratap

Featured Recomended
Highly recommended!
5.0 (615)

Bhanu Pratap

Featured Recomended
Highly recommended!

Experties

Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes

Phone Number

7982270319

Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.