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
- 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/-.
- 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.
- 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.
- 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