Haryana

StateCommission

A/848/2015

AMIN KHAN - Complainant(s)

Versus

NEW INDIA ASSURANCE CO.LTD. - Opp.Party(s)

TANMOY GUPTA

09 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      848 of 2015

Date of Institution:      07.10.2015

Date of Decision :       09.12.2015

 

Amin Khan s/o Sh. Mohd.Yasin, Resident of Village Sarai Khatela, Tehsil Hodal, District Palwal.

                                      Appellant/Complainant

Versus

1.      M/s New India Assurance Company Limited through its Branch Manager, Branch Office, near Heeralal-Pannalal Petrol Pump, Old G.T. Road, Palwal.

2.      M/s The New India Assurance Company Limited through its Divisional Manager, Divisional Office, Badshaha Khan Chowk, N.I.T. Faridabad.

                                      Respondents/Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member             

 

Present:               Shri Tanmoy Gupta, Advocate for appellant.

                             Shri Nitin Gupta, Advocate for respondents.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

   The complainant is in appeal against the order dated July 27^th, 2015, passed by District Consumer Disputes Redressal Forum, Palwal (for short ‘the District Forum’) whereby complaint filed by him was dismissed.    

2.         Amin Khan-Complainant/appellant, got his truck bearing registration No.HR-73-3324 insured with The New India Assurance Company Limited (for short ‘the Insurance Company’)-Opposite Parties, for the period from March 17^th, 2012 to March 16^th, 2013 vide Insurance Policy Exhibit C-14. The Insured Declared Value of the truck was Rs.22,18,250/-. On January 29^th, 2013, the truck met with an accident in the area of Kavi Nagar, Ghaziabad and was damaged. First Information Report No.85 (Exhibit C-1) under Section 279,338,427 of the Indian Penal Code, was lodged in Police Station Kavi Nagar, District Ghaziabad. The Insurance Company was informed. Shri Jeewan Aggarwal, Surveyor of the Insurance Company inspected the truck and assessed the loss to the extent of Rs.1,65,000/- but as per complainant he  incurred Rs.2,25,000/- on the repair of the truck. The complainant filed claim with the Insurance Company but the same was repudiated vide letter dated November 29^th, 2013 (Exhibit C-3) stating as under:-

“Your above mentioned Own Damage claim reported on 29.01.2013. Accordingly, Mr. Jeevan Agarwal, Surveyor deputed for assess the loss. He submitted his report on 25.04.2013. After going through the surveyor report and document supplied by you we find that the GR No.1828 dated 28.01.2013 of Ganga Transport Company which was supplied by you found FORGED after verification.

In this condition we are unable to settle this claim and “repudiating” the same”.

3.      Aggrieved of the repudiation of his claim, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986.

4.      The opposite parties contested the complaint by filing reply wherein they reiterated the fact stated in the repudiation letter and prayed for dismissal of the complaint.

5.      Vide impugned, the District Forum dismissed the complaint observing as under:-

“Keeping in view the above mentioned facts on file, evidence adduced by both the parties and hearing the arguments of both the parties this Forum is of the considered view that vehicle i.e. truck bearing No.HR-73-3324 is/was being used for commercial purposes and at the time of accident the truck in question was loaded with consignment of rice from Tarawadi (Haryana) to Ghaziabad (UP) and the truck was transporting rice loaded from Ganga Transport Company. The complaint does not find mention even a single word that the complainant was using the vehicle in question for his own livelihood. So it is crystal clear that the vehicle was used for Commercial Purposes and RC and Insurance Policy of the truck in question also clearly reflects the nature and purpose for which the truck in question was purchased, used and which does not fall within the purview of consumer under Section 2(d)(i) of Consumer Protection Act. Hence the complaint of the complainant is dismissed with no order as to costs. However, in the interest of justice the party is at liberty to seek relief from any other competent court of law and the time spent by him in pursuing his complaint in the present Forum will be excluded from the limitation clause as per Indian Limitation Act.”

6.      The question for consideration is as to whether the complainant falls within the purview of ‘consumer’ as defined in Section 2(1)(d) of Consumer Protection Act or not?

7.      Section 2 (1) (d) of the Act, reads as under;

(d)    Consumer” means any person who,

1. 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 obtains 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 and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

                          Explanation  For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.

8.      Hon’ble National Commission  in M/s. Hansolia Motors Vs. National Insurance Co. Ltd. – 1986 – 2005 Consumer 9756 (NS) held  that when the goods purchased or services hired are not intended to generate profit, it would not be a commercial purpose.  In the instant case in fact the complainant had availed the services of the Insurance Company only for the safety of the truck which was purchased by him for earning livelihood.  Since the said services had no nexus with the profit making activity by the Insurance Company/Opposite Parties, the services engaged by the complainant/appellant are within the purview of the Consumer Protection Act. Thus, it is held that the Insurance Policy purchased by the complainant was not for commercial purpose but for the safety of the truck which being used by him for earning his livelihood. So, the complainant falls under the definition of “consumer”.

9.      In view of the above, the appeal is accepted and the impugned order is set aside. The case is remitted to the District Forum, Palwal, to decide it expeditiously preferably within a period of three months, which shall be from the date of first appearance of the parties before the District Forum.   

10.     The parties are directed to appear before the District Forum, Kaithal on January 22^nd, 2016.

11.      Record of the District Forum alongwith a copy of this order be sent forthwith.

 

 

Announced 09.12.2015

Diwan Singh Chauhan Member

B.M. Bedi Judicial Member

Nawab Singh President

CL