1.       This first appeal has been filed under section 19 of the Act 1986 in challenge to the Order dated 07.01.2019 of the State Commission in complaint no. 06 of 2015 of the State Commission Kerala.

2.       Heard the learned counsel for the parties.

Perused the record including inter alia the impugned Order dated 07.01.2019 and the memorandum of appeal. 

3.       It appears that the complainant which is a partnership firm engaged in the business and possessed several vehicles which were insured with the first opposite party and the insurance policies were issued duly. Later on the vehicle met with an accident.  At the time of accident it processed valid permit and was driven by a qualified driver having licence and badge.  The opposite parties showing deficiency of service did not furnish timely estimate nor settled the claim in time for repairing the vehicle which resulted in the delay of repairs on account of which the complainant suffered heavy losses over and above the payment of interest on the loan availed to purchase the vehicle. Since the loss was mounting day-by-day request to settle the claim was made. As the claim was not settled in timely manner the complaint was filed imputing deficiency in service.  There are many factual details and contours which fill the contents of the complaint but they need not be recapitulated here because the point in issue involved which constitutes the pivotal controversy can be condensed only to this “whether the complainant qualifies himself to be a consumer under the Act or not”. It appears that the complaint has been dismissed by the State Commission by giving the finding that the complainant is not a ‘consumer’. Relevant extract from the impugned Order may be quoted hereinbelow:

Complainant, a registered firm, admittedly, is carrying a business and for its commercial purposes it has purchased the vehicle covered by the complainant, to transport its goods to customers. The insurance cover obtained over the vehicle cannot be treated as one for commercial purpose is the argument of learned counsel for the complainant to contend that so far as the claim for compensation imputing deficiency in service against the insurance company which had indemnified the loss arising out of use of the vehicle insured, but failed to honour it, complainant has the status of a consumer and it is perfectly entitled to prosecute such a complaint before this Commission. Learned counsel has relied on Order dated 3.12.2004 of National Consumer Disputes Redressal Commission, New Delhi in Harsolia Motors V. National Insurance Company Limited to contend that availing of insurance service for the vehicle from insurance company cannot be treated as a commercial purpose.

11. We do not find any merit in the submissions made by the counsel that the service availed by complainant from the insurance company to insure its transport vehicles including the vehicle involved in the case and also the heavy machineries engaged for carrying out its business is not obtained for way commercial purpose. First and foremost it has to be noted that the complainant a registered firm is engaged in a commercial venture of production, supply and distribution of aggregates of various specifications in large scale to the huge construction companies in and around the State of Kerala and for that commercial purpose it has a fleet of 250 vehicles. Admittedly the vehicle involved in the accident, one among them, had been purchased and used for transporting goods to its customers. The vehicle involved is a public career and in terms of the mandate under the Motor Vehicle Act it cannot be used on public road without obtaining insurance policy as stipulated and subject to the conditions covered by the Act and also the policy issued for such vehicle, When a public career vehicle of the complainant engaged for its commercial purpose sustained any damages or loss in an accident is it open to the complainant, a registered firm carrying business, to approach the Commission and claim compensation from the insurer of that vehicle imputing deficiency in service on the premise it is a consumer as under the Act is the question arising for consideration. In Laxmi Engineering Works V. P.S.G. Industrial Institute (AIR 1995 Supreme Court 1428) the apex court analysing the ambit and scope of consumer as defined u/s 2(1)(d) of the Act has considered the impact of ‘Explanation’ added to the definition and also what is meant by commercial purpose as well. Pointing out that a firm, registered or not, can claim the status of a consumer by virtue of the inclusive definition of "person" in Section 20m) of the Act the apex court has observed that explanation added u/s 2(1)(d) of the Act is applicable the members of the firm themselves ply, operate or use of goods purchased by way of self employment to. eke out their livelihood. Similar is the case where the firm obtains service from another for carrying on its business. Where services are obtained by a firm for its commercial purposes and its case does not fall under the explanation added to Section 2(1)(d) of the Act it cannot claim the status of a consumer.

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Moreover the vehicle, public career, was purchased and used for commercial activities the complainant, a registered firm, and it has no case under by the explanation added to Section 2(1)(d) to claim the status of a consumer. We hold that the complainant is not a consumer and its complaint alleging deficiency in service against the insurance company is not entertainable before this Commission. Point found accordingly.

4.       Feeling aggrieved by the afore-said findings the present revision petition has been filed by the complainant.

5.       The learned counsel for the appellant has relied upon the decision given by Apex Court in the case of the National Insurance Co. Ltd. Vs. Harsolia Motors and Others 2023 SCC Online SC 409. Reliance has also been placed on the decisions given by this Commission in CC No. 145 of 2011 M/s Polyplex Corporation Ltd. vs. National Insurance Co. Ltd. & Ors. (Order dated 07.04.2017)  in FA No. 413 of 2019 United Shippers Ltd. Vs. ICICI Lombard General Insurance Co. (Order dated 09.02.2023). Two fronged criticism of the impugned Order has been made by learned counsel, one relates to an alleged anomalous feature of the Order, while the other relates to incorrect appreciation of law settled by Hon’ble Apex Court.   

6.       Learned counsel for the insurance Co., did not raise any question or dispute regarding the applicability of the case of Harsolia Motors and Others (supra) in the present case, though he tried to submit that this Bench has the scope to determine from case to case basis, whether the purpose of service is commercial or not and whether the complainant can be said to be a ‘consumer’ or not in a given case. It will depend, according to the learned counsel for the insurance co., upon the facts of each case.

7.       First of all, the appellant’s counsel has drawn attention of the Bench to an anomalous feature of the impugned Order which shows that though the complaint has been dismissed on the ground of maintainability but the record would show that at the early stage of the proceedings itself, the same issue had cropped up before the State Commission. The objection to the maintainability of the complaint was raised on behalf of the respondents –opposite parties and the arguments from both the sides were heard specifically on that issue. It has been pointed out that after hearing the arguments raised by the respective counsels of both the sides on this fundamental issue the State Commission had proceeded on after making up its mind in favour of the appellant / complainant and had rejected the objection about the maintainability of the complaint.  Submission is that nature of this issue was not trivial or trifling and if the tribunal had heard the arguments on such a vital aspect and had also recorded its finding holding the complaint to be maintainable, it is quite unbecoming of the fora below to now shelve its earlier finding as if it was inconsequential having no import. The State Commission had decided to proceed with the complaint only after recording its positive finding confirming the maintainability of the complaint.  Had it decided otherwise and recorded the finding that the same was not maintainable the proceedings would have terminated then and there.  Contention is that such kind of approach adopted by the fora below flies in the face of the appropriate procedure, if not judicial propriety.  Such an approach according to the Learned counsel corrodes public faith in the sanctified authenticity of the judicial or quasi-judicial institutions who are in charge of administration of justice.  It was also emphasized that after having recorded the positive finding in favour of the maintainability of the petition the subsequent stand taken by the fora below whereby it has changed its mind and dismissed the complaint holding it as not maintainable for the reason of the complainant being not consumer under the Act is highly incongruous. Submission is that subsequent finding arrived at by the State Commission is tantamount to review of its own earlier Order.  It was also submitted that any vital finding or any Order related to a vital aspect of the case like maintainability is of substantial import and consequence and it is wholly immaterial whether such a finding or order was passed in brief or in detail. According to learned counsel whether the Order passed in this regard was crisp or lengthy is a consideration which is wholly irrelevant so far as power to review its own Order is concerned. Submission is that at the relevant point of time the State Commission did not have the power to review its own Order under the Act.   

8.       Another limb of the argument relates to the findings arrived at in the impugned Order whereby  the complainant having been found to be involved in doing business and involved in commercial activities, its status as a ‘consumer’ was doubted and  discountenanced by the State Commission. Learned counsel has drawn the attention of the bench to the apex court decision given in Harsolia Motors & Ors (supra) case as well as to the decision given by this Commission in the case of CC No. 145 of 2011 M/s Polyplex Corporation Ltd. vs. National Insurance Co. Ltd. & Ors. Order dated 07.04.2017 and UNITED SHIPPERS LIMITED (supra) and has taken the bench to the relevant portions of the case law on which he placed reliance. It was further submitted that even though the case of Harsolia Motors and Others (Supra) was referred to in the impugned order but the ratio and obiter of Harsolia Motors & Ors. (supra) case have not been appreciated in right respective and the law laid down by the apex court in this regard has been misapplied.  Submission is that in view of the clear-cut law enunciated in the case of Harsolia Motors and Others (Supra) the complainant very well qualifies to be a consumer under the Act and the commercial activity in which it is involved must not divest its status as a consumer under the Act. Submission is that the facts and circumstances of the case would amply bear out that the insurance cover was aimed to indemnify the loss in case of the peril taking place and the insurance cover had no ‘direct nexus’ to the profit-generating activity of the complainant.   

9.     It may be apt refer to the relevant extracts from the case of Harsolia Motors and Others (supra) and the views expressed therein which reads as follows:

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43. Thus, what is finally culled out is that each case has to be examined on its own facts and circumstances and what is to be examined is whether any activity or transaction is for commercial purpose to generate profits and there cannot be a straight­jacket formula which can be adopted and every case has to be examined on the broad principles which have been laid down by this Court, of which detailed discussion has been made.

44. 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.

45. 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.

46. This Court in United India Insurance Company Limited v. Levis Strauss (India) Private Limited has held as under:

“53. A contract of insurance is and always continues to be one for indemnity of the defined loss, no more no less. In the case of specific risks, such as those arising from loss due to fire, etc. the insured cannot profit and take advantage by double insurance. Long ago, Brett, LJ in Castellain v. Preston [Castellain v. Preston, (1883) 11 QBD 380] said that: (QBD p. 386)

“…..the contract of insurance … is a contract of indemnity … and that this contract means that the assured, in the case of loss … shall be fully indemnified, but shall never be more than fully indemnified.””

                                    (emphasis added)

47.   Thus, it can be concluded that in the instant case hiring of insurance policy is clearly an act for indemnifying a risk of loss/damages and there is no element of profit generation and still what has been expressed by this Court is illustrative; it will always open to be examined on the facts of each case, as to the transaction in reference to which the claim has been raised has any close and direct nexus with profit generating activity.

48.   We do not agree with the submission made on behalf of the appellant that if insurance claims are covered under the Act, 1986, then virtually all insurance matters will come within the purview of the Act, 1986 and this will render the Act, 2015 nugatory. In our view, both these Acts have different scope and ambit and have different remedial mechanism, are in different sphere having no internal co­-relationship.

49.  Consequently, the appeals are without substance and accordingly dismissed. No costs.

10.   It may be apt to mention that Hon’ble Apex Court while giving its decision in Harsolia Motors and Others (supra) had also the occasion to adjudicate upon a number of other Civil Appeals relating different other Complaints, where the complainant was said to have been involved in commercial activities. The objections in this regard in a number of such Appeals were also found to have no substance and were accordingly dismissed in the light of the view that was taken in the Harsolia Motors and Others (supra). The relevant extracts from the Harsolia Motors’ case in that regard may be quoted herein below:

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CIVIL APPEAL NO(S). 5354 OF 2007 – (United India Insurance Company Limited v. M/s. Diwakar Goiram Porkhayat)

     52. The present appeal is directed against the order passed by the National Commission dated 3rd December, 2004 holding that the insurance policy taken by the respondent (commercial unit) in the facts of the case was only to indemnity the loss which the respondent/complainant has suffered and the transaction in reference to which the insurance claim has been repudiated by the appellant, had no direct nexus with the profit generating activity and was a “consumer” as defined under Section 2(1) (d)  of the Act, 1986.

     53. The respondent/complainant (insured) is doing the business of sale and purchase of jewellery in the name and style of “Khazana Jewellers” who obtained a policy of insurance from the appellant for the period 21st October, 1999 to 20th October, 2000 to cover the risk of ornaments in business.

     54. On 24th June, 2000, at about 7.00 a.m. when an employee of the respondent saw that the shutter of the showroom was partly open and that was indicative of the theft and upon inspection, it was found that goods worth Rs.20,55,200/­ were stolen from the showroom.

     55. On the claim being raised by the respondent to indemnify the loss suffered, it was repudiated by the appellant and that was challenged by the respondent by filing a consumer complaint before the State Commission, Ahmedabad, that was dismissed on the premise that the respondent was not a “consumer” within the ambit of Section 2(1) (d) of the Act, 1986 by an order dated 1^st April, 2004.

     56. The respondent challenged the order of dismissal by an appeal before the National Commission taking note of the nature of the transaction and relying upon the order of the Commission in the case of Harsolia Motors dated 3rd December, 2004, the Commission held that the transaction in reference to which the insurance claim has been raised by the respondent has no direct nexus with the profit generating activity and the insurance cover was obtained only to cover the loss, if any, being suffered on account of theft or by natural calamity and the order passed by the National Commission dated 3rd December, 2004 is the subject matter of challenge in appeal before us.

     57. In the light of the judgment passed by us today in Civil Appeal Nos. 5352 ­5353 of 2007 (National Insurance Co. Ltd. v. Harslia Motors), the present appeal is without substance and is accordingly dismissed. No costs.

     58. The complaint is restored on the file of the State Commission and the same be adjudicated on its own merits in accordance with law and may be decided as expeditiously as possible, but in no case later than one year.

     59. Pending application(s), if any, shall stand disposed of.

        The facts of the above Civil Appeal and the view taken by Hon’ble Apex Court are self-speaking and do not need any great elaboration. The complainant in the aforesaid Appeal was doing business of Jewellery and held a policy of insurance to cover the risk of ornaments which were eventually stolen from the showroom. The view of State Commission, holding that the complainant was not a ‘consumer’, was found erroneous by this Commission as it was found that the transaction in reference to which the insurance claim had been raised had no direct nexus with profit generating activity and the insurance cover was obtained only to cover the loss, if any, being suffered on account of theft or by natural calamity. Hon’ble Apex Court affirmed the view of this Commission and dismissed the Appeal against the same.  

11.     It would also be useful to extract and quote the facts and views regarding yet another Civil Appeal which too was dismissed in the light of the view taken in Harsolia Motors and others(supra). The relevant extract reads as follows:

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CIVIL APPEAL NO(S).2821 OF 2012 – National Insurance co. Ltd. v. M/s. Ankur and Another.

     60. The judgment under appeal is dated 15^th December, 2010 passed by the National Commission.

     61. Brief facts of the case are that the respondent is engaged in the business of garments in wholesale, who took a standard fire and peril policy effective for the period from 6 th January, 2006 to 5th January, 2007 for a total sum of Rs.60,00,000/­. There was a fire on 28th December, 2006 resulting in damage to the factory of the respondent. The appellant appointed spot surveyor, M/s Apex Surveyors Pvt. Ltd. for final survey, who submitted its report on 22^nd  December, 2008 assessing the loss to the tune of Rs.53,17,790/­ after deducting salvage amount of Rs.1 lakh and factoring sound stock being saved after the fire at Rs.51,969/­. The appellant claimed that the respondent has failed to submit certain documents to the assessor and, therefore, assessment on such basis could be treated as void. In the meanwhile, SARFAESI proceedings were initiated against the respondent by Canara Bank (secured creditor).

     62. While the claim of the respondent was being processed, the respondent filed a complaint before the State Commission claiming Rs.60,00,000/­ along with interest. At this stage, the appellant filed a preliminary objection that the respondent is not a “consumer” within the definition of Section 2(1)(d) of the Act, 1986. The State Commission at one stage had held that the respondent is engaged in commercial activity and, therefore, is not a consumer. The finding returned by the State Commission was reversed by the National Commission under its order dated 15^th December, 2012 holding that commercial entity availing its services by the insurance company is a “consumer” in reference to the transaction in terms of Section 2(1)(d) of the Act, 1986.

     63. We have assigned detailed reasons in Civil Appeal Nos. (5352­-5353 of 2007 (National Insurance co Ltd. v. Harsolia Motors). In the light of the judgment passed by us today in the said appeal, the present appeal is without substance and is accordingly dismissed. No costs.

        The facts of the above case are also self-speaking and unambiguous and the legal rationale adopted in Harsolia Motors and others (supra) case was found sufficiently determinative to dispel the adverse finding given by State Commission against the complainant that he was not a ‘consumer’ for the reason of being involved in commercial activity. The view taken by this Commission upholding the complainant as a ‘consumer’ was similarly affirmed by Hon’ble Apex Court in this matter also.    

12.   This Bench also takes guidance from the views taken by Apex Court in the following appeals as they have been elucidated therein. Relevant extracts thereof may be quoted herein below:

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CIVIL APPEAL NO(S). 3350 OF 2018 – The Bank of New York Mellon (Formerly The Bank of New York) v. M/s. METCO Export International and Others.

   67. The appellant has filed the present appeal by special leave against the judgment and order dated 6th February, 2018 passed by the National Commission.

    68. Brief facts of the case are that respondent no.1 entered into a transaction with a third party (an Italian buyer of respondent no.1) for supply of five containers of sesame seeds and oil seeds for USD 141,375. In relation to this transaction, the services of Federal Bank Ltd. (respondent no.2) were availed to send the invoice, bills of lading, surveyor’s certificate, bills of exchange, phytosanitary certificate and other related documents (four documents) to the buyer’s banker in Italy. Respondent no.2 engaged the services of the appellant to get export documents delivered to the buyer’s banker in Italy which in turn engaged services of a courier company (respondent no.3). The export documents were lost in transit.

   69. Respondent no.1 filed a consumer complaint before the State Commission against the appellant, respondent no.2 and respondent no.3. The complaint was dismissed on the premise that respondent no.1 is not a consumer as defined under Section 2(1)(d) of the Act, 1986 by an order dated 10^th December, 2013, that became the subject matter of challenge at the instance of respondent no.1 in appeal before the National Commission relying on the judgment in Laxmi Engineering Works (supra) and taking note of the judgment in the case of Harsolia Motors, the National Commission recorded a finding that the dispatch of papers by the bank which were lost in transit and never received by the Italian buyer per se is not related to generate any profit to the respondent as the actual profit will come from the sale of the exported goods which has no nexus to profit generating activity.                                                                                              70. After we have heard counsel for the parties and considering the view expressed by this Court in Civil Appeal Nos.5352­ 5353 of 2007 (National Insurance co. Ltd. v. Harsolia Motors), the present appeal is without substance and is accordingly dismissed. No costs.                                                                                      

13.   Now in this context it may also be useful to quote the relevant extract from the decision given by this Commission in the case of Polyplex Corporation Ltd. (supra) which reads as follows: 

7.      The first question which arises for consideration is as to whether the complainant can be said to be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act or not.  It has been held by this Commission in Harsolia Motors Vs. National Insurance Co. Ltd. I(2005) CPJ 27 (NC) decided on 03.12.2004 that since an insurance policy is taken for reimbursement or for indemnity for the loss which may suffer on account of insured perils, the services of the insurer cannot be said to have been hired or availed for a commercial purpose and therefore, this Commission does possess the requisite jurisdiction to entertain a consumer complaint wherever a defect or deficiency in the services rendered by an insurer is made out.

The learned counsel for the OP states that as far as the loss of profit is concerned, the claim would not be covered by the decision of this Commission in Harsolia Motors (supra).  I however, find no merit in this contention.  In Harsolia Motors (supra), this Commission upheld the plea that the insurance policy is availed for indemnifying the loss which the insured may suffer and therefore, the services of the insurer are availed for protection and not for making profit.  It is immaterial whether the loss is on account of destruction or damage of a product or it is on account of the insured being deprived of the profit, which it would in the normal course have made, by use of the insured product.  So long as the reimbursement on account of loss of profit is one of the products of the insurance policy, it remains covered by the decision in Harsolia Motors (supra).  Therefore, I find no merit in the contention that the insurance policy to the extent it pertains to reimbursement on account of the loss of profit, cannot be the subject matter of a consumer complaint.

14.   The Bench does not see much purpose in multiplying the citations of the case law in this regard which shall be only in the nature of repetition. Suffice it to say that the law laid down in Harsolia Motors and others (supra) case has been consistently followed by this Commission. Just as a parting reference, the views taken by this Commission in the case of United Shippers Limited vs. ICICI Lombard General Insurance Co. Ltd. in FA No. 413 of 2019 (Order dated 09.02.2023) may be recapitulated in brief which read as follows:

5. We may observe that the exposition in the Harsolia Motors Vs. National Insurance Co. Ltd. I (2005) CPJ 27 (NC)  inter alia postulates that ‘Further, hiring of services of the Insurance Company by taking insurance policy by Complainants who are carrying on commercial activities cannot be held to be a commercial purpose.   The policy is taken for reimbursement  or for indemnity for the loss which may suffer due to various perils,  There is no question of trading or carrying on commerce in insurance policies by the insured. May be that insurance coverage is taken for commercial activity carried out by the insured’ (para 12). The same has been cited by this Commission in the Polyplex Corporation Ltd. Vs. National Insurance Co. Ltd. & Ors., referred to by learned counsel for the complainant co. in his arguments, while further clarifying that ‘the services of the insurer are availed for protection and not for making profit’.

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As such, whether, for a particular purpose, a person, individual or juridical, including a company, is a ‘consumer’, has to be determined by examining the facts and specificities of the case, seeing whether the transaction has a ‘close and direct nexus’ with a ‘profit-generating activity’ and whether the ‘dominant purpose’ behind availing the service was linked to any ‘commercial activity’.

7. In the case at hand here, the purpose of the insurance taken by the complainant co. was essentially indemnification against perils, nothing per se to do closely and directly with its profit-generating activities, nor was profit-generation the dominant purpose, the insurance was for protection and not for profit, and as such the complainant co. straightaway falls within the meaning of ‘consumer’ in accordance with Section 2(1)(d)(ii) of the Act 1986, without necessitating further detailed elucidation.

15.   This Bench finds it fit to recapitulate some pithy and beckoning observations made by Hon’ble Apex Court in Harsolia Motors and others (supra) case which read as under:

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   37. Thus, what is culled out is that there is no such exclusion from the definition of the term “consumer” either to a commercial enterprise or to a person who is covered under the expression “person” defined in Section 2(1) (m) of the Act, 1986 merely because it is a commercial enterprise. To the contrary, a firm whether registered or not is a person who can always invoke the jurisdiction of the Act, 1986 provided it falls within the scope and ambit of the expression “consumer” as defined under Section 2(1) (d) of the Act, 1986.

   38. Applying the above principles to the present case, what needs to be determined is whether the insurance service has a close and direct nexus with the profit generating activity and whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. The fact that the insured is a commercial enterprise is unrelated to the determination of whether the insurance policy shall be counted as a commercial purpose within the purview of Section 2(1) (d) of the Act.

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     40. Applying the aforesaid test, two things are culled out; (i) whether the goods are purchased for resale or for commercial purpose; or (ii) whether the services are availed for any commercial purpose. The two-­fold classification is commercial purpose and non-­commercial purpose. If the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the Act, 1986. For example, if a manufacturer who is producing product A, for such production he may be required to purchase articles which may be raw material, then purchase of such articles would be for commercial purpose. As against this, if the same manufacturer purchases a refrigerator, television or air conditioner for his use at his residence or even for his office has no direct or indirect nexus to generate profits, it cannot be held to be for commercial purpose and for afore-­stated reason he is qualified to approach the Consumer Forum under the Act, 1986.

16.     After going through the entire facts and circumstances of the case and after going through the views expressed by Hon’ble Apex Court the Bench feels constrained to observe that the findings recorded by the fora below holding the complainant to be not ‘consumer’ under the Act is legally fallacious and, therefore, untenable. Had the views of the Hon’ble Apex Court as have been referred to and quoted hereinbefore been considered in right perspective the fora below would not have dismissed the complaint as not maintainable or held the complainant to be not a ‘consumer’ under the Act.  The Bench is satisfied that in the facts and circumstances of the case the insurance policy was not having a direct nexus with the profit-generating activity of the complainant / appellant and was intended and aimed to indemnify and cover the losses in case the event of loss or peril occurred.

17.  The transaction in question with the insurance co. relates essentially to providing a service to the consumer which was meant to compensate and which aims to protect or to indemnify the loss in case such a peril or mis-happening actualises. In the facts and circumstances of the case, this Bench sees no direct nexus of the insurance cover with the mainstream profit generating activity of the company. Policy cover was a contract of indemnification for a particular risk or peril, and was not to do something directly to earn profit out of such act. The submissions which sometimes are made in order to suggest that there was a collateral relationship or an ancillary connection between  the transaction in question and the profit-generating activity is not a very tenable submission.  The nexus between the transaction in question and the profit-generation activity has to be direct and not peripheral or collateral. The expression used by Hon’ble Apex Court in this context has been ‘direct nexus’ which is of substantial import and cannot be ignored or soft pedalled.   

18.     Keeping in perspective the afore-said view of the matter this Bench does not feel the need to enter into the question of correctness of the course adopted by the State Commission whereby it reopened the question of maintainability of complaint after having decided it in favour of the complainant earlier as a matter of preliminary issue. But certainly the least which may be said in this regard is that such an approach cannot be upheld or be called a very appropriate course and sounds anomalous and incongruous. 

19.     In the facts and circumstances of the present case we find that the transaction in question was not for ‘commercial purpose’ and the State Commission has erred in dismissing the complaint on this ground, holding that the complainant was not a consumer under the Act.  

20.     Sequel to the discussion above we set aside the impugned Order dated 07.01.2019  of the State Commission and remand the case back to the State Commission with the observation that in the facts and circumstances of the present case (alone) the complainant shall be treated as ‘consumer’ within the meaning of definition of Section 2(1)(d)(ii) of the Act 1986. The State Commission is requested to decide the complaint on merit as per the law. The parties are directed to appear before the State Commission on 03.10.2023.

21.     The Registry is requested to send a copy each of this Order to all parties in the appeal and to their learned counsel. The stenographer is requested to upload this Order on the website of this Commission immediately.