Haryana

Karnal

27/2012

Lally Automobiles - Complainant(s)

Versus

Oriental Insurance Company - Opp.Party(s)

N.S. Cheema

11 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No. 27 of 2012

                                                             Date of instt.:12.01.2012

                                                              Date of decision:11.01.2017

 

M/s Lally Automobiles, 117/8 K.M. Milestone, G.T. Road, Karnal through its Authorised Signatory Mr. Munish Madan, Manager Service, Karnal Branch, Karnal.

 

                                                                   ……..Complainant.

                                      Vs.

The Oriental Insurance Company, Mohali (Punjab) through its Divisional Manager, Karnal.

                                                                        ………… Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

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

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. J.S.Chauhan Advocate for the complainant.

                    Sh.Virender Adhlakha Advocate for the Opposite party.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that the complainant firm is doing the business of sale and service of Honda City cars at its showroom known as Courtesy Honda. The complainant firm got insured the Honda City Car bearing temporary no.HR05TC-0116 with opposite party, vide cover note no.CHd-d 5241 and policy no.231400/31/2011 dated 18.4.2010. The said vehicle met with an accident near village Bhanswan and First Information Report no.177 dated 19.08.2010 was registered regarding the said accident in Police Station Barauda. The employee sitting in the vehicle suffered injuries and the vehicle was badly damaged in the said accident. Intimation was sent to opposite party. Surveyor/Investigator of the opposite party inspected the vehicle and submitted survey report. The vehicle was got repaired from Courtesy Honda Karnal and an amount of Rs.8,85,593/- was spent on the repair. Claim was lodged with opposite party and all the relevant documents were submitted, but despite repeated requests, the opposite party did not settle the claim. Ultimately, legal notice dated 26.7.2011 was got served but the same also did not yield any result. Thereafter, reminder dated 14.9.2011 was also issued, but the opposite party neither replied to the same nor had taken necessary action. In this way, there was deficiency in service and unfair trade practice on the part of the opposite party, due to which complainant suffered mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to the opposite party, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable in the present form; that this forum has got no territorial jurisdiction to entertain and try the complaint; that the complainant has not approached this forum with clean hands; that the complaint has not been filed duly authorized person; that the complainant is estopped from filing the complaint by its own acts and conduct; that the complainant has no cause of action to file the complaint; that the vehicle was used for commercial purpose, which is not covered under the provisions of Consumer Protection Act and that the complaint is false, frivolous and vexatious and the same is an abuse of process of law.

                    On merits, it has been submitted that Mohali office of opposite party had given the Motor-Trade Road- Risk Class F package policy to the complainant for the period of 18.04.2010 to 17.04.2011 covering 5 Trade Certificates for total amount of Rs.48,43,567/- including trade certificate no.0116 SI  for Rs.7,77,136/- in addition to basic OD cover. The opposite party also gave risk basic own damage beyond Rs.25000/-. If the limit in respect of the loss or damage was to exceed Rs.25,000/-, own damage premium was to be increased by an addition premium for each transfer certificate at the rate of 1% on such excess value. Therefore, even if, the claim of the complainant is within four corners of law, then also it is entitled to an amount of Rs.1,51,176/- only. It has further been pleaded that the accident took place on 14.8.2010, but the opposite party was intimated, vide letter dated 15.9.2010, which was received by opposite party on 27.9.2010. The complainant with ulterior motive got repaired the vehicle prior to intimation to opposite party. It has further been averred that the complainant purchased the policy from Mohali Branch and the alleged accident took place within the area of Police Station Barauda District Sonepat. Therefore, this forum has got territorial jurisdiction to entertain and decide the present complaint. Moreover, the Honda City vehicle was being used by the complainant for commercial purpose, therefore, the complaint is liable to be dismissed on this ground also. Factum of receiving legal notice has not been disputed. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, the affidavit of Hem Raj Singh Senior Manager Ex.P1 and documents Ex.P2 to Ex.P9 have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of R.S.,Bahlan Sr. Divisional Manager Ex.OPW1/A and documents Ex.OP1 to Ex.OP6  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.                 There is no dispute between the parties that the Honda City Car bearing temporary no.HR05TC-0116 was insured by the opposite party for the period of 18.4.2010 to 17.4.2011. The said vehicle met with an accident on 16.8.2010 and First Information Report no.177 dated 19.8.2010 was registered in Police Station Barauda, regarding the said accident. The complainant lodged claim with the opposite party. Surveyor/ Loss Assessor was appointed by the opposite party, who inspected the vehicle and submitted report. However, the claim was not paid by the opposite party to the complainant.

7.                Learned counsel for the opposite party put a great thrust upon the contention that the complainant was not a consumer within the definition of consumer as provided under section 2(1)(d) of the Consumer Protection Act as the insured vehicle was being used for commercial purpose, therefore, the complaint is not maintainable. The next contention raised by the learned counsel for the opposite party is that the complainant got insured his vehicle from Mohali office of the opposite party and the accident had taken place within the area of Police Station Barauda District Sonepat and as such no cause of action accrued within the territorial jurisdiction of Karnal, therefore, this forum has got no jurisdiction to entertain and decide the complaint. Learned counsel for the opposite party further argued that temporary registration certificate of the vehicle was valid only for 30 days from the date of purchase and the complainant did not get registered the vehicle with registration authority within the stipulated period. Therefore, plying of the vehicle on the road after 30 days of issuance of temporary registration certificate was not only an offence punishable under section 192 of Motor Vehicles Act, but also a fundamental breach of policy contract, therefore the opposite party is not liable to pay any compensation to the complainant.

8.                To wriggle out the aforesaid contentions learned counsel for the complainant vehemently argued that the opposite party had issued Motor-Trade Road- Risk Class F package policy. Thus, it was clear that the insured vehicle was to be used for demo purposes for running trade business of the complainant. Therefore, it does not lie in the mouth of the opposite party at this stage to raise dispute that the vehicle was used for commercial purpose and the complainant was not consumer as per provisions of the Consumer Protection Act. It has further been contended that though the vehicle was insured by the Divisional Office of the opposite party at Mohali, yet the same was insured for the business of the complainant at Karnal, therefore, this forum has territorial jurisdiction to entertain and decide the present complaint. It has further been canvassed that the trade certificate was issued to the complainant by Registration Authority Karnal from time to time, therefore, the complainant could ply the vehicle on the road without getting the vehicle permanently registered. It has lastly been argued that the accident had taken place during subsistence of the policy, therefore, the opposite party was liable to pay compensation to the complainant, but with malafide intention the claim was not settled.

9.                Before adverting to deal with other aspects of the case, it is necessary to decide whether the complainant is consumer as per definition of the “Consumer” provided under section 2(1)(d) of the Consumer Protection Act, because the other aspects are required to be dealt with only in case the complainant is established to be a consumer, otherwise, the complaint before this forum is not maintainable.

10.              The complainant in para no.2 of the complaint specifically pleaded that it is doing the business of sale and service of Honda City car at showroom known as Courtesy Honda. The car bearing temporary no.HR05TC-0116 was insured with opposite party for the period of 18.4.2010 to 17.04.2011. The opposite party has submitted that the car was insured under Motor-Trade Road- Risk Class F package policy under trade certificate no.0116SI. During the course of arguments, it has transpired that the insured car was being used for demo purposes and not for personal use. Thus, is emphatically clear that the car was being used for business purposes and not for livelihood of the complainant by means of self-employment. As per definition of consumer under section 2(1)(d) any person, who hires or avails of the services for commercial purposes does not fall within the ambit of definition of consumer. However, there is explanation under section 2(1)(d) that commercial purpose does not include use by a person of the goods bought and use by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. The case of the complainant is not covered under the said explanation. From the facts and circumstances, it is established that the car was used by t he complainant as demo car for the purpose of its business. Thus, it is clear that the car was used  by the complainant for commercial purpose and the services of the opposite party were hired i.e. the vehicle was got insured for commercial purpose. Consequently, the complainant is not established to be a consumer, therefore, his complaint is not maintainable under the provisions of Consumer Protection Act.

11.              As the complainant is not proved to be a consumer and his complaint is not maintainable, there is no need to deal other aspects of the case.

12.              As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. However, the complainant is left at liberty to approach the competent court/Forum for redressal of its grievance, as per provisions of law. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 11.01.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member