Order No. 8  date: 13-03-2018

Sri Shyamal Gupta, Member

Record is put up today for passing order in respect of IA/60/2017, whereby the OP No. 1 has challenged maintainability of the case.

It is contended by the OP No. 1 that Complainant is a Private Limited Company incorporated under the Companies Act, 1956.  It is also contended that the subject car was delivered on 10-09-2009 and the same was used for commercial purpose.  That the subject car was not used for personal use is evident from the petition of complaint itself.  It is stated therein that the car was used by one Mr. Srikanta Shah.  No evidence is advanced to suggest that the deceased was a Director of the Complainant Company.  Further case of the OP No. 1 is that, the present complaint is barred u/s 175 of the Motor Vehicles Act, 1988 which explicitly enunciates that Consumer Courts cannot exercise jurisdiction in cases involving death or physical harm as a result of usage of any automobile and further that, any question of compensation regarding the same must be dealt by the Claims Tribunal under the Motor Vehicles Act, 1988 and not in Consumer Courts.  It is lastly stated that, insurance claim arising out of the alleged accident has already been paid by the Insurance Company and therefore, the Complainant cannot claim any further amount.  

By submitting a WO, it is submitted by the Complainant that the subject car was purchased for the use of its Director.  It is also stated that Srikanta Shah, since deceased, happened to be the most eminent Director of the Complainant Company.  According to the Complainant, the instant complaint has been filed for the deficiency in service and unfair trade practice on the part of the OP Nos. 1&2.  It is lastly stated that the present complaint is not at all barred by limitation as the cause of action arose on 08-05-2015, when the OP repudiated its claim. 

We have heard the submission made by the Ld. Advocates of both sides. 

Maintainability of the complaint case has been firstly disputed on the ground that the Complainant is a Private Limited Company and the Complainant did not file any documentary proof to establish that the deceased person, Srikanta Shah was the Director of the Company.

Be it mentioned here that the Complainant, in its petition of complaint stated that it purchased the subject car keeping in mind the luxury and safety of the Director of the Complainant Company and further that, Srikanta Shah happened to be a full-time Director of the Complainant Company.  In order to prove the veracity of its claim, the Complainant placed on record the copy of Form-32, wherefrom it transpires that Srikanta Shah was appointed as a Director of the Complainant Company on 01-09-2010.

Taking due cognizance of the said documents, we have no qualms holding that Srikanta Shah, since deceased, was indeed a Director of the Complainant Company. 

Now, let us dwell on the fact as to whether the said car was purchase for fulfilling any commercial purpose, as alleged.

It is naïve to believe that the said car was not purchased for the purpose of re-selling the same and thereby generate any profit for the company.  Rather, as it seems, the said car was purchased for the exclusive use of the Director of the Complainant  Company.  Since the car was used for travelling purpose only, we do not endorse the notion of the OP No. 1 that the Complainant purchased the car for commercial purpose.

According to Law Insider, Commercial Purposes means the sale, lease, license, or other transfer of the Material or Modifications to a for-profit organization. Commercial Purposes shall also include uses of the Material or Modifications by any organization, including Recipient, to perform contract research, to screen compound libraries, to produce or manufacture products for general sale, or to conduct research activities that result in any sale, lease, license, or transfer of the Material or Modifications to a for-profit organization.

Certainly usage of car by the Director of the Company does not fit into the aforesaid definition.  Accordingly, we find no merit into the contention of the OP No. 1 in this regard.

The OP No. 1 also contended that the complaint is hit by limitation.  However, on due consideration of the material on record, we find no merit in such contention.  May be the car was purchased in the year 2009; however, insofar as the cause of action firstly developed over the accident took place on 03-12-2014 and then continued till 08-05-2015, when the OP No. 2 repudiated the claim of the Complainant, the complaint being filed on 04-05-2017, it is filed within the statutory period of limitation.

It is also argued by the OP No. 1 that Sec. 175 of the Motor Vehicles Act ousts the jurisdiction of Consumer Forum to adjudicate any question relating to any claim for compensation. Here too, we find no merit in the contention of the OP No. 1.

For better illustration, we append below the contents of Sec. 175 of the Motor Vehicles Act, 1988.

“175. Bar on jurisdiction of Civil Courts.—Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court”.

A plain reading of the aforesaid Section of the Motor Vehicles Act leaves nothing to imagination that the said Section only bars the jurisdiction of Civil Court.  Since Consumer Forum is not a Civil Court per se, the aforesaid statutory bar is not applicable for Consumer Fora.

The instant claim appears to have been filed alleging manufacturing defect in respect of the subject vehicle.  Therefore, it is totally irrelevant here as to whether or not the Insurance Company settled the accidental claim.

Accordingly, none of the points raised by the OP No. 1 has got any merit worth positive consideration.  We are, thus, constrained to reject the petition moved by the OP No. 1 challenging maintainability of the complaint.

IA/60/2017, accordingly, stands disposed of. Fix 24-05-2018 for filing affidavit on evidence by the Complainant.  Since the statutory period for filing WV is already over, the case shall run ex parte against the OP No. 2.