Date of filing:  22.02.2022                                                         Date of Disposal: 21.04.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 21^st DAY OF APRIL, 2023

CONSUMER COMPLAINT NO.46/2022

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

BNH Infra Projects (India)

Private Limited, 4^th Floor,

Nanjappa Mansion, #29,

KH Road, Shanthinagar,

Represented by its Managing Director.

(Rep by Sri. Rohan Tigadi, Advocate)

Royal Sundaram General Insurance

Company Limited, Vishranti

Melaram Towers, No.2/319,

Rajiv Gandhi Salai (OMR),

Karapakkam, Chennai-600 097.

Also at:

No.30, 3^rd Floor, JNR City Centre,

Raja Ram Mohan Roy Road,

Opp. Kanteerava Stadium, Sampangi

Rama Nagara, Bangalore,

(Sri.Prashant.T.Pandit, Advocate)

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

01.    The complainant has filed this complaint Under Section 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party to pay a sum of Rs.9,19,907/- with interest at the rate of 18% per annum and such other relief as this Commission deems fit in the circumstances of the case.

02.    It is not in dispute that, the complainant is a company owned the vehicle TATA Tipper vehicle in No. KA-01-AL-7851 and had purchased the same on 17.03.2020.  Further it is not in dispute that, the complainant had obtained insurance for the said vehicle from the opposite party and was in force from 07.03.2021 to 06.03.2022.  Further it is not in dispute that, on 25.04.2021 the said vehicle met with an accident and had sustained damage.  Further it is not in dispute that, the complainant got repaired the vehicle through an authorised service station Shree Ambica Auto Sales & Service, Commercial vehicle dealer.  Further it is not in dispute that the opposite party had repudiated the claim of the complainant.

03.    It is the further case of the complainant that, the complainant had incurred expenses of Rs.8,05,307/- towards repair of the vehicle and had paid the premium of Rs.87,699.58 for availing the risk cover offered by the opposite party.  Further on 11.08.2021 opposite party had rejected the claim of the complainant on the ground that, one Krishna Kumar was driving the vehicle at the time of accident and he was not holding a valid driving license.  It is further contended by the complainant that, one Raman Kumar was the driver of the vehicle at the time of accident and he was holding driving license at the time of accident.  Further since the opposite party did not grant the claim, the complainant was unable to use the company vehicle for a period from 25.04.2021 to 02.11.2021 hence has hired the vehicle for day-to-day use.  Thereby opposite party has to pay a sum of Rs.1,14,600/- towards idling charges incurred.  Hence the complaint came to be filed.

04.    It is the further contention of the opposite party that, at the time of accident the driver of the vehicle was not holding effective driving license.  Hence the complainant had supressed the material fact in the claim.  Further the complainant is engaged in the business for commercial purpose and the vehicle was purchased to use for company purpose.  Hence there is no deficiency of service on the part of opposite party and sought to dismiss the complaint.

05.    To prove the case, the authorised representative of complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P.1 to EX.P.12 documents.  The Assistant Manager of opposite party (RW.1) has filed affidavit in the form of his evidence in chief and got marked EX.R.1 and EX.R.5 documents.

06     Counsel for the complainant has filed written arguments with citations and synopsis of arguments.  Counsel for opposite party has filed written arguments and has produced citations.

07.    The points that would arise for consideration are as under:-

  (1) Whether there is deficiency of service on the part of the opposite party?

  (2) Whether the complainant is entitle for the 

      relief sought ?

      (3) What order ?

08.    Our findings on the aforesaid points are as follows:-

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

09.    POINT NO.1:-  The complainant (PW.1) and opposite party (RW.1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. 

10.    It is the contention of the learned counsel for the opposite party that, since the complainant is a company and it has purchased the commercial vehicle for the use of the company, the complainant cannot be a consumer within the meaning of Section 2(7) of the Consumer Protection Act.  Further the complainant is engaged in the business for commercial purpose and the vehicle was purchased for company use.  Contrary to that, it is the contention of the learned counsel for the complainant that, no doubt the vehicle was purchased in the name of firm and the firm has used the vehicle for hire, but the service of opposite party in the form of taking the coverage of risk does not come within the purview of commercial transaction and there is no nexus with regard to the earning of profit.

11.    On perusal of EX.R.3 the vehicle policy it appears that, the policy was a commercial vehicle package policy.  We feel the service offered by opposite party with regard to the coverage of risk does not amount to commercial in nature.  Further Section 2(7) of Consumer Protection Act, 2019 contemplates that, Consumer means any person.  Section 2(31) of Consumer Protection Act, 2019 says that, person includes a Firm whether registered or not.  In the case on hand since the complainant is a firm it will be a complainant within the meaning of section 2(31) of Consumer Protection Act, 2019. 

12.    Further in support of the contention that the complainant can be a consumer and the service agreed by the opposite party cannot be a commercial purpose, the counsel for the complainant relies the judgment reported in (2020) 2 Supreme Court Cases 265, Lilavati Kirtilal Mehta medical Trust Vs. Unique Shanti Developers & Others.  The facts in the said case is that, the complainant Trust entered in to the agreement to buy 29 flats constructed by the opposite party builder.  The complaint was filed with an allegation of poor quality construction and thereby there was deficiency in service.  The flats purchased was to accommodate the nurses employed by the hospital without there being a rent to be paid.  In the circumstances, the Hon’ble Apex Court has held that, to determine whether an activity is for a commercial purpose it is not necessary that, in every case a negative test has to be adapted wherein any activity that does not form within the mode of earning livelihood then necessarily be for a commercial purpose.   Further it is observed that, the purchase of the goods or services should have a close and direct nexus with a profit generating activity.  Further provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to facilitate better medical case is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it.  Hence it is held that, the complainant was a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 for the transaction held under consideration.

13.    Further counsel has relied the judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, reported in 2004 SCC OnLine NCDRC 11, Harsolia Motors Vs. National Insurance Company Limited.  In the said case the question was whether insurance policy taken by commercial units could be held to be hiring of services for commercial purpose and thereby excluded from the purview of the Consumer Protection Act, 1986.  It is held that, an insured who takes the insurance also cannot treat or carry on any commercial activity with regard to the insurance policy taken by him.  Under section 3 of the Insurance Act 1938, no person is permitted to carry on business of insurance unless he obtains a certificate of registration from the Insurance Recovery and Development Authority.  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.

14.    In the case on hand, the complainant had obtained the service of opposite party in the form of risk coverage for the consideration paid.  Hence in that service there is no direct nexus and the complainant was not intended to generate the profit.  Hence in the light of the principles laid down in the judgments cited and the facts involved in the case, we feel the complainant is a consumer and the service offered cannot be for a commercial purpose.

15.    The other contention raised by the learned counsel for the opposite party is that, at the time of accident one Mr. Krishna Kumar the cleaner of the vehicle was driving the vehicle and he was not holding effective driving license.  Hence the complainant has misrepresented the facts of the accident.  Admittedly as contended by the learned counsel for the opposite party, the opposite party is not liable to reimburse the claim in case of insured has violated any of the conditions of the policy.  It is the contention of the learned counsel for the complainant that, one Mr. Raman Kumar was the driver at the time of accident and Mr. Krishna Kumar was only a cleaner.  The claim of the complainant was repudiated as per EX.R.5 dated: 11.08.2021 on the ground that, at the time of incident vehicle was driven by one Krishna Kumar and he does not had valid driving license to drive the vehicle.  In support of the contention counsel for opposite party relies EX.P.4 the claim form dated: 21.05.2021 and the investigation report prepared by opposite party.  In which Raman Kumar has stated that, while going on the road due to high beam of the opposite party’s vehicle they could not see the road suddenly they took a turn and the vehicle was toppled.  Further he came out from the driver seat and helped Krishna Kumar who came out from the vehicle by holding his hand. 

16.    Further one Arpitha the business development officer of complainant had given a statement before opposite party that, Raman Kumar has been a driver to the vehicles in their company and Krishna Kumar does work as a cleaner and on the faithful day Raman Kumar as the driver accompanied by the Krishna Kumar is cleaner took the subject vehicle.  None of the parties have filed any document with regard to the criminal case registered and the report with regard to the investigation if any made by the police in the motor vehicle accident case.  Apart from that, the investigation officer of opposite party had given an information that, the subject vehicle cabin was only damaged due to over-turn of its LHS and the co-driver cannot escape without sustaining severe injuries in the accident and Krishna Kumar (alleged co-driver) is not correlated be seated on the co-driver seat at the time of said accident and no major injury was observed.  Hence we feel the documents produced by the opposite party is not sufficient to disbelieve the contention of the complainant that, one Raman Kumar was the driver at the time of accident.  Hence there is no merit in the contention of opposite party.

17.    The accident took place on 25.04.2021 and the claim was made on 21.05.2021.  We feel the reason given by the opposite party in repudiating the claim as per EX.R.5 that, the complainant has misleaded with regard to the driver as Raman Kumar instead of Krishna Kumar cannot be accepted for the reasons stated above.  Hence in not making reimbursement as assured in the policy, amounts to deficiency in service.  Accordingly we answer this point in affirmative.

18.    POINT NO.2:-     The complainant claimed a sum of Rs.8,05,507/- towards expenses incurred pertaining to the repair of the company’s vehicle.  Apart from the oral evidence to prove the said fact the complainant has produced EX.P.4 the photographs EX.P.5 invoice dated: 25.04.2021 for a sum of Rs.9,000/- pertaining to Laxmi Crain Service, EX.P.9 is the tax invoice for a sum of Rs.5,23,707/- and for a sum of Rs.2,81,600/-.  EX.P.10 is a receipt for a sum of Rs.5,00,000/- and for a sum of Rs.3,00,000/- issued by Shree Ambica Auto Sales & Service as well as for having received the same amount towards the repair charges of the subject vehicle. 

19.    It is the contention of the learned counsel for the complainant that, the bill vide EX.P.5 for a sum of Rs.9,000/- was paid by the complainant for shifting the insured vehicle to the accidental site to the show-room.  Hence the total of Ex.P.5 and EX.P.10 bills comes to Rs.8,09,000/-, the complainant claimed Rs.8,05,507/- towards repair charges of the vehicle.  In EX.P.9 tax invoice the particulars of the repair work done has been mentioned.  As per the terms and conditions of the policy vide EX.R.3 it appears that, the deduction for depreciation is permitted 50% for all rubber/nylon/plastic parts, tyres, tubes, batteries and airbags and 30% for fibre class components and not entitled for the parts made up of glass.  Further if the age of the vehicle is more than one year 10% depreciation is permitted.  In the case on hand, the manufacturing year of the vehicle was 2020 and in the copy of the RC produced by the complainant it appears that, the RC was made on 17.03.2020.  Since the accident took place on 25.04.2021 the vehicle has aged more than one year.  The opposite party did not bifurcate with regard to the replacement of plastic items, glass items, etc.  Hence we feel 10% on the amount of Rs.4,40,349-48 as appears in EX.P.9 and 10% on the amount of Rs.2,20,000/- is to be deducted towards depreciation.  Hence it comes to Rs.22,000/- on Rs.2,20,000/- and Rs.44,034/- on the amount of Rs.4,40,349/-.  The total of the same comes to Rs.66,034/-.  Hence the complainant is entitle for a sum of Rs.5,94,315/- towards repair of the vehicle. 

20.    The complainant further claimed interest at the rate of 18% per annum.  We feel the said rate of interest is highly exorbitant one and interest at the rate of 9% per annum would suffice from the date of repudiation i.e., on 11.08.2021.  Further the complainant claimed expenses incurred towards idling charges for a sum of Rs.1,14,600/-.  It is the contention of the learned counsel for the complainant that, the complainant was unable to use the vehicle for the period from 25.04.2021 to 02.11.2021 and the complainant had hired two drivers for running the company vehicle for a monthly salary of Rs.18,000/- per month.  Hence the complainant was forced to incur idling charges at the rate of Rs.600/- per day towards driver salary for the said period.  The accident was on 25.04.2021 the opposite party was not the reason for the accident.  Further there is no contributory negligence on the part of opposite party and it is not alleged as such.  No doubt opposite party had repudiated the claim.  On perusal of EX.P.9 invoice it appears that, the bill was raised on 11.11.2021 and the amount of Rs.5,00,000/- and Rs.3,00,000/- were paid on 05.10.2021 and 10.11.2021 to the service provider.  It is not the case of the complainant that, the vehicle was repaired by 25.04.2021 itself and because of non-reimbursement by the opposite party the vehicle was laid in the guarage itself.  Hence we feel the complainant is not entitle for the idling charges claimed.

21.    It is the contention of the learned counsel for the opposite party that, the complainant being a firm is not entitle for any compensation towards mental agony.  In support of the contention he relies the judgment rendered by Hon’ble Apex Court reported in III (2009) CPJ 90 (SC), Sikka Papers Limited Vs. National Insurance Company Limited & Others.  In the said judgment it is held that, complainant being a company, claimed for mental harassment illegally is not permissible and only natural person can claim damages for mental harassment and not the corporate entity.  Hence the complainant is not entitle for any compensation towards the mental agony.  We feel the reason of the company for repudiation of claim is not a sound one.  The act of opposite party made the complainant to get issued notice through advocate to pay the compensation vide EX.P.12 and to file the present complaint.  Hence the complainant is entitle for litigation cost of Rs.10,000/-.  Accordingly we answer this Point partly in affirmative.

22.    POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party is directed to pay to the complainant a sum of Rs.5,94,315/- with interest at the rate of 9% per annum from the date of repudiation i.e., on 11.08.2021 till realization and a sum of Rs.10,000/- towards litigation cost.

The opposite party shall comply the order within 30 days.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.10,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 21^st Day of April, 2023)       

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Smt. Shilpa Basavaraj, Company Director, the complainant (PW-1) has filed affidavit in the form of her evidence in chief.

Documents submitted by the complainant side:

1. Letter of authority – EX.P.1.
2. Certificate U/s.65(B) of Indian Act – Ex.P.2
3. Copy of original insurance policy – EX.P.3.
4. Photographs (04 in numbers) – EX.P.4.
5. Original copy of Invoice of Crain dt.25.04.2021 – Ex.P.5.
6. Copy of claim – EX.P6.
7. Original copy of repudiation letter dt.11.08.2021-EX.P.7.
8. Copy of reply dt.27.08.2021 with postal receipt & acknowledgment – EX.P.8
9. Copy of Tax invoice – EX.P.9
10. Copy of invoice dt.05.10.2021 – EX.P.10
11. Copy of pay slip – EX.P.11
12. Copy of legal notice dt.02.11.2021 with email, postal receipt, postal track consignment – EX.P.12.

Witness examined for the opposite party side: 

Sri. Raj Kumar Shanmugam, Assistant Manager of opposite party (RW-2) has filed affidavit in the form of his evidence in chief.

Documents marked for the Opposite Party side:

1. Letter of authorization – EX.R.1.

2. Copy of policy – EX.R.2.

3. Copy of terms & conditions – EX.R.3.

4. Copy of claim form dt.21.05.2021 – EXR.4.

5. Repudiation letter dt.11.08.2021 – EX.R.5.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•