DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)ISBT KASHMERE GATE DELHI
CC/131/2016
No. DF/ Central/
Sh. Rajesh Kumar Sharma
S/o Late Sh. Shiv Kumar Sharma,
R/O C – 294, Nehru Vihar,
Delhi - 110094 …..COMPLAINANT
VERSUS
Shriram General Insurance Company Ltd.
Through its Competent/Principal Officer
E-8, EPIP, RIICO Indus. Area,
Sitapura, Jaipur (Rajasthan)
Branch office at:
Shriram General Insurance Co. Ltd.,
1001, Ground Floor,
Arya Samaj Road, Nalwala,
Karol Bagh, New Delhi
…..OPPOSITE PARTY
Coram : Ms. Rekha Rani, President
Mrs. Manju Bala Sharma, Member
Shri R.C. Meena, Member
ORDER
Rekha Rani, President
- Shri Rajesh Kumar (in short the complainant) filed the instant complaint under section 12 of the Consumer Protection Act, 1986 as amended up to date (in short the Act) pleading therein that Complainant is a registered owner of vehicle bearing registration no. RJ-06-GB-6000 which was duly insured with Shri Ram General
Insurance Company Limited (in short OP) vide Insurance Policy bearing no. 1011026/31/15/018446.The vehicle met with an accident on 21/02/2015 near Rajokari Toll Plaza, and was badly damaged.OP was immediately informed about the said incident vide claim no. 1000/31/15/C/051104 dated 21/02/2015.
- OP investigated the matter. Complainant provided all the requisite documents and assistance as sought by OP for completion of formalities for reimbursement of the Insurance amount. Complainant got the vehicle repaired. A sum of Rs. 4 Lacs was spent on repairs. OP repudiated the claim vide its letter dated 20/05/2015 on the ground that driver of the vehicle was not having license at the time of accident. Complainant submitted the license of the Driver Babulal. OP has been causing unnecessary torture and harassment to the complainant in not reimbursing the claim on account of accident of vehicle.
Hence the instant complaint seeking direction to OP to pay to the complainant a sum of Rs. 4 Lacs with interest at the rate of 18%, Rs.1 Lac as compensation for causing him harassment and agony along with litigation cost.
3. On receipt of notice of the instant complaint OP appeared and contested the same
vide its reply. It is not denied that the subject vehicle was insured and same met
with an accident on 21/022015. It is stated that on scrutiny of the driving license
of Babulal, the driver of the said vehicle, was found to be invalid on the date of accident. It is also stated that the duly authorized surveyor inspected the vehicle
in question and assessed the losses as Rs. 1,03,675/- as per the terms & conditions of the policy. It is denied that complainant has any cause of action.
4. We can adjudicate the claim only if complainant is a consumer.
5. On 31/01/2020 Shri Bhoop Singh Yadav, Manager of the complainant, was
present. His statement was recorded. He stated that he is the manager of the complainant for the last 22 years and is looking after maintenance of buses checking authenticity of driving licences of the drivers, their badges etc. and has also been appearing in court cases. He further stated that complainant is having 40-45 buses running on road. Today also Shri Bhoop Singh Manager of the complainant was present alongwith Sh. Narender Chauhan Advocate. Shri Bhoop Singh reiterated what he said on 31.0.1.2020.
6. The word ,consumer has been defined under Section 2(1)(d) (i) of the Act as under :
“(d) consumer means any person who, -
- 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 obtain 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 or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.”
5 (Explanation. for the purposes 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;]
7. Clause (i) provides that one who buys any goods for a consideration is a
Consumer but a person who obtains such goods for resale or for any commercial purpose, is not a consumer. The intention of the Legislature behind said definition of Consumer is that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, such commercial transactions are excluded from the purview of the Act.
8. The Supreme Court has discussed the term consumer in the judgment reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held:
“The National Commission appears to have been taken a consistent view that where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit , he will not be a consumer within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression large scale is not a very precise expression - Parliament stepped in and
added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression commercial purpose - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others work, for consideration or for plying the car as a taxi , can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for commercial purpose would not yet take the purchaser out of the definition of expression of expression consumer . If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self employment , such purchaser of goods is yet a consumer . In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a commercial purpose , to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., uses them by himself exclusively for the purpose of earning his livelihood and by means of self-employment make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer.
Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer.”
9. Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon ble National Commission observed thus :-
“3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d) (i) of the C.P. Act.”
10. In Vandana Global Limited vs M/s Jaypee Engg. & Hydraulics Complaint Case No.13/06 before Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur (C.G.) complainant was a limited Company and dealt in the business
of manufacturing Sponge Iron, Billets, Power, Ferro Alloys, Ferro Manganese, Metal Ferro Manganese, Silico Manganese, Metal Silico Manganese etc. State Commission vide its order dated 08.04.2013 observed that complainant purchased JP-Rok Machine for commercial purpose and thus complainant was not a Consumer and its request to direct OP to return the amount paid for defective product with interest and compensation was dismissed.
11. In Raj Agrawal vs G.M.V.E. complaint case No. 23/2009 date of order 11.12.2019 before Chhattisgarh State Commission complainant purchased 4 vehicles. Claim was filed in respect of each vehicle which was still in warranty period and were not being repaired by the OP. It was held that the vehicle in question was purchased for commercial purposes and plied by the complainant for transportation business for earning profits and therefore he did not come under the category of a consumer.
12. Since complainant owns/operates 40-45 buses he cannot be using the same for the purpose of earning his livelihood by means of self-employment. He is using the same for making profits. As such complainant is not a consumer. The complaint is thus not maintainable before this Forum. Copy of this order be sent to the parties as per rules. File be consigned to record room.
Announced this 19th day of February 2020.
