IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum
Sonitpur, Tezpur
Sri P.Das
Member
District Consumer Disputes
Redressal Forum, Sonitpur
Smti S.Bora
Member
District Consumer Disputes
Redressal Forum,Sonitpur
CONSUMER COMPLAINT NO.13/2017
Abdul Hussain : Complainants
S/o Usman Ali
Resident of Vill: Gotlong
P.O: Kaliabhomora, P.S: Tezpur
Dist: Sonitpur,Assam
Vs.
1.The General Manager : Opp. party
Shriram General Insurance Co.Ltd.
E-8,EPIP,RIICO Industrial Area, Sitapura
Jaipur-Rajasthan-302022
2.The Manager
Shriram Transport Finance Co.Ltd.
Parmeshwari Building, Tezpur
Near Himmatsingka Petrol Pump, Tezpur-784001
Dist: Sonitpur,Assam.
3.Ashok Motors,
Mission Chariali, Tezpur-784001
Dist: Sonitpur,Assam
Appearance:
Sri Debajyoti Choudhury, Advocate. : For Complainant
Sri Paramjeet Singh Shetty , Advocate. : For Opp. party No.2
None : For Opp. party No.1
Sri D.Bose, Adv : For Opp.party No.3
Date of argument : 22-11-2017
Date of Judgment : 13-12-2018
J U D G M E N T
- The facts under the complaint, in brief, are that Complainant’s Bolero Pick up Van bearing registration No.AS-12-AC-1457 met with an accident on 08-05-2015 and suffered damages. Harping on the fact that at the time of obtaining the vehicle on finance from the opposite party No.2, the insurance part of the vehicle was undertaken by the opposite party No.2 under internal tie up with the opp.
Party No.1, Complainant submitted duly filled up insurance Claim Form complying with all official formalities with the opposite party No.2. Allegedly, on instruction of the opposite party No.2, the vehicle was also placed before the opposite party No.3. But the vehicle was never repaired despite service of legal notice on the opposite party No.2 and elapsation of considerable period of time. Alleging deficient service on the part of the opposite parties, the complainant is thus before the Forum praying a total relief of Rs.60,000/-.
- Opposite party No.1 & 3 failed to contest the case despite service of notice of the case upon them and thus the case proceeded ex parte against them. Opposite party No.2 contested the case by filing written version. Contending inter alia thereunder that it had no role to play in the case and had unnecessarily been dragged into the case insofar as the opposite party No.1 & 2 being two separate individual entities and, completely denying the statements made under the complaint, save and except the fact of damage of the vehicle, the contesting opposite party No.2 had thus, denied any deficiency on its part and had prayed for dismissal of the complaint with cost.
- Complainant tendered his evidence in chief on affidavit exhibiting some documents thereunder. No witness has been examined by the contesting opposite party. Complainant was cross-examined by contesting opp. party No.2 and opp. Party No.3.
We have carefully considered the materials on record, including the written argument filed by the complainant.
POINTS FOR DETERMINATION
i) Whether complainant is a “Consumer”within the meaning of Section 2(1)(d)
of the Consumer Protection Act ?
ii)Whether there was deficiency in service on the part of the opposite party
insurance company ?
iii)Whether complainant is entitled to get any relief/reliefs as claimed ?
DECISION ON THE POINTS WITH DISCUSSION
4.Point No.(i)-It has already been noted hereinbefore that opposite party No.1 Shriram General Insurance Co.Ltd. failed to submit any written version. Opposite party No.2 Shriram Transport Finance Co. Ltd. admitted the claim of the Complainant that he had purchased the vehicle in question with financial assistance received from the former under hire purchase Agreement. Complainant by adducing oral and documentary evidence (Policy document
Ext-7 & 8) proved that his vehicle was duly insured with the opposite party No.1 and on the alleged date of accident the Policy was in force. The type of
vehicle and Ext-6 (Public Carriers Permit) clearly reveal that complainant used the vehicle as a Commercial vehicle for carrying goods.
5. To exercise our jurisdiction under the Consumer Protection Act, Complainant must be a “Consumer” as defined in Section 2(1)(d) of the Act. As per Section 2(1)(d) of the Act “Consumer”means a person who-
(i)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 obtains 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 and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”
Explanation to Section 2(1)(d) provides that –
“For the purpose 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”.
6. Complainant failed to make any averment in the complaint that the vehicle in question was used by him for self employment to earn his livelihood. During cross-examination, Complainant answered the question put by the Forum – “Whether he had any other vehicle” as follows –
“At the time of accident of the vehicle I had another Mahindra Bolero Pickup Van. Both the vehicles, at the relevant time, were used for commercial purpose”.
That being the position, the Complainant does not fall within the ambit of definition of “Consumer” u/s 2(1)(d) of the Act.
7. Learned advocate for the Complainant in his written argument stated-
“iii) The Forum Court decide any issue on its own
The Hon’ble Supreme Court held that.
“When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of Justice”.
Hence, Forum is entitled to decide only those pleaded and can not decide any thing of its own.
iv) The Complainant is a consumer or not is an issue of law and need be decided at the preliminary stage of the case. Hence, at this stage of the case the Forum has no jurisdiction to decide the issue of its own as to the complainant being a consumer.
v) As these opposite parties no where stated and or raised issue of jurisdiction of the complainant so the Forum has no right to decide it at its own.
The OP’s did not even write a single line against as to the complainant’s right to file the suit being a consumer.
Hence; the complainant is a consumer”.
8. It has already been observed that the case has been proceeded ex parte against opposite party No.1. The Complainant has filed the instant case before the Forum on the basis of Insurance Policy for his vehicle with the opposite party No.1.
9. To maintain a case before the Forum, one must be a”Consumer” within the ambit of definition u/s 2(1)(d) of the Consumer Protection Act. What have been stated by the learned advocate, reproduced above are liable to be discarded at the threshold when the documents submitted by none other than the Complainant clearly speaks about commercial use of the vehicle. Accordingly, we do the same and decide the Point No.(i) in the negative.
10.Point No.(ii):-Ext-7 is the Insurance Certificate cum Policy Schedule of the vehicle in question. As per Ext-7, the vehicle was insured with the opposite party No.1 w.e.f 02-05-2015 to 01-05-2016. The vehicle allegedly sustained damages in a road accident on 08-05-2015.
11. Complainant, neither in his complaint nor in his evidence stated that due intimation about the accident was given to the opposite party No.1. Complainant, even nowhere stated that Claim Form was submitted before the oposite party No.1. His case is that immediately after the accident information was given to the opposite party No.2. Opposite party No.2 is only a financier. Opposite party No.2 has no obligation under the Policy to repair the vehicle and realize the cost of repair from the opposite party No.1. Complainant in his complaint and evidence on affidavit stated-
“That the Opp.Parties Nos.1 and 2 have internal tie up which is clear from the fact that at the time of finance the Opp. Party No.2 insured the vehicle with the Opp. Party No.1.
That the vehicle met with an accident on 08-05-2015 at Green Village under Mahur Police Station, Dima Hasao, Assam and at that time the insurance policy was in force. The Complainant immediately informed the officials of the Opp. Party No.2 at Tezpur and after all formalities and due paper works with the Opp.Party No.2 and Police officials of Mahur Police Station, Dima Hasao, Assam, the complainant brought the vehicle for repairing at a private garage at Mahabhairab,Tezpur as per instructions of the Opp. Party No.2.
That the Complainant submitted duly filled in form and complied with all official formalities and lodged a legitimate and fair claim with the opposite party No.2.
That after several visits made by the complainant the officials of the Opp. Party No.2 instructed the complainant to shift the vehicle at the Mahindra and Mahindra Workshop at Dekargaon, Tezpur, the opposite party No.3 and as instructed the Complainant shifted the damaged vehicle to the opposite party No.3 on 17.12.2015”.
12. Opposite party No.2 denied such claim. Therefore, the burden to prove claim of internal tie up between the oposie party No.1 and 2 heavily lies on the complainant. But he failed to prove such claim by producing document. Without there being any document, claim raised by the complainant cannot be accepted.
For the reasons stated above, we have not found any deficiency in service on the part of the opposite parties.
13. The judgment passed by the Hon’ble Apex Court in Civil Appeal Nos. 5798-5799 of 2008 (Bachhaj Nahar Vs. Nilima Mandal & Anr), in Civil Appeal No.1148 of 2010 (Nandkishore Lalbhai Mehta Vs. New Era Fabrics Pvt. Ltd & Ors), in Civil Appeal Nos.8072-8073 of 2009 (General Motors (India) Private Ltd. Vs. Ashok Ramnik Lal Tolat & Anr.) referred to by the Complainant side are found not at all relevant to the case at hand.
14.Point No.(iii)- In view of decision of Point No.(i) & (ii) against the Complainant, he is not entitled to get any relief.
O R D E R
Consequently, the complaint stands dismissed. Parties are left to bear their own cost.
Given under our hands and seal of this Forum this 13th day of December, 2017.
Dictated and corrected by: Pronounced and delivered
( A.Devee)
President (A. DEVEE)
District Consumer D.R Forum,Sonitpur President
Tezpur District Consumer Disputes Redressal Forum Sonitpur,Tezpur
We agree:- (P.DAS) (SMT.S.BORA)
Member Member
