BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    06^th DAY OF NOVEMBER 2019

Complainant/s: -                           

M/s.National Bus Service Prop. Imtiaz Ahmed Khan S/o Late Mehaboob Khan, Aged 53 years,

No.7, Khaji Road,

R.V.Road, Opp:Vijaya

College, Basavanagudi, Bengaluru-04.

By Adv.Sri.G.V.Dayananda

V/s

Opposite party/s:-    

M/s.Shriram General Insurance Co. Ltd.,

3^rd Floor, S & S Corner Building, Flat No.48,

Hospital Road,

Opp:Bowring and

Lady Curzon Hospital, Shivajinagar,

Bengaluru-01.

By Adv.Sri.B.C.Shivanne Gowda

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s.12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to pay totally a sum of Rs.15 lakhs with interest at 18% p.a. i.e. on insurance value of the bus and further 18% p.a. towards mental agony.

2. The brief facts of the complaint are as under:

The Complainant submits that, he is the registered owner of Bus bearing no.KA51 C4527 and insured the same with OP package policy “Zone B Policy – Motor Commercial Vehicle” valid from 23.06.17 to 22.06.18 by paying premium of Rs.62,048/- and value of the vehicle estimated for a sum of Rs.14,40,000/-. The Complainant further submits that, on 27.01.18 as usual his vehicle was parked behind Vibgayar School, Thubarahalli, Varthur, Bengaluru. He received information on 27.01.18 at about 2.15 am regarding fire accident to the bus when the vehicle was in stationary. The Complainant immediately rushed to the spot, by that time, fire brigade van was there and making their full attempt to put off the fire of the bus, but his bus and another bus both burnt completely. The fire brigade has issued certificate regarding the damage caused to the bus body, seats, tires and engine burnt. The Complainant informed the same to OP on very next day 28.01.18. OP deputed the surveyor to the spot and made inspection and survey report submitted. The Complainant submitted all the required documents of the said bus to the OP and claimed for total loss as per insurance estimated value of a sum of Rs.14,40,000/-. OP sent a letter on 30.01.18 stating that as per the contravention of the policy, the Complainant not enjoyed the No Claim Bonus (NCB), hence, they are closing the claim file as the Complainant violated the policy condition. The complaint has not taken NCB and also claimed any amount during the insurance period 23.06.17 to 22.06.18. The act of the OP amounts to deficiency of service. Hence, he issued legal notice dtd.22.03.18. After issuance of notice, OP official informed the Complainant to remove the bus from the scene of occurrence. Hence, the Complainant removed the said bus from the place for fire accident and parked in Bharath Bus Builders, Kanakapura Road, Gublala by towing the bus to the garage. It is more than 7 months over claim of the Complainant is not settled in order to enrich at the cost of the Complainant. Hence, the Complainant again issued notice on 22.03.18. But OP neither settled the claim nor sent reply. The Complainant approached the OP office personally nearly more than 20 times, but OP did not care to settle the claim. Hence this complaint.

3. After issuance of notice, OP did appear and filed version.  OP in its version submits that, the Complainant is not a consumer as he is doing business for commercial activity and hence complaint is liable to be dismissed. OP further submits that, the Complainant submitted claim along with all required documents. On scrutiny of the investigation report, police documents and proposal form submitted by the Complainant, at the time of obtaining the policy, it is noticed that, the insured was misrepresented stating that he has not claimed any amount from the previous policy and therefore, he is entitled to get NOB from the OP and accordingly, OP was given NOB. But as per the verification of records and email received from previous insurance company ‘Cholamandalam’ he has made the claim in the previous policy and the said claim has been settled by the previous insurance company. Therefore, the same is amounts to misrepresentation of facts and further the same is against the policy terms and conditions; contract of insurance which is issued on good faith. Accordingly, OP repudiated the claim on 31.01.18 stating that Complainant violated the policy terms and conditions. Hence, there is no deficiency of service on its part. Hence prays for dismissal of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OP filed affidavit evidence and produced the documents.  Both filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainant is a consumer comes within the purview of Sec.2(1)(d) of CP Act ?

2. Whether the Complainant proves the deficiency of service on the part of OP, if so, entitled for the relief sought for?

3. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- Does not survive for consideration

Point No.3:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OP. The undisputed facts which reveal from the pleadings of the parties go to show that, the said vehicle was insured with the OP. It is also undisputed that, the said vehicle was caught fire and substantially damaged. The claim of the Complainant is to direct the OP to pay Rs.15 lakhs being the insurance value of the said vehicle with other ancillary reliefs.

8. As to know, whether the Complainant is a consumer, we placed reliance on the contents of the para 3 of the complaint reads thus:

3. The Complainant insured the bus KA-51C-4527 with respondent package policy Zone B policy – Motor Commercial vehicle (package policy no.418005/31/18/001959 valid from 23.07.17 to 22.06.18 at the time of obtaining insurance the value of the vehicle estimated for a sum of Rs.14,40,000/-.

9. In the entire contents of the complaint, the Complainant never whispered a single word stating that, himself and his family members are eking livelihood out of the income derived from the said commercial vehicle. When the ingredients of the provisions of Sec.2(1)(d) of CP Act are lacking, under such circumstances, it cannot be held that, the Complainant is a consumer as per the decision of constitutional bench decision of the Hon’ble Supreme Court reported in (2010) 4 SCC 114 in the case of Economic Transport Organization vs. Charan Spinning Mills Pvt. ltd., and anr., wherein the relevant para no.52 reads thus:

52. We may also notice that Sec.2(1)d of the Act was amended by the amendment Act 62 of 2002 w.e.f. 15.03.03, by adding the words ‘but does not include a person who avails of such services for any commercial purpose’ in the definition of ‘consumer’. After the said amendment, if the service of the carrier had been availed of for any commercial purpose, then the person availing the service will not be a ‘consumer’ and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.

10. In the light of the decision cited supra, we come to the conclusion that, the Complainant is not a consumer comes within the purview of Sec.2(1)(d) of CP Act. Hence, we come to the conclusion that, complaint filed by the complainant is not maintainable before this forum. Anyhow, an option is left open to the Complainant to get redress his remedy before the competent court of law having got jurisdiction to try by taking the assistance of the decision of Hon'ble Supreme Court in the case of Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) on the question of limitation. Accordingly, we answered the point no.1 in the negative.

 11. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

12. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainant is dismissed. 

2. Anyhow, an option is left open to the Complainant to get redress his remedy before the competent court of law having got jurisdiction to try the same.

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

          Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 06^th day of November 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.16.10.18

Sri.Imtiaz Ahmed Khan

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OP dated.29.11.18

Sri.Shivananda.R.S, Manager-Legal   

Copies of Documents produced by OP

            MEMBER                                       PRESIDENT