Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                         ISBT Building, Kashmere Gate, Delhi

                               Complaint Case No.-121/2014

Mrs. Krishna W/o Mr. Gopi Ram Sharma

Prop. M/s Shrikrishna Logistics,

R/o Plot No. 188, Malik Pur Kothi,

Behind Eicher Agency,

Near Telco Services Station, Rangpur,

V& PO Mahipalpur,

New Delhi-110037                                                                                  ...Complainant

                                      Versus

OP: Shriram General Insurance Co. Ltd.

       (A Jt. Venture with Sanlam, South Africa)

       E-8, EPIP, RICO, Sitapura, Jaipur

      Shriram General Insurance Co. Ltd.

       1001/GF, Arya Samaj Road,

       Nalwala, Karol Bagh,

      New Delhi                                                                         ...Opposite Party

                                                                   Date of filing:             18.03.2014

                                                                   Order Reserved on:     27.12.2022

                                                                   Date of Order:             13.01.2023

Coram: Shri Inder Jeet Singh, President

              Shri Vyas Muni Rai,    Member

              Ms. Shahina, Member -Female

Inder Jeet Singh, President

                                             ORDER

1. (Introduction to case of parties):  The complainant makes allegations of deficiency of services against OP that despite her insured vehicle DL 1P 4314 (container, briefly 'vehicle' or 'subject vehicle') was met with an accident, there were damages and it was got repaired, however, the damages were not reimbursed by the OP against insurance cover. The claim was opposed by the opposite side firstly, there were no deficiency of any services, secondly, her claim was closed being no claim case, thirdly the complainant was asked but failed to provide copy of FIR, driving licence of driver, repair bills etc. The complainant is not a consumer since insurance policy is in the name of M/s Shrikrishna Logistics.

2. The complainant had got insured her vehicle DL 1P 4314 from OP vide policy no. 106026/31/14/000540 effective from 01.04.2013 to 31.03.2014 (vide policy Annex. C-1 to complaint) with IDV of Rs. 6,15,000/-. On 02.09.2013 the said vehicle was loaded with grocery item being taken from Delhi to Mumbai, it was being driven by driver Bachhan Dev Pandey and helper/ cleaner was Shailender Kumar. When the vehicle reached the Jaipur Expressway near Karni Vihar P.S. and the time was 05:00 am of 03.09.2013, a dumper going ahead had applied the brakes suddenly, the subject vehicle hit the dumper from its behind. Because of this collision, the subject vehicle was damaged extensively and cleaner also received injuries, the matter was reported to the local police (its record is Annex. C-2 of DD entry other enquiry/ investigation paper). The OP was informed of incident, OP nominated surveyor, who conducted the survey and there were bills of Rs. 1,51,065/- incurred on repair of the vehicle, bills along with other documents of insurance policy, claim form, driving licence of driver were furnished to the OP at its Branch Office of Karol Bagh (which are Annex. C). The claim was not settled and that is why legal notice dated 20.01.2014 by post was sent to OP (copy of notice and original postal receipt are Annex. C-4 and C-5). Hence, the complaint was filed for payment of Rs. 1,51,065/- towards expenses of repairs with interest at the rate of 12 % p.a. and compensation of Rs. 50,000/- on account of harassment and mental agony.

3. Whereas, OP opposed the claim that complainant failed to furnish the record asked for, the claim was closed as 'no claim case' vide letter dated 16.10.2013 and 23.10.2013 (Annex.- A), subsequent to claim intimation slip (Annex.-A). There was no cause of action arisen against the OP and claim was not maintainable. The complainant is not a consumer in terms of definition given in the Consumer Protection Act as well as ratio of law laid down in catena of judgments of superior Commission  (the citations/law is also mentioned in the reply). The policy was from period  01.04.2013 to 31.03.2014 in the name of M/s Shrikrishana Logistics, the terms of conditions of policy have also been filed with the reply ( as Annex.-C). The surveyor appointed had assessed the loss to the tune of Rs. 30,864/- (Annex.- D). No legal notice was served upon the OP  and complainant was required to prove her case.

          However, the complainant denies all allegations of the reply of OP and she reaffirms her case as correct.

4. Complainant Smt. Krishna filed her detailed affidavit on the line of complaint while relying upon the same document annexed with the complaint. On the other side, Shri Rajdev Tripathi, Manager of OP filed his affidavit of evidence and also relied upon the plea and documents filed with the reply.

5.  Both the sides have filed their written submissions as well as made oral submissions through their counsels.

6.1: The case of both the parties are considered,  keeping in view the documentary record, other evidence, their submissions as well as other circumstances. The OP has raised an issue that the complainant is not a 'consumer' since the vehicle was got insured in the name of M/s Shrikrishna Logistics and that is why it is not consumer. OP fortifies its contention while relying upon Sterling Computers Ltd. Vs  P. Raman Kutty I (1196) CPJ 118 (NC) and further reliance was placed on other cases in its reply and written submission. Whereas, the case of complainant Mrs. Krishna is that she Proprietor of M/s Shrikrishna Logistics and subject the vehicle was plying for earning self employment to earn livelihood, it could be by engaging of driver, it was not for commercial activities. She is a consumer.  In the police report papers, it was also inquired about the driver as well as the helper assisting the driver, that the vehicle was being driven to transport grocery.

          By analyzing the rival plea, what emerged is that OP is drawing inference from nomenclature of name of insured M/s Shrikrishna Logistics that the vehicle would have been for commercial purposes.  In the definition of consumer, it does not include  a person, who avails of such services for any commercial purposes. However, there is also an Explanation appended to definition of a consumer, commercial purposes does not include avail of services which are exclusively for  purposes earning his livelihood by means of self-employment. This test is to be applied on the basis of facts and not on nomenclature of name of proprietorship firm of complainant.

          There is no documentary record by the OP or proof of any proposal form containing declaration that policy was to be taken for vehicle for commercial activities, other than self employment or proof of other facts to counter the case of complainant that the vehicle was being used for commercial activities other than for self employment and livelihood of complainant. Simultaneously it is clear case of complainant that complainant is Proprietor of M/s Shrikrishna Logistics and being proprietorship firm the drier was employed in the said vehicle and it was source of livelihood of complainant. To that extent, the OP could not establish the plea taken in the reply. Thus, it is held that the complainant is a consumer.

6.2: The other plea of party is juxtaposition to each other.  The complainant denies service of any letter dated 16.10.2013 and 23.10.2013 upon her. The complainant had also provided documentary records to OP. The complainant fortifies her contentions while relying upon Whirlpool of India Ltd. & Anr. vs Max Life Insurance Co. Ltd. IV (2015) CPJ 273 (NC) that sending the letters to unconcerned persons was held to be making lame excuses. On the other side, the complainant had placed on record postal receipt along with the copy of legal notice but OP denies the receipt of any legal notice of complainant.  Each the party is denying the documentary record of other side, which was stated to be sent by post, although none of them placed on record the track report of service of those letters and of legal notice.

          The surveyor report depicts certain facts like the vehicle was found lying at police station, the detail of driving licence of driver, cause of accident, narration of such facts could be possible only when the record  was provided and available with the opposite side. Therefore, the plea of OP that it was treated no claim case for want of providing the requisite record does not sustain.

6.3: In continuation of the previous discussions, it stands established that there was accident of the subject vehicle, it was seized in the police station and the OP’s surveyor had also carried the survey and then loss was assessed. On the point of losses/damages,  OP contends that no case is made out but the complainant makes claim of entire bill of repairs. The complainant relies upon Oriental Insurance Co. Ltd. vs Hari Vindo Pant II(2017) 8A (CN) (Utta.) that there was deduction from estimated amount arbitrarily by the surveyor in his report. The complainant  claims entire amount of repairs.

          However, the surveyor report not only gives detail of factors surveyed by him but also the bills furnished by the complainant and while assessing the loss, factor of depreciation was applied (viz. for 15% on metal part, 15% depreciation of plastic part, 30% for fiber part and 0% for disposable parts)  and then the loss of Rs. 30,864/- was arrived. This detailed report of surveyor is self-explanatory and the feature of this case are distinguishable from the case being relied upon (Whirlpool of India Ltd -supra) by the complainant.  

6.4.1: Accordingly, the complainant is held entitled for amount of Rs. 30,864/- in respect of repairs of her vehicle which was met with accident & damaged on 03.09.2013. To that extent, complaint is allowed in favour of complainant and against the OP.

6.4.2: The complainant has claimed pendent lite and future interest @ 12% p.a., however, keeping in view the features of the case interest @ 6% p.a. from the date of filing of the complaint till the date of realization of the amount will meet both ends of justice.

6.4.3: The amount of damages, for suffering trauma and inconvenience for seeking relief of her valid claim, is quantified as Rs. 10,000/- in her favour and against the OP

7. Hence, the complaint is allowed in favour of complainant and against the OP, to pay a sum of Rs. 30,864 /- along with interest @ 6% p.a. from the date of filing of the complaint till the date of realization of the amount, apart from  damages of Rs. 10,000/-within 30 days from the date of receipt of this order.

8. Copy of this sent/provided forthwith to the parties free of cost as per Regulations within 4 days.

9:  Announced on this 13th day of  January, 2023. [ पौष 23, साका 1944].