Order-16.
Date-19/05/2017.
Shri RabidebMukhopadhyay, Member.
This is an application u/s.12 of the C.P. Act, 1986.
The Complainantcompany purchased a light motor vehicle of make Honda Civic 1.85 MT for extensive use in business and the said vehicle was registered with the competent authority being Public Vehicle Department, Kolkata bearing registration No.WB02Y2131 and the vehicle was procured by the company for extensive use of business. The above vehicle was insured with M/s TATA AIG, the opposite parties in the present and premium was assessed the tune of Rs.11, 085/- with the receipt of premium, the opposite parties became a service provider to the complainant and a relationship of consumer and service provider ensured. The complainant on September 23, 2012 went to meet business associate at Sarat Bose Road, Puddapukur parking the vehicle at the parking lot at Puddapukur. After parking and going inside the house of his business associate, there started severe rain and road was heavily water logged. The logged water percolated inside the vehicle and after the visit when he came down, the car could not start. So he left the vehicle after arranging proper security and came back to house by hiring alternative mode of transport. The complainant then and there informed the insurer and to keep the things (the vehicle) in proper form asked M/s Pinnacle Honda, Chandrani Towers, 739, Anandapur, E.M. Bypass, Near Ruby Hospital, Kolkata-700107, who are the approved service centre of Honda. Subsequently the mechanic of the above company arranged to take the vehicle to their garage from Sarat Bose Road to repair the vehicle and rectify its defects, the service provider gave an estimation of Rs.2,34,074/- to put the vehicle in running condition. The above estimate was forwarded by the complainant and he referred the matter to the company, but they paid no heed and after long persuasion appointed Surveyor from their panel who inspected the vehicle on October 1, 2012, March 13,2013 and May 2, 2013, after a gap of eight months and assessed the loss as Rs.96,128/- as per his report dated May 3, 2013, which was again reduced by the same Surveyor to Rs.8,088/- as per his survey report dated August 3, 2013. The complainant was surprised to notice that the same date of inspection i.e. on May 2, 2013 firstly assessed the loss Rs.96,128/- as per his survey report dated May 3, 2013 and then reduced to Rs.8,088/- as per second survey report dated August 3, 2013 which was in contradiction to each other. It is inconceivable how a surveyor assessed the loss in two different on the same day which appears to be a nexus between the insurer and its appointed loss assessor. The complainant’s claim of loss to the vehicle based on the preliminary investigation was assessed to Rs.1,61,214/- by the surveyor then reduced to Rs.96,128/- which has been further negated by insurer and they stuck to the print that Rs.8,088/- was payable. Thereafter a lot of letters were exchanged between the insurer and insured which are marked as Annexure-C collectively but after failing in all efforts, the complainant seeks redressal of his grievances by filing this complaint and is entitled for an order of reimbursement of first assessed loss. Since the complainant had no other alternative except to pay Rs.2, 34,074/- to make the vehicle in workable condition, which he paid and took the delivery of vehicle. By such prolonged harassment by the insurer in settlement of his claim, the complainant suffered severe mental agony for not being use the vehicle for over one year and for non-acceptance of the legitimate claim by the insurer. Complainant prays for an order / direction on the opposite parties to pay Rs.2, 34, 074/- towards cost and repairing of the vehicle. An order / direction on the opposite parties to pay compensation to the tune of Rs.3,00,000/- for the mental agony, loss to his business owing to non-availability of the vehicle and cost of litigation of Rs.30,000/- has been prayed for in the complaint.
OPs have contested the case by filing written version. At para-4 they stated that the case is barred by limitation stating that the incident took place on 23/9/2012 and the case has not been filed within two years. OPs stated that complainant did not lodge the complaint even within 2 years of their first communication on 12/9/2013 stating no liability to damage in respect of hydrostatic damage to the said engine of the said vehicle. OPs denied each and everything except what are matters of record.
OPs admitted that the vehicle bearing registration no. WB 02 Y 2131 was insured by them under valid Policy no.0100508080 00 for the period from 31/7/2012 to 30/7/2013 detailed terms and conditions of which have been given under Annexure-A.
OPs stated that the complainant tried to start the vehicle which caused damage to certain internal parts of the engine (better known as hydrostatic lock). Such hydrostatic lock is covered on a separate Add-On package against additional payment, which the complainant did not pay. So, OPs offered only settlement amount other than hydrostatic coverage and thus they are not deficient. A portion of auto-secure policy condition is marked as Annexure-B.
It is stated that after getting information of claim, OP immediately appointed a licensed surveyor, Amitava Chakraborty who conducted the job of survey and assessed the loss at Rs 96128.63 and it is stated that the assessed loss amount is not the liability of the OP-1&2, stating further that hydrostatic loss is not covered. Copy of report is marked as Annexure-C. The cause of loss is stated to be aggravation of loss and consequential loss. The surveyor is stated to have submitted another report assessing the loss at Rs 8088.41 (Annexure-D) which was offered by OPs (Annexure-E) but not accepted by the complainant. So, as advocated by OPs, they have no deficiency in service. “Section I. Loss or Damage to the vehicle insured and CONDITION (4)” have been reproduced at page 5 of WV.
The OP stated that the complainant has no proof that they paid Rs 234074/- for repair of the vehicle. The OP-1&2 reminded that parties are bound to act according to terms and conditions of the Policy.
Points forDecision
- Is the case maintainable?
- Is the complainant a consumer as defined under the C P. Act, 1986?
- Are the O.Ps. deficient and does the complainant deserve relief?
Decision with Reasons
The O.P.-3 did not take part in the proceeding.
We have perused all the documents filed by the complainant and OPs-1&2 filed under Annexures. From perusal of records, it appears that the dispute relates to Limitation, cause of action, Surveyor’s report and complainant’s refusal to accept offer of OPs-1&2(Rs. 8088/-) on the basis of last survey report (Amended Final Report). OPs-1&2 filed as good as 6 case laws in support of their version.
The complainant filed neither Evidence, questionnaire nor any BNA.
On perusal of the complaint, particularly at para-2, it appears that the subject vehicle against which insurance claim has been sought was purchased for extensive use in business. Relevant portion of the complaint para is being reproduced for better understanding. “2.That the company purchased a light motor vehicle and the vehicle was procured by the company for extensive use in business.”
It is necessary at this juncture to focus at the definition of ‘consumer’ availing services from the service provider. Section 2(1)(d)(ii) of the C. P. Act, 1986 states, inter alia, as “consumer means any person who (i) (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…….when such services are availed of with the approval of first mentioned person but does not include a person who avails of such services for any commercial purpose”
The instant case admittedly falls within the exclusionary clause of the definition of “consumer” and so, is not maintainable.No plea of “commercialpurpose”forself-employmentas furnishedunder Explanation Clause in the said section does not hold good as the company complainant admitted otherwise.
So, the case is not maintainable and we need not focus into the merit of the case. Deficiency by the OPs and relief to complainant remain beyond our discussion.
In the circumstances, we are constrained to pass
ORDER
That the complaint being not maintainable be and the same is dismissed with no order as to costs.
Let copies of the order be handed over to the parties when applied for.
