(Delivered on 23/03/2023)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Complainant –Mr. Ranapratap  Ramdas Dahat has preferred the present complaint  under Section17 of the Consumer Protection Act, 1986.

 2.        Short facts leading to the present  complaint  may be stated as under:-

            Complainant – Mr. Ranapratap  Ramdas Dahat  had purchased  vehicle of Bharat  Benz, Model No. 1617-MD from the  Provincial Trucking (India) Pvt. Ltd., Amravati Road, Gondkhairi for  plying  as  heavy goods  vehicle for  transportation of goods.  The complainant has contended that  the said vehicle  was  only source  of  livelihood  for the complainant.  The complainant had obtained the loan of Rs. 21,20,000/- from State Bank of India, Main  Branch, Nagpur  for  purchase of the vehicle and thereafter  had spent  amount of Rs.  1,75,000/- for  constructing the body of the vehicle.  The complainant has contended that the vehicle was insured with Tata AIG General Insurance Co. Ltd. on the date of purchase i.e. on 26/07/2019.  Further the vehicle was also duly registered with the  Regional Transport Office, Nagpur(Rural) on 30/07/2019.  The complainant has contended that  the vehicle was insured  through Daimler Financial  Services  India Private Limited  for value of Rs. 21,20,000/- and  insurance  premium of Rs. 81,182.90 was also paid  by the  complainant.  The complainant had taken comprehensive  insurance  policy   and  the period was  from 25/07/2019  till midnight of 24/07/2020. The complainant has contended that on 14/03/2020 the vehicle  namely  the truck of the  complainant  met with  an accident  and  it  turned turtle in front of Bindu College on Bhokar - Umari Road in District Nanded when it was  loaded with 8700 Kg. Cotton.  Due to  accident  the chasis of the  truck was bent, and the body of the truck was totally damaged. The complainant  then lodged  the  report  with Bhokar Police Station  on  15/03/2020. The Police thereafter visited the spot on the same dated on 15/03/2020. The complainant has contended that due to the accident  he could not ply  the truck and therefore  was unable  to  pay the monthly  loan  installment of Rs. 50,540/-. On 15/03/2020 the surveyor of the opposite party also inspected the vehicle but the matter remained pending due to Covid -19 Pandemic. On 19/05/2020 the claim was submitted by the complainant and vehicle  was  towed  and brought to Nagpur and kept in the premises  of  the dealer Provincial Trucking(India) Private Limited on 20/03/2020. The complainant has contended that  the Surveyor reported  that  exact  estimate can be  given  only after opening of the parts. The complainant has contended that thereafter the Provincial Trucking (India) Private Limited  after verification  gave  the bill of    Rs.18,87,607/-. The complainant had also sent the claim statement   on 07/06/2020 but despite lodging  of the claim the opposite party did not finalized  the claim and claim has not been  processed  at all.  The complainant  was  therefore, compelled   to issue legal notice  on 23/06/2020  but there was  no response.  The complainant has contended that the truck of the complainant   was lying  with the Provincial Trucking(India) Private Limited and complainant has  to pay demurrage   charge.  of Rs. 500/- per day.  The complainant has contended that the opposite party has committed deficiency in  service  by not processing  the claim.  The complainant has therefore,  filed the  present  complaint  praying  for claiming  an amount of Rs. 21,20,000/- towards cost of vehicle  bearing  No. MH-40/DL-7799 as well as amount of Rs. 2,02,160/-  towards amount of installments of Rs. 50,540/- per month as well as compensation  of Rs. 1,00,000/- towards  mental agony and harassment.

 3.         After filing of the present complaint due notice was also issued to the opposite parties namely –TATA AIG General Insurance Co. Ltd.  The opposite party Nos. 1&2 have appeared and resisted the complaint by filing written version on record. The opposite parties Nos. 1&2 have taken a preliminary objection regarding tenability of the complaint. The opposite party Nos. 1&2 have contended that the complainant  was not at all the Consumer and was  in fact a fleet operator  and had  purchased  the truck for  expansion  of his own business.  The complainant  had purchased  truck  for commercial purpose  for making  profit by way of transportation  of goods and so he was  not  a Consumer  as the  complaint was filed  for Commercial purpose. The opposite party has also contended that  the  complainant – Mr. Ranapratap  Dahat had taken  a Commercial  Policy  in respect  of his truck bearing  No. MH-40/DL-7799  for  a period   for one year  from 25/07/2019 till 24/07/2020. The opposite party has admitted that the complainant has lodged the claim but  opposite party has contended  that  it was not liable to pay any  sum as the complainant  failed to comply with  any condition.  The opposite party has taken a  plea that  after getting  intimation  it asked  the complainant  to dismantle the engine  as well as  chassis  to ascertain  the loss but  the complainant  was not ready  to accept  the same.  The opposite party  has contended that  the surveyor  of the opposite party  wanted to  assess  the claim and  therefore he wanted  to open  the part of the  vehicle but  the  complainant  refused  to give consent  and therefore,  the actual loss could  not be assessed.  The opposite party has also contended that the Consumer Complaint was itself not maintainable in law.  The opposite party has already paid claim of Rs. 50,540/- & Rs. 30,000/- towards loss of Income as well as Rs. 18,700/- towards towing charges. For the forgoing reasons the complaint is not tenable  in law and  it deserves to be dismissed with cost.

 4.         The complainant- Ranapratap Dahat thereafter adduced evidence by way of affidavit. The complainant  has also placed reliance  upon  the documents  namely  copy of  insurance  policy  dated  25/07/2019, Certificate of goods transport, Copy of First Information  Report, Copy of Estimate and Copies  of mails sent to the opposite party.  Opposite Party - TATA AIG General Insurance Co. Ltd.  has also relied  upon documents.  Both the complainant and opposite party also filed written notes of arguments.

 5.         We have carefully gone through the documents filed by both the parties as well as written notes of arguments.

 6.         It is not in dispute that  the complainant –Ranapratap Dahat had purchased one truck of Bharat Benz Company  bearing  Model No. 1617-MD from the Provincial Trucking(India) Private Limited , Amravati Road, Gondkhairi who was the dealer.  It is further not in dispute  that  the complainant  had also  duly registered the truck with the   Road Transport  Officer(Rural), Nagpur. It is also not in dispute  that the complainant  had taken  insurance policy  for the truck  from opposite party- TATA AIG General Insurance Co. Ltd and the  period  of policy  was from 25/07/2019 to 24/07/2020 and  insured value of the truck was Rs. 21,20,000/-.

 7.         It is argued by Mr. Kshirsagar, learned advocate for the complainant that  immediately after  the accident  the  complainant  had not only given due  information  about the accident  to Police Station but had also duly  informed  the Insurance Company namely TATA  AIG General Insurance Co. Ltd but still  the  opposite party /insurance company  had not  processed  the claim of the complainant and had also not taken  any steps  to repair  the truck purchased by the complainant.  In order to  support this contention Mr. Kshirsagar, learned advocate for the complainant  has drawn our attention  to the copy of  F.I.R. dated 15/03/2020 it clearly  shows that  the accident  had taken place   on 15/03/2020 and on the same date  complainant – Mr. Ranapratap Dahat had also  duly  informed  the opposite party.  Bare perusal of the copy of First Information Report (F.I.R.) shows that the truck owned by the complainant    was loaded with 87000 Kg.  of Cotton and  when it was sliding the truck turn turtle  and  the entire body of the truck  was damaged. The complainant has also placed on record one copy of report to Police Inspector of Police Station, Bhokar. The complainant has further placed on record copies of mails to show that due intimation was given  to the insurance company/opposite party.  It is  submitted by Mr. Kshirsagar, learned advocate for the complainant  that  the truck was towed  to Provincial Trucking (India) Private Limited and Provincial Trucking (India) Private Limited had inspected the vehicle  and had given the  estimate  of Rs. 18,87,607/- and  copy of  estimate  was also on record.  On the basis of the aforesaid  documents  it is  argued  by Mr. Kshirsagar, learned advocate for the complainant  that  it was  the  insurance company  was also under  obligation  to sent the surveyor and thereafter  to obtain the report.  According to the complainant it was also  the obligation  of the insurance company to repair  the  vehicle and see that  vehicle is  in a road worthy  condition.  The complainant  has taken  a plea that  the body  of the truck was completely damaged and truck was lying ideal with Provincial Trucking(India) Private Limited and the  complainant  was required to  demurrage    charges  at the rate of Rs. 500/- per day.

 8.         Mr. H.N. Verma, learned advocate has appeared for the  opposite party-. insurance company namely TATA AIG General Insurance Co. Ltd. and  has rebutted  the contentions.  Firstly it is contended by Mr. H.N. Verma, learned advocate for the opposite party that the complainant was not at all a Consumer and in fact complainant – Mr. Ranapratap Dahat was a business man and was dealing in the business of transport.  Further the complainant was having fleet of trucks and the complainant has purchased the truck in question only for business purpose and not for self employment.  However, we shall deal with this aspect subsequently.

 9.         So far as  the contention of the complainant  towards repair is concerned the opposite party has taken  a specific plea that  the opposite party had sought  permission  and  consent  of the complainant  to dismantle  the engine as well as chassis to ascertain  the loss but the  complainant  himself  refused  to give any  consent  for the same and therefore,  the surveyor could not carry out inspection  and could not proper  estimate.  In this regard Mr. H.N. Verma, learned advocate for the opposite party had drawn our attention to the copies   of  e-mails sent by the complainant  and  exchanged between both  the parties.  The learned advocate for the opposite party has drawn our attention   specifically to the mail dated 07/06/2020 sent by the complainant by way of reply. If we go though  the said  mail sent by the complainant, the complainant  has specifically  informed  the opposite party that  he was  not inclined to give  consent for repairs and was only  interested in  replacement  of  parts.  Further  the other  mails sent by the complainant  also shows that  the complainant  himself  did not allow the  inspection  of the truck and  was also not keen on repairs of the truck and  instead  was only asking the  insurance  company to replace the parts and  therefore,  proper  survey could not be conducted by the surveyor.  The complainant  has taken  the plea that  there  was   delay on the part of the insurance  company in carrying  out repairs  and  therefore, has claimed  parking charges at the rate of  Rs. 500/- per day. It is submitted by  Mr. H.N. Verma,  learned advocate for the opposite party that due to this adamant approach of the complainant proper survey could not  be carried  out by the surveyor and therefore, the   survey report  could not be placed on record.  The complainant in rebuttal  has not placed on record any documents  or material  which  could go to show that  the complainant  had given consent  for  inspection  of the truck in the  light of the stand taken by the insurance company.  On the contrary the complainant  has  heavily relied  upon the copy of estimate of Rs. 18,87,607/-  given by the Provincial Trucking(India) Private Limited but it is significant to  note that  though  the  complainant  had purchased the truck from the dealer- Provincial Trucking(India) Private Limited the same has not been  made  the  party in the complaint and no reason is given for  forthcoming. The complainant has  only placed reliance  upon  documents to show that  the  truck was damaged  and  further  vehicle was  parked in  parking premises  for  which  the complainant  was charged Rs. 500/- to Rs. 600/- per day. But the fact remains that no survey report is filed on record and survey could not be conducted for the reasons already discussed earlier for which the complainant himself was responsible. Bare perusal of the correspondence and mails clearly go to show that the complainant himself was not ready to accept the proposal of the insurance company and was asking for replacement of engine and chassis.

 10.       Coming now to the preliminary objection taken by the opposite party, opposite party has contended that  complainant – Ranapratap Dahat cannot be termed as a Consumer as the complainant  had not purchased  the truck for his self employment  or for his livelihood  but  in fact was dealing in the business of transportation and was  also  the owner of the fleet  of  trucks.  Secondly, it is submitted by Mr. H.N. Verma, learned advocate for the opposite party that the insurance policy taken by the complainant also directly supports this stand and has drawn our attention to the copy of the insurance policy. If we go through  the copy  of insurance policy filed by the complainant on record, the same reveals  that  complainant-Mr. Ranapratap Dahat  had  taken  ‘ Commercial  Vehicle Package Policy’  and  the period  of insurance was  from 25/07/2019 to 24/07/2020. No doubt the business is shows as self employment but the policy  was admittedly Commercial  Vehicle Package  Policy.  In view of the documents  on record, we find  much  force in this contention advanced by  Mr. H.N. Verma, learned advocate for the  insurance company/opposite party and  we hold that   complainant – Mr. Ranapratap cannot be  termed  as a Consumer.

 11.       Sum and substance of the entire  discussion  is that  the complainant  has failed  to establish by  cogent  evidence that  the opposite party namely TATA AIG General Insurance Co. Ltd. has  committed  Deficiency  in service or any Unfair trade practice and so we pass the  following order.

ORDER

i.          Complaint filed by the complainant is hereby dismissed. .

 ii.          No order as to cost.

 iii.         Copy of order be furnished to both the parties, free of cost.