C.F. CASE No. : CC/11/48
COMPLAINANT : M/s Loknath Enterprises,
Represented by its Proprietor Sri Swapan Dutta
S/o Late Shib Shankar Dutta,
Vill. Rabindranagar, P.O. Chakdaha,
P.S. Chakdaha, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) The Branch Manager,
Central Bank of India,
Chakdaha Branch,
N.S. Road, P.O. & P.S. Chakdaha,
Dist. Nadia
- The Branch Manager,
The New India Assurance Co. Ltd.
A/13(S) Kalyani, Kalyani Branch - 512402
- The Manager,
The New India Assurance Co. Ltd.
Registered & Head Office 87, Mahatma Gandhi
Road, Font, Mumbai – 400 0o1,
PRESENT : SHRI SHYAMLAL SUKUL PRESIDENT-IN-CHARGE
: SMT JHUMKI SAHA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 29th June, 2012
: J U D G M E N T :
The present case was registered on the basis of a complaint filed by M/S Loknath Enterprise, a proprietary shop, located at Dr. Debendra Chak, Rathtala, Chakdaha, Nadia, related to a claim arising out of five and Allied Perils Policy, subsequently to a fire occurring on 05.08.09 and supposed denial of insurance claim in part therefore OP No. 1 & 2 namely M/S New India Assurance Company Ltd. with Proforma OP namely Central Bank of India, with whom given stock of goods of the complainant was hypothecated. Admittedly, the complainant was engaged in dealing in wholesale business of tea. The complainant’s shop was located within the market in the midst of a cluster of shops. The complainant’s shop was covered by Fire and Allied Perils Policy bearing No. 512402/48/08/34/00000371 for the period from 01.10.08 to 30.09.09 where insurance coverage included stock of tea and furniture, fixture fittings. Since the stock of tea was hypothecated to Central Bank of India, Chakdaha. Central Bank was also made proforma opposite party against whom, however, no relief was claimed. The incident of fire took place at night and as a result complainant suffered extensive damage and loss of nearly all the stock-in trade, furniture fixtures and electrical installations and also for the building. Immediately local police station was informed but fire brigade was not informed and the fire was extinguished by some people at the locality. The entire incident of fire was reported and recorded with Chakdaha Police Station under G.D. No. 266055/8/09 dtd. 05.08.09. The OP No. 2, Branch Manager, the New India Assurance Company Ltd, Kalyani Branch, was intimated immediately about the incident and a Surveyor was appointed forthwith who conducted a preliminary survey and submitted his report with a note that some relevant papers including balance sheet as prepared by the Chartered Accountant with relevant stock statement, sale and purchase vouchers were not given to him. The complainant filed its claim of Rs. 1,93,250/- for total loss of stock-in-trade furniture and fixture and so on 10.09.2009. On 05.03.2010 the surveyor again surveyed and assessed the loss to the tune of Rs. 26,690/-. On 10.09.2009 the OP No. 2 deposited a cheque of Rs. 26,690/- in the bank account of the complainant. Being dissatisfied and aggrieved with such a meager amount the complainant has to take recourse to law by filing petition of complaint praying for a decree for Rs. 1,93,250/- against the OP No. 2 on account of loss of damaged materials by fire and two lac as compensation for harassment, mental agony and loss in the business deal to inordinate delay in settlement of the claim.
On being served the OP No. 2 and 3 namely the New India Assurance Company Limited entered appearance and contended, inter alia, that insurance company took exceptional prompt and sincere action by appointing Surveyor on 07.08.09 asking the surveyor to carry out preliminary physical inspection of fire affected loss and other related aspects. The surveyor visited the spot and submitted his report with specific comments that the complainant did not give him sale and purchase vouchers, sale memos. The purchase sale and stock register were not maintained in standard format by the complainant. So the surveyor could not identify and quantify the nature and quality of goods lost / destroyed due to fire. The OP further pleads that OP issued a letter dtd. 15.03.10 asking the complainant to produce the requisite records and books related to his business to the OP, otherwise the dispute would not be redressed properly. Denying that there is deficiency in service on the part of the OP at any stage pointing out to its promptness in engaging surveyor immediately after the incident and in adhering to the report by such authority the OP has humbly submitted that the complainant is liable to be dismissed.
The matter was heard from respective sides with filing of evidence, questionnaires and replies thereto.
D I S C U S S I O N
Section 2(d)(i)and (ii) of the Consumer Protection Act, 1986, as amended is as under –
“(d) "Consumer" means any 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 purposes;
Where in the explanation it is provided that “for the purposes 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”.
In the instant matter the complainant is proprietor of a tea shop engaged in dealing in wholesale business of tea, purchases of which were made from dealer / agents of tea companies and resold to various vendors from the averments and in evidence there is no pleading or proof whatsoever that the complainant conducted business on self-employment or earning his livelihood.
In I (2005) CPJ 27 (NC), Harsolia Motors vs. National Insurance Co. Ltd., the Hon’ble National Commission, inter alia, decided as under:
“Consumer Protection Act, 1986 – Sections 2(1)(d), 2(1)(o) – Consumer – Service – Commercial purpose – Insurance policy taken by commercial units – Whether excluded from purview of C.P. Act – Complainants availed service of Insurance Co. for commercial purpose – Complaint dismissed by State Commission as not maintainable – Hence appeal – Hiring of services of Insurance Company by complainants who are carrying on commercial activities cannot be held to be a commercial purpose – Policy is taken for reimbursement or indemnity for loss which may be suffered due to various perils – No question of trading or carrying on commerce in insurance policy – Contract of insurance generally belongs to general category of contract of indemnity – Services may be for any connected commercial activity, yet it would be within purview of Act – Commercial purpose means goods purchased or services hired should be used in activity directly intended to generate profit which is the main aim of commercial purpose – Where goods purchased or services hired in activity which is directly not intended to generate profit, it would not be commercial purpose – Person who takes in to cover envisaged risk not takes policy for commercial purpose – Policy is only for indemnification of actual loss, not intended to generate profit – Appeals allowed – Order of State Commission set aside – Matter remitted back for being decided on merit.”
This position underwent revisit in judgment in case of First Appeal No. 84 of 2008, B.S.E.S. Rajdhani Power Ltd. v. M/S. Saraf Project Pvt. Ltd., decided on 07.08.2009, and Meera Industries v. Modern Constructions, reported in II (2009) CPJ 402, where consequent upon amendment of Consumer Protection Act, 1986 in 2003 it was held as under:
“A person who avails of such services for any commercial purpose is excluded ………..”
“……..Therefore, even the service availed for commercial purpose is excluded from the scope and ambit of consumer.”
In the facts and circumstances of the complaint case under adjudication we find that the foregoing judgement of the Hon’ble National Commission is aptly applicable and thus the complainant namely, Loknath Enterprise cannot be regarded as a Consumer for the purposes of any adjudication under Consumer Protection Act, 1986, as amended.
In this regard our attention has been drawn to the Case No. CC/56/2009 of Hon’ble State Commission, West Bengal where in a Misc. Application under number MA-263/09 arising out of the complaint case, this Commission held, inter alia, “….considered the law referred to by the OP/Appellant in the two judgments cited by him. The position in law appears to have been settled by the said two judgments that after the amendment of Section 2(d)(ii) of the Consumer Protection Act, the definition of consumer has undergone a change and in respect of any cause arising after 15.3.2003 the complainant is not a consumer if the Service Provider’s service has been taken for a commercial purpose. In the present case on facts it is apparent that contract was taken by the complainant for construction and maintenance of the road. Therefore, coverage of the policy being in aid of maintenance of the road, the same is a commercial purpose. No case has been made out that the complainant enjoys the benefit of the explanation i.e. the contract was for self-employment and for earning livelihood. Therefore, the complainant here is not a consumer and the complaint is not maintainable.” Considering the facts and circumstances of the present case the same view may be taken for adjudication of the dispute.
In above view of fact and law the complaint is liable to be dismissed on contest without cost.
Hence,
Ordered,
That the complaint is dismissed on contest without cost. The subject matter of the complaint, however, has not been decided on merit and the complainant will be at liberty to bring any other proceeding on the subject matter before appropriate Forum if it so chooses.
Let a copy of this judgment be delivered to the parties free of cost.
