Judgment & Order dt. 25.04.2017
Inordinate delay to settle the claim of the complainant by OP No-1,i.e,the Branch Manager, National Insurance co. has galvanized the complainant to file the instant case praying for passing an order of compensation for Rs. 378112/- along with interest thereon.
The facts leading to the filing of the instant case may succinctly be described as follows.
The complainant Subrata Sarkar owns a stage carrier bus bearing registration number WB-61-0845 and this bus is run by him according to route permit granted by RTA,Dakshin Dinajpur. On 16/07/2015, a collision took place between the aforesaid bus and a Tata magic van at Deotala under Gazole PS, district Malda at about 11:40 am and the bus got badly damaged. Gazole PS case no.-372/2015 dt.-18/07/2015 under section 279/338,IPC was started on the FIR lodged on behalf of another vehicle which fell a victim to the accident. On 22/07/2015,the fact of accident was intimated to the OP No-1 by the complainant and claim for compensation was also submitted that day. First survey was also made on the bus on behalf of OP No-1. The vehicle was released from the custody of the police on 27/07/2015 and thereafter the same was taken to a garage at Raiganj on 29/07/2015 for repair and renovation. The vehicle i.e the bus was in the garage from 29/07/2015 to 10/09/2015. By this time, the second surveyor, namely Mr. Asit Ranjan Guha visited the garage at Raiganj on 2 days i.e. on 10/08/2015 and 20/08/2015 for full and final assessment of the damage sustained by the bus. But the bus was not found present in that garage by him. Legal notice was also sent by the complainant to OP No-1 claiming disbursement of the compensation amount, but all these steps fell on the deaf ear of the insurance co. Thereafter,the complainant has filed the instant complaint praying for passing an order regarding cost of damage amounting to RS. 78112/- and also an amount of compensation of Rs. 300000/- for professional loss with interest thereon. Hence,this case.
Both the OP have filed one written statement wherein it is contended interalia that the complainant has not given any intimation of the accident to the insurance company within 24 hours of the accident and that he has thereby violated the terms of the agreement and as such he is not entitled to get the relief as prayed for. Further,it is submitted on behalf of them that the bus which was allegedly damaged was not available for inspection on 10/08/2015 and 20/08/2015 by their appointed surveyor Asit Ranjan Guha. They have been deprived of that right to inspect vehicle prior to settlement of claim of the complainant and as such the complainant is not also entitled to get any compensation from them. The complaint should,therefore, be dismissed in limini.
Upon the avrment of both the parties, following issues are formulated for consideration in the case.
Issues
- Is the complainant a consumer?
- Are the OPs guilty of defficiency in service?
- Has the complainant come before the forum with clean hands?
- Is he entitled to get the relief as prayed for?
Evidence of The Parties
The complainant has filed affidavit-in-chief and has also got himself examined as PW-1. The documents admitted in evidence on his behalf are marked as Exihibit No 1,2,3,4,5 series.6 series and 7,as detailed in the list of documents kept in the record. On the other hand,some documents have been filed on behalf of the OPs and those are marked as Exhibit Nos. A,B,C,D series and E, also detailed in the list of the documents kept in the record.
DECISION WITH REASONS
Issue no-1:-
The first and foremost condition for maintainability of a case of such ilk is that the complainant must be a consumer within the meaning of section 2(1)(d),CP Act,1986. Nothing has been argued on behalf of the OPs to the effect that the complainant is not a consumer. An in-depth scrutiny of the complaint and also the evidence on record, it is abundantly clear before us that the complainant can in no way be regarded as a consumer within the meaning of CP Act. The “Explanation” added to section.2(1)(d),CP Act,1986 w.e.f. 15/03/2003 has laid down that a person who conducts business for commercial purpose can be regarded as a consumer if he conducts the said business by himself for earning his livelihood by means of self employment. In the case of Laxmi Engineering Works vs. P.S.G Industrial Institute, reported in 1995 AIR 1428,an elaborate discussion on the subject has been made. It has been held therein that when a person uses a car as a taxi having driven the same by himself is a consumer, if he does that thing for earning his livelihood. But, on the other hand, if he runs the taxi by another person, he will not be regarded as a consumer, even if it so happens that he earns his livelihood thereby. Three things have to be present within the person, if he wants to become a consumer in case of business for commercial purpose. These are:- 1) Goods bought must be used by him or her,2) Those goods must be used by him/her exclusively for the purpose of the earning livelihood,3) Such livelihood will be earned by means of self-employment. If any one of these three conditions is not fulfilled a person buying anything or any service for commercial purpose will not be regarded as a consumer.
Coming to facts of the instant case, it is found that the complainant is the owner of a bus. The bus runs under a route permit regularly. It is stated in the complaint and also in the affidavit of the complainant that he earns money as his own livelihood by plying the bus. Mere earning livelihood by plying a bus does not entitle a person to be a consumer within the meaning of section.2(1)(d),CP Act,1986. He will be regarded as a consumer only when he proves that he earns his livelihood by means of self-employment by running the bus. There is neither any averment nor any evidence of the complainant that he runs the bus by himself by means of self-employment. On the contrary, it is available on record that the bus is driven by a driver whose name appears on the seizure list of police a copy of which is admitted in evidence herein. It also transpire in evidence of the complainant that the bus is driven by a driver,viz.,Narayan Mohanto.
It is not in the evidence of complainant that he runs the bus by himself having taken the assistance of one or two other persons. Regard being had to all these facts and circumstances, we make no scruple to say that the complainant is not a consumer.
Hence, this issue goes primarily answered against the complainant.
Issue no-2:-
It has been contended on behalf of the insurance company that the complainant has not observed the terms of the agreement with the insurance company and as such he is not entitled to any claim from the insurance company. According to the submission of Ld. Lawyer for the insurance company, the complainant is duty bound in terms of the agreement to send a copy of the FIR to the insurer and also an intimation regarding the accident to the insurer immediately after the accident. The complainant did not lodge any FIR before the concerned PS immediately after the accident which allegedly took place on 16/07/2015 and that the intimation of the alleged accident was also given to the insurer on 22/07/2015 i.e. about 6 days after the date of accident. So, to him, the complainant is not entitled to get any claim satisfied by the insurer, i.e. the OPs. Ld lawyer for the complainant has submitted that the FIR was lodged on behalf of the another vehicle involved in the accident and therefore the question of the FIR being lodged by the complainant on the self same incident does not at all arise. He further submits that the intimation of the accident has been given to the insurer within 6 days of the accident and this cannot be regarded as an inordinate delay. The complainant has fulfilled the terms of agreement, as goes his submission, and is therefore, entitled to have the claim satisfied by the OPs.
The insurer and the insured both are bound by the terms of the insurance agreement. It is trite law that any agreement must be observed strictly by the parties thereto. In the instant case the complainant alleged that the accident took place on 16/07/2015. He did not lodge any FIR before the concerned police.Such an act on the part of the complainant appears to be a deficiency in discharge of his duty,especially when the agreement provides that a copy of FIR is to be sent to the insurer to sustain any claim against the insurer. Even, the complainant has not filed any copy of the FIR before this forum and therefore it is not clear whether the accident actually took place on the alleged date and in alleged manner. We feel constrained to make such a remark for the reason that the seizure list(exbt-3) shows that a specific PS case was started on 18/07/2015. That apart, the intimation about the accident was given to the insurer about six days after the alleged accident. There is no explanation whatsoever furnished by the complainant for causing such a delay in sending the intimation to the insurance company. Under such circumstances, it is manifestly clear before us that the complainant has not observed the terms of insurance agreement to the letters and insurance company cannot be held guilty of deficiency in service for not settling the claim of the complainant ,because it is the complainant himself who has committed breach of the contract. Hence, this issue also goes answered against the complainant.
Issue No-3:-
On browsing the materials on record, it is found that the complainant has not come before the forum with clean hands. His conduct appears to be not beyond the pale of doubt. According to the complainant, his damaged vehicle was in Raiganj garage from 29/07/2015 to 10/09/2015. It is so stated by him in his affidavit-in-chief also and garage certificate(exbt-7). But, one document i.e. the recovery van bill dated 02/09/2015,which has been filed by the complainant himself, has taken the gilt off the ginger bread of the complainant’s case. The said bill is marked as exbt-6(6) and it goes to establish that the vehicle of the complainant was taken to Raiganj garage from gazole PS on 02/09/2015 by one Dulal Saha. The complainant has also admitted during his cross examination that on 02/09/2015 the damaged vehicle was taken by Dulal Saha from gazole PS to Raiganj. Now it is as clear as daylight that the complainant has indulged in giving misleading statement before the forum that the vehicle was in Raiganj garage from 29/07/2015 to 10/09/2015. It is now crystal clear as to why the second surveyor of the insurance company did not find the vehicle in Raiganj garage during his visit on 10/08/2015 and 20/08/2015. The complainant did not lodge any FIR before the concerned PS. Even he does not file any copy of the FIR before the forum. Even he did not send any copy of the FIR to the insurer. He does not have any explanation for not performing all these duties. It appears to us that the complainant wants to gain something unlawfully in secret manner and therefore he has been giving inconsistent statement from time to time.
Again, one bill,exbt.-6(5) and one garage certificate (exbt-7) and another bill dated 07/08/2015(exbt-6) have been filed by the complainant. Exbt-6 is issued on 07/08/2015 and it is issued by one Dhanbar Ali(PW-2). PW-2 has proved his signature on exbt-6 and exbt-7. He himself has stated in his cross-examination that the vehicle was brought to his garage on 02/09/2015. If this be so, the estimate bill i.e. exbt-6 proves that it was issued by PW-2 without inspecting the damaged vehicle. In garage certificate(exbt-7),it is mentioned that the vehicle was in the garage from 29/07/2015 to 10/09/2015. But the fact as goes proved is otherwise and it stands proved that the vehicle was brought to the garage on 02/09/2015. So,we do never feel any hesitation to say that the complainant has not come before the forum with clean hands and that he has indulged in prevaricating the actual truth in collusion with PW-2. Regard being had to all these,we do hold that the complainant has started a game of light and shade, real and unreal, true and false. He is not entitled to get any relief from the forum. Hence,this issue also goes answered against the complainant.
Issue No-4:-
To sum up, the complainant is not a consumer. It is he who has violated the terms of insurance agreement. He has not come before the court with clean hands. Attempt is made on the part of the complainant to mislead the court. The OPs are not guilty of deficiency in service. In the circumstances and in view of facts and evidence as on record, the complainant appears to be not entitled to get any relief as prayed for.
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest with costs.
Let a plain copy of this order be furnished to the parties forthwith free of cost.
