Karnataka

Belgaum

CC/352/2015

Jayasheel N Shetty - Complainant(s)

Versus

The Branch Manager, National Insurance Company Ltd, - Opp.Party(s)

S D Patil

20 Apr 2017

ORDER

            

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.352/2015

Date of filing: 17/07/2015

Date of disposal:20/04/2017

 

P R E S E N T :-

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT       -

Shri.Jayasheel Narayan Shetty, Age: 53 Years, Occ: Business, R/o: Ghataprabha, Tq: Gokak, Dist. Belagavi.                             (Rep. by Sri.S.D.Patil, Adv.)

- V/S -

 

OPPOSITE PARTY   -

The Branch Manager, National Insurance Co., Ltd., 1st floor, OPP. Range forest Office, Bus Stand Road, Gokak -591307.                               (Rep. by Sri.A.S.Patil, Adv.)

 

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to settle the claim by paying an amount of Rs.15,35,266-91 towards the vehicle damages and also transportation charges of Rs.1,50,000/- alongwith interest @ 18% p.a. from the date of said incident to till its realization and Rs.1,00,000/- towards compensation for mental agony and any other reliefs etc.,

 

2.      The facts of the case in brief are that;

 

          It is case of the complainant that, the complainant is the R.C. owner of the Ajax Concrete Mixer Machine bearing Registration No.KA-49/M-2582 and the said vehicle insured with OP/Company under policy bearing No.610201/31/13/630000 5860 valid from 24.01.2014 to 23.01.2015 and further the said vehicle was using to “Mulawad Yataniravari Canal” at Masuti Village, Vijayapur.

 

          It is further complainant contended that, on 16.09.2014 the driver of the said vehicle had operated the said vehicle right from morning to till evening and in the evening, the driver had stationed the said vehicle by the side of the said canal, but there was rainfall on the said day night and due to rainfall the soil beneath to the said vehicle slipped and fell in the canal on the ITACHI vehicle which was stationed in the said canal. Due to the said impact the said vehicle was completely damaged i.e. core mounts P-284 (AVM), Bonnet for engine D-90 maxi etc as mentioned in the invoice dtd: 31.12.2014 issued by the Ajax Floi Engineering Pvt. Ltd., Bangalore and further the Kolhar police have drawn detail panchanama regarding the said incident. After the incident, the complainant has informed to the OP/Company.

 

          It is further case of the complainant that, the complainant brought the said vehicle to Ajax Floi Engineering Pvt. Ltd., Bangalore and got repaired and further the complainant had incurred the expenses of Rs.15,35,266-91 towards the repair and further the transported the said vehicle to the above said company and incurred expenses of more than Rs.1,50,000/- towards transportation and further the complainant had submitted the claim form alongwith all the documents and sought for the damages. But, the OP/Company registered the said claim vide claim No.610201/31/14/63/9000098 and further the OP has issued letter dtd: 17.04.2015 stating that, the policy is not covered overturning risk and claim is not admissible etc.,  and the alleged contention of the OP is completely unrelated and baseless in the eye of law and further the said vehicle was duly insured with OP/Company at the time of incident and the said incident has taken place during the validity of the Insurance Policy and further contended that, the complainant had already submitted all the relevant documents to the OP/Company, but the Op failed to settle the claim of complainant, it amounts to deficiency of service under the provisions of the C.P. Act 1986 and as such the complainant is put to inconvenience and hardship. Hence, having no alternative, the complainant is constrained to file this complaint.  

 

3.      After receipt of said notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant is false, frivolous and vexatious. The complaint of the complainant does not fall under the provisions of the C.P. Act and as such the complaint deserves to be dismissed as not maintainable and further the complainant is a Class I Civil Contractor and a businessman and doing the business of construction of Canal etc with the help of machineries worth crores of rupees and the vehicle in question was also purchased by him and insured with the OP exclusively for commercial purpose.  

 

          It is true that, the vehicle bearing No.KA-49/M-2582 insured with OP/Company and the said vehicle met with an accident on dtd: 16.09.2014 and further the Op company has engaged the surveyor of one Shri.Chandrahas S. Kadlimatti, a licensed surveyor to conduct the spot Survey of the said accident and the said surveyor has visited the spot and meticulously noted down all the damages caused to the said vehicle and submitted the survey report on dated: 25.09.2014 and further the OP/Company has engaged the services of Shri. L.V.Sampat, a licensed surveyor to conduct the Final Survey, who in turn conducted the final survey and submitted his Misc. Vehicle Final Survey Report dtd: 12.03.2015 re-inspection and assessing the net liability of the OP at Rs.8,22,824/- and further the complainant would have received the said amount from the OP after submitting the salvage, provided there was no violation of any of the terms and conditions of the Insurance Policy.

 

          Further case of the Op that, the insurance policy is a contract between the insurer and the insured and its liability is strictly governed by the terms, conditions, exclusions, definitions, provisions etc., and further Op contended that, the complainant is not entitled for any amount under the insurance policy in question, the accident has occurred due to the overturning of the insured vehicle and as per IMT Clause No.47, it has been specifically stated that, the overturning risk is not covered under the policy in respect of the vehicle in question, as the complainant has not covered the risk of overturning by paying additional premium. Hence, the Op had repudiate and treat the claim of the complainant as No Claim and the same was informed through letter dtd: 19.08.2015 to the complainant and there is no deficiency of service on the part of OP. On this count also the complaint of the complainant is liable to be rejected and there is no negligence or deficiency in service on the part of the OP and prayed for dismissal of the complaint.

 

4.      Both the parties have filed their affidavits in support of their case  and on behalf of complainant has produced 09 documents i.e. True copy of Panchanama, Xerox copy of Motor Claim Form, Certified copy of B-Register Extract of KA-49/M-2582, Letter issued by OP dtd: 17.04.2015, Xerox copy of D.L. of Somayya, Zerox copy of Insurance Policy, Copy of repairs bills, Zerox copy of Insurance Policy of L & T vehicle and Zerox copy of Settlement of claim of L & T vehicle which are marked as Ex.P-1 to Ex.P-9, as against this, the OP produced 09 documents i.e. Accident Intimation Report dtd: 17.09.2014, Claim Form, Parts Quotation, Tax Invoices, Repudiation Letter Dtd: 19.08.2015, Spot Survey Report dtd: 25.09.2014, Scrutinisation of Final Bills dtd: 12.03.2015, Motor (Re-inspection) Survey report dtd: 12.03.2015 and Insurance Policy with clauses and IMT endorsement which are marked as Ex.R-1 to Ex.R-9, for sake of our convenience, we have marked P & R series. Heard the arguments on both sides.

 

 

Now, on the basis of these facts, the following points arise for our consideration:

 

1. Whether the complainant is a consumer within the meaning of the C.P. Act – 1986, so as to maintain the complaint against the OP for alleged deficiency in service on the part of OP

 

2. If so, whether the complainant has proved that, there is deficiency in service on the part of the Op?

 

 

3. What order?

 

 

5.      Our findings to the above points are as under:

                              

1. In the Negative.
2. Does not arise for consideration.
3. As per the final order for the following:

 R E A S O N S

 

6.      POINT NO:1:-  We have perused the pleadings of the parties,  the evidence and documents placed on record and the arguments advanced, it is evident that, there is no dispute in respect of ownership of the said vehicle i.e. Ajax Concrete Mixer Machine bearing Registration No.KA-49/M-2582 and the said vehicle was insured with OP/Company under policy bearing No.610201/31/13/630000 5860 valid from 24.01.2014 to 23.01.2015, which is marked as Ex.P-6 and further the said vehicle was using to “Mulawad Yataniravari Canal” at Masuti Village, Vijayapur.  Further, it is not dispute in respect of accident on dated 16.09.2014 at given place.

 

        The case of the complainant is that, on 16.09.2014 the driver of the said vehicle had operated the said vehicle right from morning to till evening and in the evening, the driver had stationed the said vehicle by the side of the said canal, but there was rainfall on the said day night and due to rainfall the soil beneath to the said vehicle slipped and fell in the canal on the ITACHI vehicle which was stationed in the said canal. Due to the said impact the said vehicle was completely damaged, in order to substantiate that, the said contention has not established by reliable evidence and cogent material document to hold that, on said day of accident, the vehicle was stationed as alleged by the complainant, for the reason that, as per complaint, the vehicle was stationed and as per the claim form given by the Complainant to  the OP/insurance company, wherein it is mentioned that “while working in worksite, due to mud slip Ajax Concrete Mixer Machine fell down from upper side on L & T PC 210 machine and both machines got damaged”,    the both version of the complainant is contradict to each other and which version has to be believed, the same has not been  explained to come to conclusion that, on the date of accident, the vehicle was stationed or working.

 

As already stated above, at the first instance, the Op has challenge the very maintainability of the complaint before the consumer forum on the ground that, the complainant is not a consumer, as defined under section 2 (1) (d) of the C.P. Act 1986, as he has purchased commercial vehicle for the purpose of generating profit and not for earning his livelihood, so he is not entitled to maintain a complaint against the Op for alleged deficiency in service. It is important to note that, though the Op has taken such specific contention that, the complainant neither in his affidavit evidence nor in the oral argument had not tried to convince as to how he will become consumer.

 

Further, it is important to note that, it is not the case of the complainant that, he is the driver cum owner of the said vehicle and he has nowhere pleaded in his complaint that, he has purchased the said vehicle for earning his livelihood by way of self employment, so as to claim to be consumer by virtue of the explanation provided to section 2 (1) (d).  

         

          Before going to the merits of the case, it is important to note that to decide, whether the complainant is a consumer or not, by perusing the pleadings of the complaint and available documents produced, this Forum is observed that, it is no doubt true that in order to maintain a complaint U/s 12 of C.P Act 1986 against the Op in regard to alleged deficiency of service,

 

          It is important to note that, as per the averments made in his complaint, the complainant has purchased the said vehicle for his livelihood. In order to prove that, the complainant has purchased said vehicle for earning his livelihood by way of self-employment has not placed any material to hold that, the said vehicle purchased for his livelihood by way of self employment and  mere stating that, the explanation provided by Sec-2(1) (d) and relied few decisions pertains to  said vehicle used for commercial purpose is not suffice to prove the same.  So, his complaint is not maintainable before the consumer forum but his remedy will lies elsewhere. 

 

          Admittedly, the said vehicle value is more than Rs 23,00,000, and naturally and always the said vehicle is used for hiring on rent basis which is nothing but commercial purpose and profit earning only and the complainant has nowhere has been explained as to in what manner the said vehicle was used for his earning livelihood, though self-employment. So, it cannot be said that, complainant is a consumer as per the Act and the matter does not come even under the explanation, Sec 2 (1) (d) which was introduced by way of amendment to the Act that, the commercial purpose did not include use by the complainant, exclusively for the purpose of earning his livelihood by means of self-employment, in that view it will have to be held that, the complaint itself is not maintainable.     In this regard we would like to refer to decision of the Hon’ble Supreme Court reported in I (2011) CPJ 1 (SC), wherein it is held that, the person who purchase the goods or avails of the service for any commercial purposes is not a consumer as defined under the provisions of section 2 (1) (d) (i) (ii) of C.P. Act 1986 and the complaint filed by such complainant is not maintainable after the amendment of the section 2 (1) (d) w.e.f 15/03/2003.

  

        Further, we would like to refer to another decisions of the Hon’ble National Commission reported in 2012 (3) CPR 227 (NC) and also recent decision which has been reported in 2015 (4) CPR 566 (NC), wherein it is held that, excavator purchased not for purpose of earning livelihood by using himself.  Complainant is not a consumer within the meaning of Sec. 2 (1) (d) of Consumer Protection Act, as he is not using the said vehicle for his private use only.    As per the above referred decisions and proposition of law laid down by the  Hon’ble Supreme Court and Hon’ble National Commission, we are of the considered opinion that, the commercial users cannot maintain a complaint before this Forum and the Forum has no jurisdiction to entertain such complaint.

 

          Further more, the OP contended in written version and also in oral argument that, the said vehicle which has been damaged and admittedly said vehicle is commercial vehicle and the policy issued under the coverage of commercial vehicles package policy and further contention of OP that, the said policy has not covered as per IMT Clause No.47, it has been specifically stated that, the overturning risk is not covered under the policy in respect of the vehicle in question, as the complainant has not covered the risk of overturning by paying additional premium, in order to disprove the said contention regarding the policy coverage towards vehicle as commercial vehicle, the complainant has not produced any cogent material documents and not established the case as the said vehicle is not commercial vehicle and further he has not prove that, the said vehicle  is not covered under the commercial package, further the complainant has not proved that, the risk of overturning is covered. So looking to the above observation, we hold that the complainant is not a consumer as defined under the provisions of Section-2 (1) (d) of the C.P. Act, as he did not use the said vehicle for earning his livelihood by way of self-employment.  Hence we answer point No.1 in the Negative, and the question does not arise in respect of point No 2. Under such circumstances it would be not proper for this Forum to record any finding on the point No. 2 on merit and complainant remedy will lies elsewhere.

 

            Further, the complainant merely pleaded that, the complainant had used the said vehicle to earn the livelihood of himself and his family members is not sufficient to hold that, the case of the complainant is come under the perview of C.P. Act 1986 and merely relying a decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi is also not sufficient to hold that, the said vehicle is not a commercial purpose. The relied decisions are as fallows; 

 

 1) III (2008) CPJ 180 (NC),  

 2)2005 (1) CPR 1 (NC),

 3) 2011 (1) CPR 365,      

 4) 2006 (1) CPR 496,

 5) 1998 (1) CPR 6,

 

          The above relied decisions by the complainant are not applicable to this case, with due respect to the Hon’ble National Commission, for the reason that, it is held by the Hon’ble Apex court in view of decision reported in I (2011) CPJ 1 (SC), wherein it is held that, the person who purchase the goods or avails of the service for any commercial purposes is not a consumer as defined under the provisions of section 2 (1) (d) (i) (ii) of C.P. Act 1986 and as already decided on this point, therefore  the complaint filed by the such complainant is not maintainable after the amendment of the section 2 (1) (d) w.e.f 15/03/2003. So, the complainant has failed to establish as alleged in the complaint regarding Consumer.  

 

 

 

            Therefore, the contention of the OP is accepted and it has got merit in the contention.  Accordingly, we proceed to pass the following:

 

O R D E R

 

For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act 1986 is hereby dismissed.

 

No order as to costs.

 

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 20^th day of April, 2017).

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.