In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/123/2021.
Date of filing: 29/09/2021. Date of Final Order: 26/07/2024.
Md. Jabbar Hussain
S/o Abdul Razzaque
½, R.B.S Road, Khan Pukur Road, P.O-Angus,
P.S-Bhadreswar, Dist-Hooghly, Pin-712221. - Complainant.
- Vs
- The Divisional Manager,
National Insurance Company Limited,
Chandannagar Divisional Office, 14/128,
Grand Trunk Road, Bagbazar East,
P.O. & P.S. Chandannagar, Hooghly- 712136.
- The Chairman Managing Director,
National Insurance Company Limited,
Head office, 1, Middleton Street, Kolkata- 700016.
- The Deputy General Manager Regional Office- II,
National Insurance Company Limited,
At 8, India Exchange Place, 6th floor,
P.S. Park Street, Kolkata- 700001.
- Mr. Sanjeev Kumar,
53, Hanuman Nagar, Near S.P. Bunglow,
P.S. Purnea, Purnea-854301.
- Mr. Tanmoy Sarkar,
Of 32, Pratapaditya Nagar,
Gorokshabasi Raod, Dum Dum,
P.O. & P.S. Dum Dum, Kolkata- 700028.
- Ms. Soumi,
National Insurance Company Limited,
Chandannagar Divisional Office,
14/128, Grand Trunk Road,
Bagbazar East, P.O. & P.S. Chandannagore,
Hooghly- 712136.
Before: President, Shri Debasish Bandyopadhyay.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant is the absolute owner of a vehicle no.WB-29A/7203, being chasis no.MB1KADWC0DPYH4025. Sometime in the month of March 14 2020 the driver of the complainant namely Md. Gaffar Hussain was driving the said vehicle from Patna to Dhupguri, but at about 6:30 a.m. the driver noticed one truck coming at a rapid speed in negligent manner from the opposite side and to avoid collision with the said truck the driver of the said vehicle took extreme left turn but because of the wet land and minor rainfall the rear wheel of the said vehicle got bogged down in to the road side soil leading to heavy damage to the said vehicle externally. The entire incident took place near Araria Bihar. After the said incident the driver immediately called his agent the OP-6, and informed the entire incident. Thereafter some time the said OP-6 called the said driver and asked him to unload the truck as soon as possible because that might cause more damage to the said vehicle. That upon instruction of the OP-6 the driver of the said vehicle unloaded the truck which was full of potatoes.
After sometime the driver received a call from the OP-4 who introduced himself as a spot surveyor of “National Insurance Company Limited”, and asked the place of accident for the purpose of spot survey and the driver upon his query provided him the full details of accident place. It is pertinent to mention here that the said OP-4 put the condition before the driver and the complainant that he will visit that place only if he will get a sum of Rs.10000/- only but after much effort from the complainant the amount was settled at Rs.4200/- only and then the said OP-4 visited the place of accident and took the pictures of the said vehicle and other relevant place. As per the mutual understanding between the complainant and OP-4 the complainant paid a sum of Rs.4200/- only. After completion of all the formalities the complainant was informed from the office of the OP-1 to bring the said vehicle to Serampore (West Bengal) and to take all possible steps to repair the said vehicle and the total amount will be disbursed at the time of submission of the entire bill. Upon advise of OP-1 the complainant taken the said vehicle in garage for the purpose of repair of damages caused to the said vehicle. It is pertinent to mention here that the complainant had paid a sum of Rs.457265/- only.
As per the instruction from office of the op no. 1, the complainant had submitted all the bills and requested for immediate release of funds but the complainant was shocked to receive the information from the office of the op no. 1, that no fund will be released till the surveyor (op no. 5) will visit to make the survey of the said vehicle and submit its report. Finding no other alternative the complainant agreed to wait for more time. It is further pertinent to mention here that at this point of time also the complainant was assured that it is just a formality and the complainant will receive the amount as per the bills submitted by the complainant a sum of Rs.457265/- only. The complainant approached the OPs several times but on each and every occasion the complainant was asked to wait for more time and the employee of valued office always assure that the complainant will receive the amount of Rs.457265/- only.
While the complainant was waiting for the OP-5 to conduct the final survey but neither the OP-5 nor any of its agent of his office had visited to make survey of the said vehicle on the other hand the complainant was shocked to receive the letter dated 09.03.2021 from the office of the OP informing the complainant that there is no merit in the claim of the complainant for settlement.
Complainant filed the complaint petition praying direction upon the opposite party to refund to pay a sum of Rs. 457265/- with @ 18% per annum and to pay a sum of Rs.1500000/- for damages and to pay a sum of Rs.100000/- for litigation cost.
Defense Case:- The opposite party Nos. 1 to 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that considering the survey report as would be relied on by the answering OP’s as the claim was not settle worthy, the divisional manager of Chandannagar division of National Insurance Company vide letter dated 09.03.2021 clearly intimated the complainant that under the premises of section-1, point-1 sub point-VI of standard form of Commercial vehicles package policy “the company will indemnify the insured against loss or damage to the vehicle insured hereunder and it’s accessories whilst thereon: by accidental external means” and so he stated therein that thus policy covers only those damages which are caused by any impact only the subject vehicle by an external accident means but on the face of the survey report (both spot as well as final) that any loss to the subject vehicle arising out of external accidental means was absent and hence in view of the reasons the complainant was intimated that the insurance company were unable to find merit in the settlement of the claim of the complainant and that necessitated the repudiation of the claim.
The complainant is not consumer under the Consumer Protection Act because “Consumer” means any person who buys any good 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……… So here in this case the vehicle was a huge commercial vehicle (truck) and hence the owner thereof cannot be construed to be a consumer under the provision of Consumer Protection Act and thus he is not entitled to any relief under that Act before this Ld. Commission.
No cause of action at all arose for filling the case and in the above premises the complainant is liable to be dismissed.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
All the points of considerations are clubbed together and taken up for discussion jointly as the questions involved in the above noted points of considerations are inter-linked and / or inter-connected with one another and also for the reason for convenience of discussion in respect of the above noted issues.
For the purpose of arriving at just and proper decision in respect of the above noted points of considerations, there is urgent necessity of making scrutiny of the material of this case record as well as examination of the evidence on record.
This District commission after going through the material of this case record and evidence on record finds that the complainant purchased the vehicle no.WB-29A/7203(truck) with commercial license. T he papers and documents relating to the above noted vehicle are also reflecting that the complainant purchased the above noted vehicle for commercial purpose. But fact remains that the complainant side has adopted the plea that the complainant has purchased the said vehicle for running business of transportation of goods for the purpose of earning his livelihood and also for self-employment. In support of such point of contention the complainant has adduced evidence by way of furnishing evidence on affidavit. But fact remains that the said evidence on affidavit has not been corroborated by any other witness. In this regard it is the settled principle of law that to come within the meaning of “Consumer” as defined in the Consumer Protection Act 1986 he will have to establish that services were availed exclusively for purposes of earning his livelihood by means of self-employment. This legal principle has been observed by Hon’ble Apex Court in the case of Shrikant G. Mantri Vs. Punjab National Bank and it is reported in II (2022)CPJ9(SC). In this regard this District Commission has already observed that there is no corroborating evidence to support of complainant’s plea that he is running the said vehicle for the purpose of earning his livelihood and for self-employment. Moreso the complainant has failed to produce any cogent document such as Income Tax return, Sales Tax return, GST return etc. to establish the above noted issue. So the complainant’s above noted plea that he is running the said vehicle and / or purchase the said vehicle for earning his livelihood is bereft of any cogent evidence and so the complainant is not coming under the definition of “Consumer’ as per provisions of section 2(1) (d) and section 23 of Consumer Protection Act 1986. It is crystal clear that the complainant has purchased the above noted vehicle for commercial purpose. Considering all these aspects this District Commission is of the view that this instant complaint case is not maintainable in the eye of law.
Moreover the complainant has failed to produce any ex pert opinion to establish the fact that the accident of above noted vehicle has caused external damage of the said vehicle. Thus the complainant has failed to contradict the report which has been submitted by Surveyor of Op Insurance Company. In this regard it is also important to note that the complainant has neither prayed any expert opinion before this District Commission nor submitted any expert report to set aside and / or contradict the report of Surveyor of the OP Insurance Company. This matter is also highlighting that the complainant has failed to establish his case that his above noted vehicle has sustained external damage due to road traffic accident.
A cumulative consideration of the above noted discussion goes to show that the complainant has failed to establish his case in respect of all the points of considerations which have been adopted in this case. Under this position this District Commission has no other alternative but to dismiss this case on contest.
In the result it is accordingly
ordered
that the complaint case being no. 123 of 2021 be and the same is dismissed on contest.
No order is passed as to cost.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
