BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

CACHAR :: SILCHAR

Con. Case No. 31 of 2017

                    Md. Aktar Hussain Laskar,

                    S/O Lt. Isab Uddian Laskar, Vill. Sonabarighat P.O. Sonabarighat Pt-II,

                    P.S. Silchar, Dist. Cachar, Assam ……………………………………….       Complainant.      

-V/S-

            1.         The National Insurance Co. Ltd.

                        (Represented by the Divisional Manager,The National Insurance Co. Ltd.

                        Club Road, Capital Travels Building, Silchar-1

                        Dist. Cachar, Assam                                                                                 O.P No.1.

            2.         Sri Ratan Lal Kurmi,

                        C/o Divisional Manager, The National Insurance Co. Ltd.

                        Club Road, Capital Travels Building, Silchar-1

                        Dist. Cachar, Assam                                                               Proforma  O.P No.2.

            3.         The Branch Manager, Tata Motors Finance Ltd.,

                        Holding No.16, Ground Floor, beside Surana Motors

                        N.S. Avenue, Silchar-5                                                                       Proforma  O.P No.3.

Present: -                                Sri Bishnu Debnath,                                               President,

District Consumer Forum,

                                                Cachar, Silchar.                                             

                                                             Sri Kamal Kumar Sarda,                                         Member,

                                                             District Consumer Forum,

                                                            Cachar, Silchar.                                            

            Appeared :-                 Mr. Rajat  Ghosh,  Advocate for the complainant.

                                                Mr. Debasish Som, Advocate for the O.P.

                                Date of evidence………………………………   19-07-2016, 16-01-2017

                               Date of written argument……………………    08-08-2017, 05-01-201            

                               Date of oral argument………………………      27-03-2018

                                Date of judgment……………………………      07-06-2018

JUDGMENT AND ORDER

                                          (Sri Bishnu Debnath) President

1. Md. Aktar Hussain Laskar (complainant) brought the complaint under the provision of Consumer Protection Act 1986 against the National Insurance Co. Ltd. and 2 (two) others for award of compensation including direction to insurance company to pay sum insured of vehicle which was brand new and insured for the period from 14/08/2014 to 13/08/2015 vide insurance policy No. 5527003114630084951. The complainant stated inter-alia that he purchased a Tripper bearing Regd. No. AS-11BC-5826 on financial aid of Tata Motors Finance Ltd. for ₹ 16,97,960.00 and insured the vehicle for value of ₹ 16,42,839. But on 28-08-2014 i.e. after 14 days of purchasing the vehicle has been stolen away by unknown miscreant, which was kept stationary in front of the house of the complainant. The vehicle was kept stationary under proper lock and key for want of permit. The permit was under process to issue with effect from 1^st week of September,2014.
2. However, FIR lodged before the Silchar P/S vide Silchar P/S Case No.2195/2014 U/S 379 IPC. The Matter of theft was intimated to insurance company on the following date of incidence. The police investigated the case and submitted FR and complainant submitted NCRB Report dated 16-09-2015 to the insurance company. Nevertheless, the insurance company also investigated after receiving the claim by engaged investigator Sri Ratan Lal Kurmi (Proforma O.P No.1) but vary surprisingly the claim has been repudiated vide letter dated 27-10-2016 on the plea that the insured vehicle has been used in public place without valid permit.
3. Being aggrieved with the repudiation letter, the instant complain brought for relief stated therein.
4. The insurance company submitted W/S. In the W/S took plea that the complaint is not maintainable in the Consumer Forum because the complainant is not a Consumer as per the definition of “Consumer U/S 2(I) (d) and the instant dispute is not a consumer dispute because the insured vehicle was a commercial vehicle. Not only that but also stated that the complainant did not take all reasonable step to safeguard the vehicle on the relevant night of alleged theft and as such violated the policy condition No.5. Moreover, the complainant violated the provision of Section 66 (I) of the Motor Vehicle Act for using the vehicle in public place without permit.
5. During hearing, the complainant submitted deposition supporting affidavit and also exhibited some documents including FIR and FR in connection with Silchar P/S Case No. 2159/2014, Vehicle Enquiry Report, (NCRB Report), Claim repudiation letter etc. The insurance company also submitted deposition of Sri Suroj Kr. Das, Senior Assistant and exhibited letter of repudiation investigation report dated 24-09-2015 with copy of insurance policy and some other relevant documents.
6. After closing evidence, the Ld. Advocate of the complainant submitted written argument. Similarly the Ld. Advocate of the O.P-Insurance company submitted written argument. However, the Proforma O.P No.1 and 2 did not contest the case. I have heard oral argument of both sides’ counsels and perused evidence on record including written argument.
7. It is admitted fact in view of evidence on record that the vehicle in question was a brand new at the time of insurance, that is why in the insurance policy vide Ext-G and Ext-2. Registration number was not mentioned except engine number and chassis number. However, prior to the date of alleged theft, the formality for registration of the vehicle, performed by the complainant and accordingly the vehicle has been registered as As-11BC-5826 and same has been informed to the insurer vide Ext-12. Certificate of the D.T.O, Cachar dated 08-12-2015 and repudiation of claim vide Ext-11 and Ext-B respectively. The O.P also exhibited the investigation report vide Ext-H.
8. I have gone through these documents very meticulously concluded that the insurance company has admitted the fact of theft of the insured vehicle but claim is repudiated on the ground of non-producing the route permit.
9. It is a fact in view of evidence on record that after purchasing the vehicle the complainant at first took insurance and then applied for registration. He got the registration of his vehicle in view of Ext-12 but the said certificate is silent about step for obtaining permit. Anyhow, the complainant by deposing on oath tried to establish the fact that the process of obtaining permit was pending before the D.T.O why the vehicle was stolen on late night on 27-08-2014 ie. 28-08-2014.
10. But the O.P took plea that at the time of stolen the vehicle it was used on public place without any permit. The language is not clear as whether the O.P-Insurance company wanted to say that the vehicle was plying on the public path without permit for commercial purpose. But the complainant deposed that he did not ply the vehicle on the public path for commercial purpose rather kept it stationary in front of his house due to non-obtaining route permit. Of course, he further deposed that the process of obtaining permit was pending and would be obtained in the month of November, 2014. On the other hand the O.P did not establish any fact to conclude that on the date of theft the vehicle was plying on the public road for commercial purpose. The Ext-H the investigation report also did not disclose any such fact.
11. Hence, it is clear beyond doubt that the vehicle was not plying on the road for commercial purpose rather kept stationary for want of permit. That is why, the complainant has convincingly made the fact clear as why unable to produce permit. In that aspect, the O.P-Insurance company by referring Sec.66 of M.V Act 1988 stated that if a vehicle is found whether stationary or moving at a place which does not fall on the route it will be contravention of the statutory provisions of the Act unless it falls under exception provided in Sec.66 (3) of the M.V Act 1988. The fact stated above by the O.Ps would be relevant only when there is existing a permit and Complainant without justification violated the terms and condition of the said permit.
12. But on bear reading of the above, it is clear that the said situation may be arise only after issuing the permit. In the instant case the complainant very convincingly stated that issuance of permit was under process.
13. However, Sec. 66 (I) says that no owner of motor vehicle shall use or permit the use of the vehicle as transport vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit granted or counter signed by a Regional or State Transport Authority or any Prescribed Authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used.
14. But in the instant case no such evidence is available in the record to conclude that the complainant after purchase of the vehicle ever used the vehicle to carry goods as a transport vehicle. That is why in the instant situation the provision of Sec. 66 is not violated. Of course, the condition would be violated if he obtained permit but used the vehicle in a route other than the route mentioned in the permit .That is why, the repudiation of the claim on the ground of non-producing the permit is not justified. Anyhow, in this case the O.P took plea that the present dispute is not a consumer dispute and also the complaint failed to take all reasonable safeguard as per condition No.5 of the insurance policy.
15. But in this case when in the letter of repudiation the said plea of violation of condition No.5 of insurance policy is not available, it can be said that the said plea is taken for the sake of depending in this case as additional plea what precaution or safeguard would be taken by the complainant in view of condition No.5 is not clear from the evidence on record. However, the DW deposed that the complainant in his own statement and in ejahar stated that the vehicle was parked at night 11-00 P.M on 27-08-2014 on road side at Sunabarighat Part-II, which means the vehicle was parked under the open sky without security and carelessly. But the presumption of the DW is not based on any established fact. That why in my considered view the O.P-insurance company is unable to establish any specific fact regarding careless attitude of the complainant in respect of keeping the vehicle on the road side. So, the claim cannot be repudiated on the plea of violation condition No.5. of the insurance policy.
16. In this case the O.P-Insurance company took a plea that the present dispute is not a consumer dispute because the complainant used the vehicle for commercial purpose.
17. In this aspect the relevant provision of Consumer Protection Act, 1986 is reproduced herein below :- Sec. 2 (I) (d) define the consumer as  “Consumer” means any person who

1. 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

2. 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 service 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 avail of such services for any commercial purpose.

Explanation  For the purpose of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusive for the purpose of earning his livelihood by means of self-employment.

18. In view of that definition, the Ld. Advocate of the O.P tried to convince this District Forum that the commercial vehicle was insured by the complainant for earning but the said earning is no way to be treated as using the vehicle for the purpose of earning livelihood because the complainant has another source of income. By referring the Ext-H, he stated that the complainant is a manufacturer of steel furniture and his showroom is at Uttar Krishnapur with name and style “Diamond Steel Furniture”. To make the fact believable produced balance sheet of M/S Diamond Steel Furniture for the year ending 31-03-2012, year ending 31-03-2013, year ending 31-03-2014, year ending 31-03-2015 and year ending 31-03-2016 in the name of the complainant along with Ext-H.
19. From those documents it is clear that the complainant has his other source of income for manufacturing of steel furniture since prior to the date of purchasing of insured vehicle. Thus, it is clear that the vehicle was purchased for earning but not earning livelihood by means of self-employment. The Ext-H also revealed a fact that the complainant did not appoint any paid professional driver rather he was driving the vehicle on the relevant night of theft and his D/L No. F/20281/C valid upto 18-05-2016. In that sense it is not confidently concluded that he was not using the insured vehicle for earning his livelihood by means of self-employment. Of course he may have other source of income but no where is in any law contain any prohibitory clause that if any person have other source of income he can not avail any service for the purpose of earning his livelihood by means of self-employment. There is no yead stick to measure income of complainant from other source which exclude himself to use any other service for earning his livelihood by means of self-employment.
20. In the instant case if the complainant himself drives the insured vehicle for earning it cannot be said that he is disqualified for treating his income from insured vehicle for commercial use as earning by means of self-employment. In this aspect the complainant’s advocate by referring the case law of the Supreme Court tried to convince this District Forum that when a vehicle either for personal use or for commercial used insured with insurance company for intention to avail service of insurance company to shift monetary risk on the event of theft or damage of the vehicle or in other ward he insured the vehicle for above purpose only for protection of his property by means of realization of damages from insurer. In that context he referred the decision of the Supreme Court in Om Prakash Vs. Reliance General Insurance Co. (2017) 9 SCC724.
21. In the above referred case a Truck was stolen which was driven by a paid driver. The complainant used that Truck for commercial purpose. However, he insured the Truck with Reliance Insurance Co. and the Truck was stolen during the period of insurance coverage. But the insurance Co. repudiated the claim on the ground of receiving the information of theft belatedly. But Supreme Court held that if the ground for late information to the insurance company is satisfactorily explained the insurance company ought not repudiated the claim on machenical manner because such rejection will result in loss of confidence of policy holder in insurance industry. The Court also held that the object of Consumer Protect Act is to provide protection of interest of consumers, for which it is a beneficial legislation that deserves liberal construction.
22. In Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi (2000)1 SCC98 the Supreme Court considered the provision of Section 2 (I) (d) i.e. ‘Consumer’ and Section 2 (I) (o) i.e. ‘Service’ and held that the combined reading of the aim and object for which the Act was enacted, it is imperative that the words ‘Consumer’ and ‘Service’ as defined under the Act should be construed to comprehend consumer and service of commercial and trade oriental nature only. Thus, any person who is found to have hired services for consideration shall be deemed to be a consumer. Notwithstanding that the services were in connection with any goods or their user. Such service may be for any connected commercial activities and may also relate to the services as indicated in Section 2(I) (o) of the Consumer Protection Act, 1986.
23. That is why Chhattisgarh State Consumer Disputes Redressal Commission in Complain No. 30/2013 (Goodluck Petroleum Co. Pvt. Ltd. Vs. Future General India Insurance Co. Ltd and another) adopted the aforesaid ratio of the Supreme Court and held that service may be for any connected commercial activity, yet it would be within the perview of the Act. Accordingly, aforesaid State Commission decided that dispute between the parties in the litigation is consumer dispute and complainant comes within the perview of consumer U/S 2(I) (d) of the Consumer Protection Act, 1986.
24. In the above referred case fact matrix is as below:-

The complainant M/S Goodluck Petroleum Co. Pvt. Ltd. was running petroleum business. The complainant has taken on insurance for the factory to cover fire and allied perils. The Future General India Insurance Co. Pvt. Ltd. issued the insurance policy and covers the risk against payment of consideration and issued insurance policy. During the insurance cover period due to heavy rain in and around the factory many water bodies around the factory ground level increased and entered into the oil tank and damaged the petrol inside the tank. The complainant submitted claim for loss to the insurance Co. but the claim was repudiated on the ground that complainant is not a consumer as per provision of Consumer Protection Act 1986. But the state Commission decided that with the ratio of the Supreme Court mentioned herein above that the dispute is consumer dispute and complainant is consumer.

25. Thus, in the instant case after consulting evidence on record in entirely it is concluded that the vehicle was insured for commercial purpose to earn money but at the same time the insured vehicle is a property of the complainant and in order to protect that property insurance policy was purchased. Thus, the service which avails from insurance company to in respect of coverage of risk of damage or theft etc. is not at all at commercial service but a service connected to commercial service. Accordingly, the complainant is a consumer and present dispute is a consumer dispute as per provision of Consumer Protection Act 1986.
26. Accordingly, in view of above discussion and finding, it is concluded that the O.P-Insurance company repudiated the claim without justification. As such the insurance company is liable to pay not only sum insured subject to depreciation as per terms and condition of insurance policy but also liable to pay compensation for causing mental agony to the complainant due to repudiation of his claim. By applying my prudent mind I have determined the compensation of ₹ 20,000/- and cost of the preceding of ₹ 5,000/-
27. Of course from the evidence on record it is crystal clear that the vehicle has been purchased with financial aid of proforma (Tata Motors Finance Ltd., N.S Avenue, Silchar) O.P.No.3. Thus, the balance sum insured to be paid to the complainant after adjustment of the outstanding amount of loan with aforesaid financer.
28. The O.P-Insurance Company is directed to satisfy the award within 45 days from today. In default, interest @ 10% P.A.to be added with the awarded amount till realization of the same. Of course, the complainant must put signature of subrogation letter, Acknowledgement etc. if placed by the O.P at the time of payment of awarded amount, so that in future if the stolen vehicle is recovered the complainant cannot claim the vehicle and at the same time it will be property of the insurance company.
29. With the above, this case is disposed of on contest. Supply free certified copy of Judgment to the parties immediately. Given under hand and seal of this District Forum on this the 7^th day of June, 2018.