CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/255/2018
IRC (India) Pvt. Ltd.
IRC House, 846, Joshi Road,
Karol Bagh, New Delhi-110005. …..COMPLAINANT
VERSUS
New India Insurance Co. Limited
Through its Manager
18/7, Keltron Chambers, Karol Bagh,
New Delhi-110005.
New India Assurance Co. Ltd.
Through its Manager,
7, New India Assurance Building,
Ground Floor, M.G. Road,
Fort, Mumbai-400001. …..OPPOSITE PARTIES
Coram : Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
Dr. R.C. Meena, Member
ORDER
Ms. Rekha Rani, President
1. Instant complaint was filed under Section 12 of the Consumer Protection Act, 1986 as amended inter-alia pleading therein that IRC (India) Pvt. Ltd. (in short the complainant) is a company registered under the Companies Act, 1956 and is engaged in the business of transporting goods from one place to another for consideration. Instant complaint is filed by the complainant through Mr. Ramesh Kumar, who is working as its tracking supervisor.
Complainant purchased one TATA Truck (Diesel) having registration no. HR38-U-5798, bearing chasis no. MAT448202FAF06989, engine no. 51F84233124, model no. 2015 from TATA Motors and was insured by New India Insurance Co. Limited (in short OP1) and New India Assurance Co. Ltd. (in short OP2) vide insurance cover note no. 1214043115010059811 for an insured value of Rs. 19,00,000/-.
The vehicle met with an accident in Allahabad on 18.05.2016 and got damaged. Complainant sent claim intimation to the OP at their Mumbai office and requested OP to appoint surveyor for assessing the claim of the said vehicle. Survey was conducted on 21.05.2016. On 26.05.2016, garage survey was conducted regarding estimate cost of repair which was assessed at Rs. 5,44,180/-.
On 27/05/2016, OP gave approval to the service centre to start repair which was completed on 10/08/2016. Cost of repair, Rs. 4,38,768/- was not reimbursed by OP to the Commercial auto Sales, authorized dealer of TATA Motors due to which repaired truck was not delivered on time to the complainant.
There was delay in reimbursing the cost of repairs. OP informed the complainant on 10/09/2016 that driving license of driver was sent for verification. Even after receiving report of verification as Valid, OP did not make the payment of the claim of the complainant. Complainant was paying Rs. 51,300/- towards installment of the vehicle and suffering losses of Rs. 80,000/- per month which was earned by using the vehicle in question out of normal course of business. Vehicle was standing at commercial auto sales and the payment was not released by the OP. Complainant sent a legal notice to the OP on 08/03/2017. OP has not paid the amount. Hence instant complaint was filed seeking direction to OP to pay to the complainant Rs. 13,98,767/- along with interest @ 24% p.a., Rs. 2,00,000/- as compensation for causing mental agony and litigation expenses.
2. OP appeared and contested the claim vide its written statement inter-alia pleading therein that the vehicle in question is a commercial vehicle i.e. a truck and further that the vehicle at the time of the accident was driven by one Abbas who was holding a driving license issued from Nagaland though he never resided in Nagaland. Further it is stated that a circular was issued by Ministry of Transport, Government of Nagaland that all driving licenses which have not been made on smart card after 30.10.2009 are not valid. The driving license of the driver of the vehicle in question was issued on 20.01.2010 which was not on smart card and so was not valid and accordingly on account of fundamental breach of the policy conditions on part of complainant the claim was repudiated.
3. We heard Sh. Puneet Sharma, counsel for complainant. Parties have adduced evidence by way of affidavits and have also filed written arguments.
4. It is complainant’s own case that it is a company registered under the Companies Act, 1956 and is engaged in the business of transporting goods from one place to another for consideration having its office at IRC House, 846, Joshi Road, Karol Bagh, New Delhi.
It is further an admitted case of the complainant that the vehicle in question is used for transporting goods from one place to another for consideration. It is not complainant’s case that it is used for the purpose of earning livelihood by way of self-employment. Complainant in Para 14, Page 12 of the complaint submitted that complainant company is suffering losses of Rs. 80,000/- per month which is earning of the vehicle out of normal course of business as the vehicle is parked at Commercial Auto Sales and the payment is not being released by the OP. It is further stated that complainant was paying Rs. 15,000/- per month to the driver and Rs. 12,000/- to the staff. Therefore it is complainant’s own case that the company is earning Rs. 80,000/- per month from the use of the vehicle out of normal course of the vehicle.
4. Section 2 (1)(d) of the Consumer Protection Act which defines the term ‘consumer’, to the extent it is relevant, reads as under:-
“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;
6. The Supreme Court has discussed the term 'consumer' in the judgment reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held :
"The National Commission appears to have been taken a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit', he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression 'large scale' is not a very precise expression - Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of 'self employment', such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself 'exclusively for the purpose of earning his livelihood ' and 'by means of self-employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer.
Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer".
The purpose behind enactment of the Act was to provide a speedy remedy to small consumers and the Act is not intended for the benefit of large business entities. Therefore, if a transaction of purchase of goods or availing of services is aimed at earning profits or advancing the business activities of the purchaser, such a transaction will be out of the purview of the Act.
7. National Commission in Interfreight Services Pvt. Ltd. Vs. Usha International 1 (1995) CPJ 128 (NC), inter-alia observed that the special remedy before the consumer forums can be invoked only by ordinary consumers, purchasing goods for their private and personal use and consumption and not by business organization buying goods for commercial purposes.
8. In Eicher Motors Ltd. vs Dilip Chandra Kant Vaidya, I (2007) CPJ 51 NC, complainant claimed to be an educated unemployed who purchased two buses from M/s Eicher Motors Ltd. State Commission directed M/s Eicher Motors Ltd. to replace two vehicles by new vehicles of the like nature and in the event of failure, to refund price of Rs. 14,58,000/- with 18% interest thereon from the date of delivery till payment with cost of Rs. 10,000/-. Appeal against the order of the State Commission filed by M/s Eicher Motors Ltd. was allowed by National Commission and it was observed that when complainant purchased two buses, it cannot be said that he could drive both buses without employing drivers. It was not his case that any other family member of the complainant was driving the same. The fact that the buses were in his care would not mean that they were not being run by employees for the purposes of running travel business.
In the instant case also it is complainant’s own case that vehicle in question is being driven from one place to another for consideration and that the complainant has employed a driver and there is other staff also and that the complainant company is earning about Rs. 80,000/- per month by using this vehicle for consideration. It is not complainant’s case that the vehicle is being used by way of self employment for earning livelihood.
9. In Sakthi Engineering Works And Anr. vs Sri Krishna Coir Rope Industry, complainant Sri Krishna Coir Rope Industry purchased machinery for producing coir rope. Andhra Pradesh State Commission directed Sakthi Engineering Works to pay Rs. 3,07,632/-being the value of a machinery to be paid by it to the Complainant with interest at 18% per annum from 01.04.1992 till the date of realisation. A sum of Rs. 50,000/- towards compensation for loss of business and cost of Rs. 2,000/- was also awarded. Sakthi Engineering Works preferred an appeal before National Commission where it was argued that the machinery was purchased for commercial purpose. The appeal was allowed. Complaint was dismissed. National Consumer Disputes Redressal Commission vide its order dated 08th August, 2000 observed that the proprietor himself does not run the machine. He has employed trained personnel to run the machine. In view of Laxmi Engineering Works, National Commission held the complainant not to be a consumer.
10. OP has further taken an objection that driver of the vehicle was holding an invalid license in violation of the Circular issued by Ministry of Transport, Government of Nagaland which is to the effect that all driving licenses which have not been made on smart card after 30.10.2009 will not be valid.
Per contra, learned counsel for complainant has submitted that the surveyor of OP2 had got the driving license verified from the concerned authority and driving license of the driver was found valid at the time of the accident.
11. Since the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act as it is using the vehicle in question for commercial purposes, this Forum cannot adjudicate the claim on merits having held that complainant is not a consumer. Complaint is dismissed being not maintainable before this Forum in view of the judgment of Apex Court in Laxmi Engineering Woks. The complainant may seek other relief in accordance with law and in such a case the complainant can claim benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit or other proceedings. Copy of this order be sent to the parties as per rules. File be consigned to record room.
Announced this of 2019.
