IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Sri P.Das
Member
District Consumer Disputes
Redressal Forum, Sonitpur
Smti S.Bora
Member
District Consumer Disputes
Redressal Forum,Sonitpur
CONSUMER COMPLAINT NO.12/2017
Mr Kishandeo Mahato : Complainants
S/o Ramjash Mahato
Resident of Vill: Talakabari
P.O & P.S: Jamuguri,
Dist: Sonitpur,Assam
Vs.
1.New India Assurance Co.Ltd. : Opp. party
Tezpur Divisional Office, Dist: Sonitpur
2. The H.D.F.C Bank Ltd, Tezpur : Proforma O.P
Parmeshwari Building,Tezpur
Near Himmatsingka Petrol Pump,Tezpur 784001
Dist: Sonitpur, Assam
Appearance:
Mr Sudesh Kr.Singh, Advocate. : For the Complainant
Mr Pramod Ch Sarmah, Advocate. : For the Opp. party No.1
Mr Pramjeet Singh Sethi, Adv : For Proforma O.P No.
Date of argument : 01-11-2017,10-11-2017&
14-12-2017
Date of Judgment : 26-12-2017
J U D G M E N T
- Brief of the facts stated under the complaint are that on 28-01-2016,while the complainant’s Bolero Pick Up 2WD vehicle bearing registration No.AS-12-AC-3594 was returning to Tezpur (Assam) from Sela (Arunachal Pradesh) with the driver and helper on board, three unknown persons standing by the roadside, stopped the vehicle and forcibly boarded the vehicle despite refusal of the driver to give lift to them. It has been alleged that refusal to give lift tantamount to inviting the wrath of people of such areas because of thin movement of vehicle in the hilly areas and under such circumstances the driver was compelled to give the lift. Unfortunately at a place viz.,Senge Baisakhi at around 6.30 , the vehicle due to steering failure, suddenly fell into a deep gorge about 200 metre deep from the main road claiming the lives of two persons on board the vehicle and injuring the others in the occurrence.The vehicle also could no longer be retrieved from the gorge despite recovery efforts made.Insurance claim under the Policy of the opposite party was accordingly made with Surveyor appointed who drew its report as of total loss.But the claim was repudiated on ground of carrying excess persons more than its capacity. Challenging the ground of repudiation insofar as the capacity of the vehicle being 2523 CC and the weight of the persons travelling in the vehicle being much lesser, the complainant is thus before the Forum for deficiency in service on the part of the opposite party praying the IDV of the vehicle at Rs.5,70,618/- with 12% interest thereon plus compensation of Rs.1,00,000/- plus Rs.10,000/- as cost of litigation.
- Opposite party No.1 contested the case by filing written version. Contending that the Complainant is not a ‘Consumer’ as defined under the Act, and asserting that the repudiation has been made on justified ground for violation of Policy condition, the opposite party has prayed for dismissal of the complaint.
- Complainant has tendered his evidence-in-chief on affidavit exhibiting as many as 9 (nine) documents thereunder. Opposite party declined to adduce evidence of any witness and preferred to remain content by cross-examining the complainant.
We have carefully considered the facts leading to the complaint and materials on record including case of the opposite party and evidence and draw up the following points for determination of the dispute.
POINTS FOR DETERMINATION
(i)Whether Complainant is a “Consumer” u/s 2(1)(d) of the Consumer
Protection Act ?
(ii)Whether by repudiating the claim made by the Complainant, the opposite
party Insurance Company rendered deficient service to the Complianant?
(iii)Whether the Complainant is entitled to get any relief ?
DECISION ON THE POINTS WITH DISCUSSION
4.POINT NO.(i) Opposite party Insurance Company resisted the case of the Complainant alleging that Complainant is not a “Consumer”as defined in the Consumer Protection Act.
- Forwarding his argument in the matter, learned Advocate Sri P.C Sarmah appearing for the opposite party submitted that the vehicle is a transport vehicle for carrying goods and the same was driven by a paid driver.According to the opposite party, the vehicle was not used for self employement. Hence, the Complainant does not fall within the definition of “Consumer”u/s 2(1)(d) of the Consumer Protection Act. Learned advocate has placed reliance on the following judgments passed by the National Consumer Disputes Redressal Redressal Commission in-
- Consumer Case No.1924 of 2016 reported in 2017(1)CPR 436(NC) “Sushil Chaudhary vs. Bhasin Infotech & Infrastructure Pvt Ltd”.
- Revision Petition No.3010 of 2012 reported in 2016(4)CPR 200(NC) “M/s Manikbag Pvt. Ltd vs. Rajaram Mahadev Nilajkar”
- Revision petition. No.2145 of 2015 reported in 2017(2)CPR 713(NC) “Raja Visindas Ramchandani vs Tata Motors Ltd”.
- Placing reliance on the judgment of Madan Kumar Singh(Dead) through L.R vs. Disrict Magistrate, Sultanpur & Others (2009) 9 Supreme Court Cases 79 rendered by the Hon’ble Apex Court, learned Advocate Sri S.K. Singh refuting the argument forwarded by Mr. Sarma, contended that the Complainant had purchased the vehicle to earn his livelihood.Engaging a driver to drive the same does not ipso facto take him out of the definition of Consumer.
- Complainant, evidently failed to make any averment in the complaint that the vehicle was purchased to earn his livelihood. But in evidence on affidavit, he stated,”That to earn my livelihood, I purchase a Bolero Pick Up 2WD by availing of finance from H.D.F.C Bank,Tezpur Branch”.He confirmed his above evidence during examination by the Forum. He stated that he had no other vehicle apart from the one involved in the case and he had no other business for earning livelihood. He stated that earlier he had made his living as a Handcart puller and the vehicle in question was the first and only vehicle he owned.
- Explanation to Section 2(1(d) of the Consumer Protection Act explained the meaning of “Commercial purpose.
Explanation to Section 2(1)(d) provides that –
“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 exclusively for the purposes of earning his livelihood by means of self-employment”.
- Having regard to the discussion made above more particularly, the evidence of the Complainant and following judgment of the Hon’ble Apex Court relied on by Mr.Singh as referred to above, we hold that the Complainant is a “Consumer” u/s 2(1)(d) of the Act.
10.POINT NO.(ii): Opposite party repudiated the claim of the Complainant on the ground of violation of Policy Condition by carrying excess persons than its carrying capacity.
11. Complainant in his complaint and evidence stated “That I sent my vehicle with freights to be dropped at Sela in Arunachal Pradesh.The driver along with his helper went to Sela with the vehicle carrying the freight. On 28-01-2016 while returning after unloading the freight, three unknown persons standing beside the roadside forcibly took
lift stopping the vehicle.They were coming towards Bomdila which falls on way from Sela
to Tezpur.The driver of the vehicle refused to give them lift but they refused to listen to the sound advice of the driver. People of that area becomes aggressive as in the hilly areas of Arunachal Pradesh there is thin movement of vehicle on the road especially of passenger vehicle. People ask for lift in any kind of vehicle and refusal to give lift is nothing but to invite the wrath of such people asking for help”.
12. To substantiate his such claim, Complainant failed to examine either the driver or the helper.
13. Learned advocate Sri Singh, appearing for the Complainant, advancing his argument on the Point, submitted that in the Report (Ext-6) of the Surveyor appointed by the Insurer, it is clearly stated “It is a normal practice in Arunachal Pradesh that people use to take lift from vehicle en route. It is happened due to very poor communication system of that state. Moreover, it is a normal practice in that state that the people take the help of any vehicle on road to travel here and there. The driver cannot refuse them out of fear of assault.Practically it is not on the control of the insured or his driver while travelling in that state”.
14. Mr Singh also contended that proximate cause of accident was due to steering failure and not because of carrying excess persons.Accident was not the outcome of any negligent act even.There was no breach of Policy condition. He has placed reliance on the judgment of the National Consumer Disputes Redressal Commission reported in (2000) 1 CLT (NC) 232 (United India Insurance Co.Ltd. vs. Surjit Singh Asai) and judgment of Madhya Pradesh State Consumer Disputes Redressal Commission reported in (2002)1 CPJ 321 (Smt Usha Pavaiya vs. United India Insurance Co. Ltd. & Anr.) and judgment of Uttaranchal State Consumer Disputes Redressal Commission, Dehradun, reported in (2003) 3 CPJ 426 (Oriental Insurance Co. Ltd. vs. Vijoy Kr. Gupta).He vehemently contended that even if there being excess carriage of passengers, a claim can be awarded as the accident had not occurred on account of excess passengers. The accident occurred as a result of mechanical breakdown. There was no nexus of the accident with the excess carriage of passengers.
15. We have gone through the above referred judgment, report of the Surveyor and documents of the vehicle. As per Final Survey Report (Ext-6) the vehicle, at the relevant time of accident, was driven by Sri Anand Thapa with Driving Licence No.TWG/Prof/8326/08. The Licence was issued on 09-09-2008
by the DTO Tawang and valid upto 23-09-2016 authorising the person to drive M/Cycle,LMV & MGV. The class of vehicle is evidently a LMV.
16. The Hon’ble National Consumer Disputes Redressal Commission in the judgment of Surjit Singh Asai referred to above, which is followed by Madhya Pradesh Commission in Smti Usha Pavaiya’s case attended similar situation and expressed views as under-
“The cause of accident is not attributable to excess passengers carried by the bus. Under these circumstances,we are of the view that the Insurance Company was not right in repudiating the claim of the insured merely because the bus was carrying excess passengers when the cause of the accident was totally unrelated to carrying of excess passengers. For example, if the bus was struck by lightening and destroyed, could the Insurance Company refuse to pay on the ground of overloading. Surely not. The Insurance Company could not refuse to pay on the ground of overloading when it did not have any connection at all with collapsing of the bridge”.
17. Regarding the reason of carrying excess persons the Surveyor has noted the version of the insured, but report shows that neither the driver nor any other person was examined by the Surveyor.
18. Be that as it may, in the case of Usha Pavaiya the State Commission, considering the fact of breach of condition by carrying excess passengers, awarded compensation on non-standard basis (i.e. 75% of the admissible claim).
19. Having regard to the discussion made above and in the light of judgment referred to above, we are inclined to decide both the Points No.(ii) &(iii) in favour of the Complainant.
O R D E R
Consequently, the complaint stands allowed. IDV of the vehicle undisputedly was Rs.5,70,618/-. The vehicle was totally damaged in the accident. For the reasons stated above, compensation is assessed at Rs.4,27,964/-(75% of Rs.5,70,618/-)only Complainant is entitled to get the aforesaid amount of Rs.4,27,964/- with interest at the rate of 9% per annum from the date of filing complaint on 27-03-2017 with cost of litigation of Rs.5000/-. Since the vehicle was financed by the proforma opposite party H.D.F.C Bank Ltd., the Insurance Company is directed to pay the amount of compensation by issuing cheque in favour of the proforma opposite party within 2(two) months of this Order. In the meantime, Complainant is to receive Statement of Accounts of dues to the opposite party. Complainant is entitled to receive excess amount of compensation, if any, after adjustment of outstanding dues and cost of litigation. The Insurance Company and the Complainant are to follow necessary formalities as per provisions of law including intimation to the concerned District Transport Officer.
Given under our hands and seal of this Forum this 26th day of December, 2017.
Dictated and corrected by: Pronounced and delivered
( A.Devee)
President (A. DEVEE)
District Consumer D.R Forum,Sonitpur President
Tezpur District Consumer Disputes Redressal Forum Sonitpur,Tezpur
We agree:- (P.DAS) (SMT.S.BORA)
Member Member
