CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/513/15

          Date of Institution:-    19.10.2015

          Order Reserved on:- 04.07.2024

                    Date of Decision:-      09.12.2024

IN THE MATTER OF:

Sh. A. Singh, Director

M/s Computer Land

U-199, Main VikasMarg

Shakarpur, Delhi

.….. Complainant

VERSUS

The Oriental Insurance Company Limited

Divisional Office No.23

2/13-14, SaraiJullena,

New Delhi

.…..Opposite Party

Suresh Kumar Gupta, President

1. The complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter referred to as Act) with the allegations thathe is Director of M/s Computer Land. He is earning his livelihood by dealing with retail trading of all types of laptops, printer and desktops of Hawett Packard (HP)for more than two decades. He was approached by the OP for taking insurance of the showroom with stocks against various risks especially of burglary and allied perils and got renewed the policy no.272100/48/13/2547 from 31.01.2013-30.01.2014. During the intervening night of 2/3.11.2013 a burglary/theft took place in the showroom upon whichintimation was given to the Police and FIR no.1124/2013 under section 380/457 IPC PS,Skakarpur, Delhi was lodged. The intimation was also given in writing to the OP. The value of stolen property was Rs.1237690/-. OP has appointed Alka Gupta andas surveyor. The spot was inspected and photographs were taken. The statements of the staff were recorded. A report dated 11.09.2014 for a loss of RS.1049703/- was given by surveyor. He has provided details of the stock, quotations, cash memos, account record, bank statement, balance sheet, profit and loss account statement etc. to settle the claim. He has provided details within reasonable time for the quick settlement of claim. A letter dated 17.12.2014 was sent to surveyor and OP by him and that loss assessed is not accordance with the documents provided by him and requested to reassess the loss. The surveyor again asses the loss and revised the amount to Rs.11,24,202/-. His loss was sizeable. The OP approved the claim of Rs.414842/- but he has denied to signed the claim as settled. No amount has been released till date by OP. The settlement of claim of a sum of Rs.4,14,842/- is grave in justice to him. Hence, this complaint.

2. The OP has filed the reply to the effect that complainant is running a commercial organization so is not a consumer under the Act. Clause 12 of the General Conditions of het policy gives the definition of burglary“the terms Burglary and/or House breaking shall mean theft of property from the premises described in schedule to the policy following upon felonious entry of the said premises involving entry into or exist from the insured premises by forcible and violent means or theft by a person in the premises who subsequently breaks out by violent and forcible means". The subject matter needs detailed enquiry and examination of witnesses which is beyond the purview of this Commission. The loss has taken place on 02.11.2013 but intimation was given on 04.11.2013 and documents in piece meal manner were supplied in August, 2014 to surveyor.The complainant has taken the policy against the stock of goods covering godown having stocks of all kinds of computer peripherals, laptops, accessories, software,printer and other similar goods lying at U-199 Main VikasMarg, Shakarpur for a sum of Rs.20 lakh along with fixtures for Rs.5 lakh. The surveyor was appointed to assess the loss and report dated 16.09.2014 was filed. The loss was assessed the loss at Rs.4,14,842/-.The said loss was approved. The complainant was informed who objected to it and requested vide letter dated 17.12.2014 to give an opportunity to submit more documents. The documents were given by the complainant which were looked by the surveyor and revised report of loss of Rs.9,28,816/- was given.The claim of Rs.414842/- was passed. There is no deficiency of service.

3. The complainant has filed the rejoinder wherein he has reiterated the stand taken in the complaint and denied the averments made in the written statement.

4. The parties were directed to file the evidence.

5. The complainant has filed his own affidavit in evidence wherein he has corroborated the version of complaint and placed reliance on the documents the C-1 to C-5.

6. The OP has filed the affidavit of Sh. Ajay Soni, in evidence wherein he has corroborated the version of written statement and placed reliance on the documents Ex.R-1 and R-2.

7. We have heard the Ld. Counsel for the complainant as time was given to the OP to address the arguments but OP did not turn up to address the arguments.

8. The OP has taken preliminary objection in the reply that complainant was running a commercial activity so complainant is not a consumer as commercial activity is out of the Act though complainant has taken the plea that he was earning his livelihood by running the computer shop.

9. The plea of the complainant that he was earning his livelihood by running the showroom cannot be accepted.

10. The commercial purpose has not been defined under the Act but it can be deduced from the catena of judgmentsdelivered by Hon’ble Apex Court and Hon’ble High Courts.

11. In Laxmi Engineering works vs PSG Industrial Institute (395) 3 SCC 583, it was held by their lordship that whether the purpose for which a person has bought the goods is a commercial purpose within the meaning of definition of expression consumer under the Act is always a question of fact and to be decided in the facts and circumstances of the case.

12. In LilawatiKirtiLal Mehta Medical Trustvs Unique Shanti Developers and Ors.(2020) 2 SCC 265,this Court culled out broad principles for determining whether an activity or transaction is for a "commercial purpose" or not, while holding that though no strait jacket formula could be adopted in every case.

"19. To summarise from the above discussion, though a strait jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is for a commercial purpose":

19.1. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, "commercial purpose" is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

19.2. The purchase of the good or service should have close and direct nexus with a profit-generating activity.

19.3. The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

19.4. If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of "generating livelihood by means of self-employment" need not be looked into."

13. In Shrikant G. Manti vs. Punjab National Bank, this court observed thus-

“50. It is thus clear, that this Court has held that the question, as to whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, '"commercial purpose" is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit-generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. It has further been held that if the dominant purpose behind purchasing the good or service was for the personal use and the Consumption of the purchaser and/or their beneficiary, or s otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of "generating livelihood by means of self-employment" need not be looked into."

14. In RohitChaudhary&Anr. VsVipul ltd., (2023) 14 SCR 394, it was held by their lordship that the expression commercial purpose has not been defined under the Act. In the absence thereof, we have to go by its ordinary meaning. Commercial denotes pertaining to commerce (Chambers 20^th Century Dictionary) it means connected with or engaged in commerce, merchentile having profit as the main aim (collin’s English dictionary) relate to or is connected with trade and traffic or commerce in general and is occupied with business and commerce.

15. The dominant purpose of purchasing the goods has to be seen. If the dominant purpose is a profit motive, then such a person will not come within the ambit of “consumer”.

16. The complainant is running a computer showroom. The stock like computer peripherals, laptops, accessories, software, printer and other similar goods were kept in the godown by the complainant. The complainant is running computer showroom and kept the goods in the godown. The dominant purpose has to been seen i.e. whether complainant was running the showroom for generating some kind of profit. The running of showroom and keeping the stock in the godown shows that complainant was engaged in the trade and commerce. He is occupied with the business and commerce with profit as his aim.The complainant is running business related activity to earn an economic profit.It cannot be said that he was running the showroom to earn his livelihood. This was a purely commercial activity. The complainant running a commercial activity so he cannot be said to be a “consumer” under the Act.

17. The complainant is not a consumer so complaint under the Act is not maintainable.

18. In view of aforesaid discussion, the complaint of the complainant is dismissed.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 09.12.2024.