State Consumer Disputes Redressal Commission
M/S Bhagwandas Vyapar Udyog Limited, A ... vs The New India Assurance Company Ltd., ... on 3 January, 2014
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET, KOLKATA 700 087 S.C. CASE NO FA/639/2012 (Arisen out of Order Dated 21/08/2012 in Case No.CC/101/2010 of Unit-II, Kolkata DF) DATE OF FILING :19.09.2012 DATE OF ORDER:03.01.2014 APPELLANTS : M/s Bhagwandas Vyapar Udyog Limited, A Company within the meaning of the Companies Act, 1956 having its registered office at 194, S.P. Mukherjee Road, Kolkata-700 026, Represented by Ajoy Dixit RESPONDENTS : 1. The New India Assurance Company Ltd. 87, M.G. Road, Mumbai-400 001. 2. The Manager, Grievance Cell, The New India Assurance Company Ltd., 4, Mangoe Lane, Kolkata-700 001. 3. The Divisional Manager, The New India Assurance Company Ltd., 17, Ganesh Chandra Avenue, Kolkata-700 001, Hare Street. 4. The Directorate, Insurance Regulatory and Development Authority, 5, Parliament Street, 1st Floor, Gate No.3 Jeevan Tara Building, New Delhi-110 001. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. FOR THE APPELLANT : Mr. Debesh Halder, Ld. Advocate FOR THE RESPONDENT No.2 : Mr. Soumendra Nath Ganguly, Ld. Advocate Sri Debasis Bhattacharya , Member
This appeal is directed against the order dated 21.08.2012 passed by the Ld. District Forum, Unit-II, Kolkata in Case No. 101/2010. By the impugned order, the Ld. District Forum has dismissed the case on contest but without any cost. Being aggrieved and dissatisfied with the same, the Complainant thereof has preferred this appeal.
The case of the Complainant is that it was the registered owner of a Taxi bearing no. WB-04C-0909 and it was covered under insurance of the OP Insurance Company up to 2004 of a sum assured of Rs.3,20,000/-. On 12.02.2004, the said Taxi was in the custody of one Sanjoy Kumar Chowdhury, which was plied by one Driver, namely, Gopal Yadav. But, on 12.02.2004, the said Taxi was not handed over till midnight by the said Driver and the said Driver could not be traced out. Accordingly, one missing diary was lodged on 13.02.2004 at Bhowanipore P.S. Subsequently, the said Driver returned back without the Taxi, but could not give the exact information as to the said Taxi. So, a written complaint was lodged at Bhowanipore P.S. on 15.02.2004, who started Case No. 44 dated 15.02.2004, u/s 408, I.P.C. against Gopal Yadav for criminal breach of trust in respect of the said Taxi, in which Charge sheet No. 29/2006, u/s 379/408, I.P.C. was filed before the Ld. Chief Judicial Magistrate, Alipore, but on trial, he was acquitted. On 04.04.2008, the Complainant further lodged claim before the Ops being No. 03/115. But, Ops remained silent. Thereafter, the Complainant wrote letters on 14.02.2009 and also on 03.03.2009 to the OPs, to which only OP No.4 gave a reply assuring the Complainant in regard to the settlement of the claim. But, the Ops remained silent over the issue. Accordingly, the case.
On the other hand, the case of the OP Insurance Company is that the Complainant being admittedly a private limited company is engaged, inter alia, in the business of transport like leasing taxi to different persons and thereby earning profits, and so the Complainant does not fall within the definition of the Consumer, u/s 2 (d) (ii) of the C.P. Act, 1986. Further, it is apparent and crystal clear that the F.I.R. maker being Sanjoy Kumar Chowdhury, @ Sanjoy Chowdhury lodged the complaint stating that he permitted Gopal Yadav to run his Taxi bearing registration no. WB-04C/0909 for rent and complained against the said Driver for breach of trust. It is also indicative of the fact that the Complainant admittedly permitted the said Sanjoy Kumar Chowdhury, @ Sanjoy Chowdhury of the custody of the said Taxi, and to use the same for hire and reward, i.e., for commercial purpose, and since the said lessee is not the insured, the claim would fail. The OP engaged its Investigator to survey the entire incidence and the resulting claim and the investigation was left unfinished as the Complainant could not show up to the relevant query and thus the OP has no option but to close the file as no claim for want of necessary papers. Accordingly, it prayed for dismissal of the case.
It is to be considered if the impugned order suffers from any anomaly as to law and facts so as to make a reversal of the same, or not.
Decision with reasons.
Ld. Advocate for the Appellant has submitted that the impugned order is bad in law as it held that the vehicle being run for business and for commercial purpose, the claim of the Complainant is not maintainable, in view of the settled principle of law enunciated by Honble National Commission in the case of Harsolia Motors Vs. National Insurance Co. Ltd., reported in I (2005) CPJ 27 (NC), that commercial purpose means that the goods purchased or services hired, should be used in any activity directly intended to generate profit, as profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity, which is not directly intended to generate profit, it would not be commercial purpose. He has also referred to a decision of this Commission in FA/260/2010 which followed the said decision of the Honble National Commission. He has also referred to a decision of this Commission in FA/122/2011, in which it was held that the Appellant Company is a consumer inasmuch as the supply of electricity to a consumer for the purpose of manufacturing business cannot be said to be for commercial purpose. He has also referred to two decisions of the Honble National Commission, reported in III (1996) CPJ 22 (NC) and 2012 (4) CPR 121 (NC), in which it was held unequivocally that a complaint by a Company registered under the Companies Act, 1956 is a consumer complaint and maintainable. He has also referred a decision of the Honble National Commission, reported in IV (2010) CPJ 95 (NC) in this matter. He also further relied upon a decision of Honble Supreme Court, reported in 2000 (1) CPR 93 (SC) to reinforce the plea that in appeal no new plea can be advanced and it cannot be taken note of, in view of certain documents filed by the Respondent along with its BNA.
Ld. Advocate for the Respondent Insurance Company has submitted that the relevant F.I.R. was not made by the insured, but by one Mr. Sanjoy Kumar Chowdhury, who is the present actual owner of the relevant Taxi, but his name has not been stated in the insurance policy. The Complainant only filed the claim before the Insurance Company. As the vehicle was commercially employed and not in the custody of the insured, but that in the hand of Sanjoy Kumar Chowdhury, the claim is not permissible. It was never said by the Complainant to the Insurance Company that the vehicle was given in lease, for which the underwriting would have been different. Arrangement with the said Sanjoy Kumar Chowdhury was not known to the Insurance Company, who claimed that it is his vehicle. Further, initially the case was not registered for theft and F.R.T. was made in the case by the Police. He has relied upon O.41, R.33, read with S.107 of the Civil Procedure Code, which is an extension of O.41, R.27 of the Code, in order to consider the documents filed along with its BNA.
First of all, it is to be said that the insurance made by the Complainant with the OP Insurance Company is not to generate profit, and so it was wrong on the part of the Ld. District Forum to hold the case not maintainable on the ground of commercial purpose of the Complainant Company, as per established principle of law given out by the Honble National Commission in the case of Harsolia Motors Vs. National Insurance Co. Ltd., reported in I (2005) CPJ 27 (NC). Further, there is no document to show the relationship of lessor and lessee in between the Complainant and the said Sanjoy Kumar Chowdhury @ Sanjoy Chowdhury. The ownership of the vehicle still lies with the Complainant, and as such said Sanjoy Kumar Chowdhury @ Sanjoy Chowdhury cannot also be said to be the owner of the same. In absence of any document regarding transfer of ownership and lease agreement, the claim made by the Complainant is valid and entertainable by the Insurance Company. Suspicion, howsoever, strong it may be, cannot take place of proof, as per the decision cited by the Appellant of the Honble National Commission, reported in IV (2010) CPJ 95 (NC). Admittedly, the chargesheet has been filed by the Police u/s 379/408 of the I.P.C. The case of theft of the said Taxi cannot be ruled out.
In the facts and circumstances, and also in observance of the decision of the Honble Supreme Court in the case of National Insurance Co. Ltd. Vs. Nitin Khandelwal, Appeal (civil) 3409 of 2008, reported in 2008 (7) SBR 63, that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and breach of condition is not germane. It is considered that the Complainant is entitled to a sum of Rs.3,20,000/- (Rupees three lakhs twenty thousand) as per the insurance policy, but to no other reliefs. Accordingly, the impugned order cannot sustain.
Hence, ORDERED That the appeal be and the same is allowed on contest against the contesting Respondent Insurance Company and ex parte against the others. The impugned order is set aside. The Complainant is entitled to a sum of Rs.3,20,000/- (Rupees three lakhs twenty thousand) from the OP Insurance Company, which is to be paid by the said Insurance Company to the said Complainant within a period of 45 days, in default it will accrue interest @ 6% p.a. thereafter till the payment. The complaint is thus allowed in part.
MEMBER