State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Delhi Baroda Rd. Carriers (P). Ltd. on 5 July, 2022
FA NO./670/2013 D.O.D.: 05.07.2022
NATIONAL INSURANCE CO. LTD. VS. DELHI BARODA REL. CORNER (P) LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 05.06.2013
Date of hearing: 09.05.2022
Date of Decision: 05.07.2022
FIRST APPEAL NO.- 670/2013
IN THE MATTER OF
NATIONAL INSURANCE CO LTD.,
DRO-II, 2E/9,
JHANDEWALAN EXTENSION,
NEW DELHI.
(Through: Pankaj Seth, Advocate)
...Appellant
VERSUS
M/s. DELHI BARODA ROAD CARRIER PVT. LTD.
(THROUGH ITS DIR. SH. DARSHAN BAWEJA),
23, TRANSPORT CENTRE, AZAD PUR MANDI,
NEW DELHI-33.
(Through: Shenoy Das, Advocate)
...Respondent
DISMISSED PAGE 1 OF 8
FA NO./670/2013 D.O.D.: 05.07.2022
NATIONAL INSURANCE CO. LTD. VS. DELHI BARODA REL. CORNER (P) LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. RAJAN SHARMA, MEMBER (JUDICIAL)
Present: None for the parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case necessary as per the District Commission record are:
"Briefly stated the case of the complainant is that he took an insurance policy for his vehicle bearing registration number HR-
63-C-1557 vide policy cover note bearing
no.360304/31/07/6300004526/07 valid from 23.11.07 to
22.11.08. The vehicle met with an accident on 26.6.08. Office of the respondent was duly informed. A surveyor was appointed by the OP to assess the damage caused to the vehicle. He submitted all the relevant papers for settlement of his claim including copy of FIR, Driving license of driver, National permit etc. In the meantime he handed over the vehicle for repairs to M/s Bafna Automobiles, an authorized service station for Tata motors at Ambagaon (BK) Katraj, Pune. The total repair bill of the vehicle was Rs.4,20,628/-. The bill were also submitted to the authorized surveyor for claim. The claimed amount was curtailed by the surveyor at his own whims and it was not disclosed to the complainant that on what account the amount was curtailed. In para no.8 of the complainant it was submitted that respondent wrongly repudiated the claim and only pass the claim of DISMISSED PAGE 2 OF 8 FA NO./670/2013 D.O.D.: 05.07.2022 NATIONAL INSURANCE CO. LTD. VS. DELHI BARODA REL. CORNER (P) LTD.
Rs.1,16,561/- without assigning any reason hence it committed deficiency in service. Through this complainant prayed that he be paid a sum of Rs.4,20,628/- paid by him towards the repair of his vehicle alongwith compensation of Rs. 1,00,000/-."
2. The District Commission after taking into consideration the material available on record passed the order dated 13.03.2013, whereby it held as under:
"We have perused the surveyor report which is very detailed and he estimated the claim at Rs.1,16,561/- after making deductions under different heads. In the remarks column he observed that the repairer had agreed to the assessment and consent of the complainant was obtained for that amount. Respondent placed on record photocopies of two letters addressed by it to the complainant whereby before making the payment they asked for estimate of repairs, goods challan and name of the bank. We have perused this document. Once the vehicle stands repaired and its final bill was submitted to the respondent, where was the necessity of estimate to be given to the respondent for settling the claim. Neither it is explained that for what purpose goods challan was required by the respondent for settling the insurance claim. Third document asked for by the respondent was bank account number of the complainant where this money was to be credited. These are all flimsy grounds on which the claim was filed as no claim. If the account number was not given by the complainant, a cheque could have been issued in favour of the complainant and in our considered opinion we don't think that goods challan, estimate of the cost of repair was required at the DISMISSED PAGE 3 OF 8 FA NO./670/2013 D.O.D.: 05.07.2022 NATIONAL INSURANCE CO. LTD. VS. DELHI BARODA REL. CORNER (P) LTD.
stage of settling the claim. At least the amount assessed as loss by the surveyor of the respondent should have been paid to the complainant immediately. He filed the final bill showing that he made the payment of Rs.4,20,628/- to the workshop for getting the vehicle repaired. Complainant was entitled to the amount assessed by the surveyor immediately on filing the claim and though no claim' letter by the respondent was filed alongwith written reply, but the surveyor in its report gave the remarks that the consent of the complainant was obtained for settling the claim at Rs.1,16,561/-. If the complainant wants more money to be paid to it, then it has to approach the Civil Court because this forum cannot substitute its own opinion for the opinion of the surveyor and loss assessor. Hence we hereby order that respondent shall pay a sum of Rs.1,16,561/- within 30 days from the date of receipt of this order alongwith interest 9% p.a. A sum of Rs. 15,000/- is awarded as compensation. If the complainant wants that he should be paid more than the amount assessed by the surveyor, he is at liberty to approach the Civil Court for recovery of the balance amount."
3. The Appellant/ Opposite party has challenged the aforesaid impugned order on the ground that the District Commission has erred in observing that the Respondent is eligible for claim as the Respondent is not covered under the definition of 'consumer' as defined in the Consumer Protection Act, 1986 and further submitted that Appellant is not liable to reimburse any claim to the Respondent. Pressing the aforesaid submission, the counsel for the Appellant prayed for setting aside the impugned order of the District Commission.
DISMISSED PAGE 4 OF 8 FA NO./670/2013 D.O.D.: 05.07.2022
NATIONAL INSURANCE CO. LTD. VS. DELHI BARODA REL. CORNER (P) LTD.
4. Notice was issued to the Respondent/Complainant to file reply to the present Appeal. However, the reply has not been filed by the Respondent within stipulated time. Therefore, right of the Respondent to file reply to the present appeal has been closed vide order dated 08.12.2016.
5. We have heard the counsel for the parties and perused the material available on record.
6. The only question of consideration before us is whether the Respondent will come under the definition of 'consumer' as defined under Consumer Protection Act, 1986.
7. To decide this issue, we deem it appropriate to refer relevant provision of the Act with regard to definition of 'Consumer' as defined in Section 2(1)(d) which is as follows:
"(d) "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 DISMISSED PAGE 5 OF 8 FA NO./670/2013 D.O.D.: 05.07.2022 NATIONAL INSURANCE CO. LTD. VS. DELHI BARODA REL. CORNER (P) LTD.
commercial purposes;
Explanation.-- For the purposes 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."
8. It is thus clear from the aforesaid that for filing a complaint before the Commission, the complainant has to be a 'consumer' as defined under Section 2(1)(d) of the Act or he hires or avails of any service for a consideration paid.
9. We find that the Act is a special statute enacted with the purpose of providing a speedy and simple redressal to consumer disputes and if the definition of 'consumer' is expanded so as to include such a person who avails of such services for any commercial purpose, the very purpose of this Act would be defeated. From the definition of 'consumer' as defined under Section 2(1)(d)(ii) and explanation, it is lucidly clear that whenever a person avails any services for commercial purposes, he would not be a consumer under the Consumer Protection Act, 1986.
10. Further, we deem it appropriate to refer to Civil Appeal no. 12322 of 2016 titled as Lilavati Kirtilal Mehta Medical Trust vs. Unique Shanti Developers and Ors. decided on 14.11.2019, wherein, the Hon'ble Supreme Court while dealing with the similar issue has followed these principles to determine whether any activity or transaction will come under the purview of commercial purpose or not, the relevant portion has been reproduced herein for the ready reference:
"7. To summarize from the above discussion, though a straight- 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':
DISMISSED PAGE 6 OF 8 FA NO./670/2013 D.O.D.: 05.07.2022
NATIONAL INSURANCE CO. LTD. VS. DELHI BARODA REL. CORNER (P) LTD.
(i) 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.
(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.
(iii) 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.
(iv) 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."
11. From the above settled law, it is clear that the question, whether a transaction is for a commercial purpose or not, would depend upon the facts and circumstances of each case and also, the purchase of goods and services should have some close and direct nexus with the profit generating activity.
12. However, in the present case, the insurance policy was taken by the Respondent to indemnify the losses which may occurred to the insured vehicle. Therefore, the services availed by the Respondent could not be treated as Commercial transaction. Hence, the Respondent will come under the definition of 'Consumer' as provided under Consumer Protection Act, 1986.
13. Further, on perusal of record before us, it is noted that the other contentions raised by the appellant in the present appeal were already DISMISSED PAGE 7 OF 8 FA NO./670/2013 D.O.D.: 05.07.2022 NATIONAL INSURANCE CO. LTD. VS. DELHI BARODA REL. CORNER (P) LTD.
taken into consideration by the District Forum before passing the impugned judgment. The District Forum had thoroughly answered all the contentions raised by the appellant in negative.
14. Infact, we are also in agreement with the reasons given by the District Forum and fail to find any cause or reasons to reverse the findings of the District Forum. Consequently, we uphold the judgment dated 13.03.2013 passed by the District Consumer Disputes Redressal Forum- III, Janakpuri, New Delhi - 110058.
15. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
16. FDR, if any be released in favour of the Appellant.
17. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusalof the parties.
18. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER (JUDICIAL) Pronounced On:
05.07.2022 DISMISSED PAGE 8 OF 8