State Consumer Disputes Redressal Commission
Asraful Haque, S/O Abu Bakkar Hazi @ Hazi ... vs The Oriental Insurance Co. Ltd. & Anr. on 13 June, 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/933/2012 (Arisen out of Order Dated 05.11.2012 in Case No. CC/58/O/2011 of District Birbhum DF) DATE OF FILING : 05.12.2012 DATE OF ORDER:13.06.2014 APPELLANT : Asraful Haque, S/o Abu Bakkar Hazi @ Hazi Abu Bakkar of Village-Rajgram Purba Bazar, P.S. Murarai, District-Birbhum. RESPONDENTS : 1. The Oriental Insurance Co. Ltd., Represented by the Branch Manager, PO + PS Suri, Dist.-Birbhum. 2. Tata Motors Finance Co. Ltd., Represented by Manager, TMFL, Siliguri Branch, PO-Siliguri, West Bengal. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANT : Mr. S. Acharya, Ld. Advocate ROR THE RESPONDENT No.1 : Mr. Debasish Bhandari FOR THE RESPONDENT No.2 : Mr. Rajtilak Ghosal, Ld. Advocate. Sri Debasis Bhattacharya , Member
This appeal is directed against the order dated 05.11.2012 passed by the Ld. District Forum, Birbhum in Case No. 58/2011, by which the case has been dismissed on contest, with liberty given to the Complainant to pursue before in other Forum or in Civil Court, except the Consumer Court. Being aggrieved and dissatisfied with the same, the Complainant has come up with this appeal.
The case of the Complainant, in brief, is that he is the sole proprietor of M/s Bhai Bhai Stoneworks. He purchased a Tata JD Poclain vehicle, being financed by the OP No.2, and insured the same with the OP Insurance Company, vide policy no. 313303/31/2009/2477, at an I.D.V. of Rs.15,69,400/-, being covered for the period from 01.08.2008 to 31.07.2009. The said Tata Poclain along with other vehicles were deployed in such works. On 18.03.2009, at midnight, a daring mob violence took place, and violent mob, after entering into the establishment of the Complainant, set fire upon the standing vehicle along with the said Tata Poclain and the same were damaged, along with setting fire in the offices and quarters of the workers after locking from outside, which caused 08 victims. Accordingly, Maheshpur (Rodipur) P.S. Case No. 27/2009, u/ss. 147, 148,149, 302, 307, 436 and 427, I.P.C. was started. The incident was informed to the OPs, and he submitted a claim form duly filled up along with relevant papers to the OP No.1, who engaged Surveyor/Loss Assessor, who reported that he attended the machine and found it is burnt and almost all the parts got damaged, and the machine cannot be repaired as cost of repair, etc., is more than the cost of the new machine. But, the Insurance Company did not send any information in respect of settlement of the claim. So, he was frightened and was suffering from mental agony due to delay in the settlement of the claim. Accordingly, the case.
On the other hand, the case of the OP Insurance Company is mainly that after the said incident, the damaged vehicle was properly surveyed by the competent panel Surveyor, Mr. Koushik Saha, Chartered Engineer, who assessed the loss at Rs.12,11,553/-. It has settled the claim with the OP No.2 at Rs.10,00,000/- as full and final settlement, which was accepted by them. Thus, the cased be dismissed.
Further, the case of the OP No.2 is mainly that as per terms and conditions of the loan agreement, this OP is a loss payee, i.e., in the event of payment being made under the policy to the insured risk, payment will be made to the third party rather to the insured beneficiary of the policy. Being the loss payee, it received the insurance claim of Rs.10,00,000/- from the OP No.1 and appropriated the same towards the loan amount, for which the complaint merits dismissal.
It is to be considered if the impugned order suffers from a kind of anomaly both in legal terms and factually so as to make a dent into it in this appeal.
Decision with reasons It is to be said at the outset that the Appellant being represented by his Ld. Advocate did not appear and participate in the hearing of argument, but a BNA on behalf of the Complainant has been filed in the matter, which is being considered in this appeal. In it, amongst others, a reference has been made of a decision of the Honble National Commission, reported in 2012 (2) CPR 376 (NC), in which it has been specifically stated that the Complainant cannot be relegated to Civil Court only on the ground that the case filed before the Commission, involved some or the other questions of law or fact of law, and also a certified copy of the Order No. 11 dated 23.02.2014, in which it was held, on the basis of hearing on the point of maintainability, that present case is a maintainable one.
As per the Ld. Advocate for the Respondent No.1, it was a Payloader/Stonecrusher machine, and the repairing cost is more than the original price. It was a commercial vehicle, and used for commercial purpose. Also, there has been suppression of fact that the Insurance Company has paid Rs.10,00,000/- to the OP No.2, i.e., the Financier, as full and final settlement of the claim.
The case has been dismissed on the sole ground that the Complainant is not a consumer, as the JD Poclain is not meant for any personal or familial use, but for commercial purpose. In the famous singular decision in the case of Harsolia Motors Vs. National Insurance Co. Ltd., reported in I (2005) CPJ 27 (NC), it was held by the Honble National Commission very significantly that in the matter of insurance policy taken for commercial units, Complainants apparently availed the services of the Insurance Company for commercial purpose. But, such hiring of services of the Insurance Company by the Complainants, who are carrying on commercial activities, cannot be held to be a commercial purpose. Such policy is taken for reimbursement or indemnity for loss which may be suffered due to various perils. As such, there is no question of trading or carrying on commerce in insurance policy. Such contract of insurance generally belongs to the general category of contract of indemnity. Though such services may be for any connected commercial activity, yet it would be within the purview of the Consumer Protection Act, 1986. Further, it was held that commercial purpose means goods purchased or services hired should be used in activity directly intended to generate profit which is the main aim of commercial purpose. Where goods purchased or services hired in any activity which is directly not intended to generate profit, it would not be commercial purpose. The person who takes insurance policy to cover envisaged risk does not take policy for commercial purpose. Policy is only for indemnification of actual loss, and not intended to generate profit. Accordingly, all the appeals were allowed, and remitted back for being decided on merit.
Likewise, in the decision referred in the BNA of the Complainant, it has been held that even when a Company or a Firm engaged in commercial and industrial activity, files complaint alleging deficiency in service on the part of the Insurance Company for not settling the insurance claim, such a partnership firm or company or individual can approach the Commission for redressal of his grievance because insurance coverage taken by such a person is not for any commercial purpose. But, it is only to safeguard its interest arising out of risk to his buildings, plant and machinery and stocks in trade. Accordingly, the Complainant is very much a consumer to be enfolded within the parameters of the Consumer Protection Act, 1986. The impugned order suffers from incongruity and anomaly, and cannot sustain. The matter is fit to be remanded back to the Ld. District Forum for a proper appraisal of the case after giving opportunity to all the contesting parties to have their say and thereafter a fresh order be passed.
In the result, the appeal succeeds.
Hence, ORDERED That the appeal be and the same is allowed on contest but without cost. The impugned order is set aside. The case is remanded back to the Ld. District Forum, Birbhum for fresh hearing as per the aforesaid observations.
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