CALICUT CO-OPERATIVE URBAN BANK LTD Vs. NEW INDIA ASSURANCE COMPANY LTD
LAWS(KERCDRC)-2009-3-2
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Decided on March 19,2009

Calicut Co -Operative Urban Bank Ltd Appellant
VERSUS
NEW INDIA ASSURANCE COMPANY LTD Respondents




JUDGEMENT

- (1.)THE above appeal is preferred from the order dated 12th March, 2004 passed by the CDRF, Kozhikode in OP No. 292/02. The complaint therein was filed by the appellant herein for getting the insurance claim. The opposite party entered appearance and contended that the complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. So, the Forum below considered the said issue as preliminarily issue and it has been held that by virtue of the amendment of the Consumer Protection Act which came into force on 15.3.2003, the complainant cannot be treated as a consumer as defined under Section 2(1)(d) of the Consumer Protection Act because of the fact that he availed the service of the opposite party for commercial purpose. Thereby the Forum below accepted the case of the opposite party and thereby dismissed the complaint in OP No. 292/02. Hence the present appeal.
(2.)WE heard the Counsel for the appellant/complainant and the respondent/opposite party. The learned Counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He also relied on the decision rendered by the Honourable National Commission in Birla VXL limited v. National Insurance Company Limited, 2003 3 CPJ 111, and submitted that the cause of action for the complainant had arisen before the amendment which came into force on 15.3.2003 and so the complainant is to be treated as a consumer coming within the ambit of the Consumer Protection Act, 1986, as the amendment had no retrospective operation but only prospective in nature. The learned Counsel for the respondent/ opposite party supported the findings and conclusions of the Forum below.
(3.)THE points that arise for consideration are:
(i) Whether the appellant/complainant can be considered as a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986?

(ii) Whether the Amendment Act 62 of 2002 has got any retrospective operation or whether the same can be considered as prospective in nature?

(iii) Is there any sustainable ground to interfere with the impugned order dated 12.3.2004 passed by the CDRF, Kozhikode in OP. No. 292/02?

Points 1 to 3:

There is no dispute that the appellant/complainant had taken the insurance policy with the respondent/opposite party against the risk of theft, burglary, house breaking, etc. Admittedly the peril occurred on 14.9.2001 while there was an effective and subsisting policy of insurance. The complainant as the insured preferred the claim on 17.9.2001 and the same was dishonoured by the opposite party Insurance Company. Therefore, the complainant preferred the aforesaid complaint in OP. No. 292/02. The opposite party vehemently contended that the complainant is not a consumer coming within the ambit of Consumer Protection Act. The Forum below was of the view that by virtue of the Amendment Act 62 of 2002 the service availed by the complainant for commercial purpose would not come within the purview of the Consumer Protection Act, 1986. It is to be noted that the cause of action for the complaint had arisen prior to the coming into force of the Amendment Act 62 of 2002. Admittedly the aforesaid amendment came into force on 15.3.2002. There can be no doubt about the fact that the said amendment had no retrospective operation. There is nothing on record to show that the said amendment had any retrospective operation. The very reading of the amendment would make it crystal clear that the said amendment has prospective operation only, M S PANDIYARAJAN v. BHARAT SANCHAR NIGAM LTD, 2008 3 CPJ 180. If that be the position, the Forum below had gone wrong in holding that by virtue of the said amendment, the complainant could not be treated or considered as a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. The decision relied on by the appellant/complainant would strengthen the aforesaid position. Moreover, it is also to be noted that the policy of insurance was taken for protecting the assets of mercantile goods of the complainant and that the said policy was issued by the opposite party Insurance Company covering the risks as mentioned in the policy. It cannot be considered that the policy was taken for any commercial purpose. Even though the policy holder might be doing business. Insurance Policy taken by commercial units cannot be held to be hiring of services for commercial purpose so as to exclude it from the purview of Consumer Protection Act, RAKESH ROAD CARRIERS v. ASSOCIATED ROAD CARRIERS LIMITED, 2005 1 CPJ 27. So, the appellant/complainant who took the policy and availed the service of the respondent/opposite party is to be treated as a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. Thus, in all respects the finding of the Forum below is liable to be set aside. Hence we do so. In the result, the appeal is allowed without cost. The impugned order dated 12.3.2004 passed by the CDRF, Kozhikode in O.P. No. 292/02 is set aside. The matter is remanded to the Forum below for fresh disposal of the complaint in O.P. No. 292/02 on merits. The parties are directed to appear before the Forum below on 27.5.2009.



Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.