Back
2009(2) CPR 353
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
M.V. Viswanathan, Judicial Member and M.K. Abdulla Sona, Member
The Calicut Cooperatives Urban
Bank Ltd. —Appellant
versus
The New India Assurance
Co. Ltd. —Respondent
Appeal No. 470 of 2004
Decided on 19.3.2009
Counsel for the Parties:
For the Appellant:Devaprasanth, P.J., Advocate.
For the Respondent Mathews Jacob, Advocate.
IMPORTANT POINT
Insurance Policy taken by commercial units cannot be held to be hiring of services for commercial purposes so as to exclude it from the purview of Consumer Protection Act.
Headnote:Consumer Protection Act, 1986—Section 2(1)(d) —Consumer—Complainant took Insurance Policy with OP against risk of theft, burglary, house breaking etc.—Occurrence of peril during currency of policy—Repudiation of claim on ground that by virtue of Amendment of CP Act, which came into force on 15.3.2003, complainant could not be treated as a Consumer as defined under Section 2(1)(d) of as he availed service of OP for commercial purpose—Cause of action for complaint arose prior to coming into force of Amendment Act 62 of 2002—Admittedly Amendment came into force on 15.3.2002—Nothing on record to show that said Amendment had any retrospective operation—Hence held that Forum below was wrong in holding that by virtue of said Amendment, complainant could not be treated as a Consumer as defined under Section 2(1)(d) of CP Act—Finding of Forum held liable to be set aside. (Para 3)
Result: Appeal allowed.
M.V. Viswanathan, Judicial Member—The above appeal is preferred from the date 12th March, 2004 passed by CDRF, Kozhikode in OP No. 292/2002. 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 considered the said issue as 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 t he 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 Hon’ble National Commission in Birla VXL Ltd. v. National Insurance Company Limited reported in III (2003) CPJ 111 (NC) and submitted that the cause of action for the complaint 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:
1. Whether the appellant/complainant can be considered as a Consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986?
2. Whether the Amendment Act 62 of 2002 has got any retrospective operation or whether the same can be considered as prospective in nature?
3. Is there any sustainable ground to interfere with the impugned order dated 12.3.2004 passed by the CDRF, Kozhikode in OP No. 292/2002?
4. 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. 292/2002. The opposite party vehemently contended that the complainant is not a Consumer coming with in the ambit of Consumer Protection Act. The Forum below was of the view that by virtue of the Amendment Act 652 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 2008(3) CPR 192 (NC). 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 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
