IMPORTANT POINT
‘One who hires or avails services for a commercial purpose is not consumer.’

ORDER (ORAL)

V.K. Jain, Presiding Member—The complainant was in the business of assembling of the wrist watches under the name and style of ‘Vinay Exports’ in Mapusa Industrial Estate. He had taken an insurance cover to the extent of Rs.50 lacs from National Insurance Company Ltd. On 01.12.2003, he also executed an agreement with Goa Detective and Security Services which was to provide security services at the factory of the complainant for the period from 01.12.2003 to 30.11.2004, from 8 am to 8 pm. The security agency had deputed a security guard namely Mr. Amit Mohd. Ansari at the factory of the complainant.

2. The factory of the complainant was closed in the evening of 07.02.2004 that being a Saturday, at about 6 pm in the presence of one Mr. Dinesh Mehta and the security guard Mr. Amit Mohd. Ansari. The keys of the premises were deposited with a neighbor M/s Duncan Industries owned by one Mr. Hasmukh Raj Vardhan and was kept in the custody of Mr. Shailesh Kumar, an employee of M/s Dunkan Industries under a seal. The factory was closed on 08.02.2004 that being a Sunday. They key was collected from the neighbor on 09.02.2004 by Mr. Dinesh Mehta, the employee of the complainant who was also present at the time when the factory was closed in the evening of Saturday. The security guard Mr. Ansari however, had not come on duty on that day. On opening the factory, it was found that the cash as well as several wrist watches had been stolen. A report was lodged with the police and the insurer was informed.

3. The claim in terms of the insurance policy was lodged with the insurer which repudiated the same vide its letter dated 16.12.2005 which, to the extent it is relevant, reads as under:

“In the said case we have appointed Shinde Surveyors, who has visited your factory premises and inspecting the same has come to the conclusion that the stock under the above mentioned Policy is under insured to the extent of 94.6% and accordingly the loss amount due to theft is proportionately brought down to Rs.79,919/-.

Further the surveyor has commented and also on the basis of Police Investigation report it is revealed that the entry in the premises was effected by using duplicate keys by the Watchman employed by you. So as per Exclusion No.2 and Exclusion No.7 of the Burglary Policy the Claim is not tenable under the scope of Policy.”

4. The guard Mr. Ansari who had been prosecuted by the State, for this incident, was convicted by the Criminal Court vide its judgment dated 26.11.2004. A Consumer Complaint was then filed impleading the insurer as well as the security agency as the Opposite Parties in the Consumer Complaint.

5. The complaints were resisted by both the Opposite Parties.

6. The District Forum allowed the Consumer Complaint against both the OPs and directed them to pay a sum of Rs.15,50,836/- alongwith interest @ 12% per annum. Being aggrieved from the order of the District Forum, both the OPs preferred appeals before the concerned State Commission. Vide impugned order dated 05.07.2012, the State Commission, while maintaining the principal sum awarded by the District Forum, reduced the rate of interest from 12% per annum to 9% per annum. Being still dissatisfied, both the OPs are before this Commission.

7. As far as the security agency M/s Goa Detective and Security Services is concerned, the contention of the learned counsel for the petitioner is two-fold. His first contention is that the complainant cannot be said to be a consumer of the security agency, he having hired or availed the services for a commercial purpose. The second contention is that the theft had taken place after 8 pm whereas the working hours for the security agency were from 8 am to 8 pm. This is also the submission of the learned counsel that in any case, this was a case of contributory negligence since the theft happened with the connivance of the employees of the complainant and on account of the keys having been kept with a neighbor.

8. As far as the prel