SRI. SAJEESH.K.P     : MEMBER

    The  Complainant has filed this complaint  under Sec.35 of the Consumer Protection Act 2019 seeking direction against the  OPs  to refund the amount of Rs.32337/- towards the price of insurance and also pay Rs.25,000/- as compensation  for the mental stress.

     The complainant in brief:-

    On 13^th March 2018, complainant purchased 3LG Split air conditioners from Nikshan Electronics with total cost of Rs.127500/-.  The  said  purchase was for his textile shop.  The manufacturer provides one year warranty from the date of purchase.  The complainant paid for extended warranty for 3 year by paying Rs.32337/- on the persuasion of Bajaj Finserv employees at Nikshan  Electronics.  During the period of manufacturer warranty ,the service of OP was satisfactory  but complainant never get the benefit of extended warranty.  The service of extended warranty was denied by OP saying that their service will not be available  for commercial purpose.  During the purchase of extended warranty complainant told their that his purchase was for his shop and they never raised by objection at that time.  Even after the payment for extended warranty the OP denied to provide  service to complainant and hence this complaint.

          After filing the  complaint, commission has sent notice to both OPs.  2^nd  OP  entered appearance before the commission and filed their version.  After that complainant filed petition to remove 1^st OP from party array.  Petition allowed 1^st OP is deleted from party array.

Version of  2^nd  OP in brief:

    The OP denied the entire averment made by complainant except those admitted specifically. The OP contended that insurance policy is a contract and both parties are under obligation  to  fulfill the terms and conditions  clause 29 of the  title “Exclusion” state as “where the insured asset is subject to commercial , rental or profit generation  purpose”, the complainant will not entitled to later the claim of insurance.  The OP not acted any negligence, unfair trade practice or deficiency of service towards opposite party.  The OP contended that complainant is not a consumer under  Consumer Protection Act 2019.  Hence the complaint is liable to be dismissed.

       Due to the rival contentions raised by the OP to the litigation, the commission decided to cast the issues  accordingly.

1. Whether there is any deficiency in service and unfair trade practice from the side of  OP?
2. Whether there is any  compensation  &  cost to the complainant?

       In order to answer the issues, the commission called evidence from both parties. The  complainant produced documents which is marked as Exts.A1 to A3,  Ext.A1 is the Tax invoice issued by Nikshan Electronics, Ext.A2 is the no due  certificate 3 in numbers and  Ext.A3 is the insurance certificate cum terms and conditions.   The complainant adduced evidence  through proof  affidavit and examined as PW1.  2^nd OP  produced 2 documents marked as Exts.B1& B2.  Ext.B1 is the Group Asset protection policy  transcript of  proposal and Ext.B2 is  extended warranty policy.  No oral evidence from the side of 2^nd OP.

   For the sake of convenience, both issues  were considered together.  On the  perusal of evidence produced by both parties let as examine Ext.A1 which is the purchase bill of  3 Air Conditioner worth Rs.127500/- on which there is no  dispute between  the parties.  Like , there is no dispute on Et.A2.  As per Ext.A3, the extended warranty, where the dispute arise between  parties.  The complainant had availed extended warranty for 3 AC where the OP  raised the objection that they will provide service to complainant if it is used for domestic purpose not for commercial purpose.  During the cross examination of complainant, he stated that the AC purchased for his textile shop and he orally stated this to OP at the time of purchasing extended warranty.  The complainant was re-examined and he specifically stated that  he  purchased AC to  fit  his textile shop.  Moreover, the clause 29 of  exclusion in Ext.A3, the service excluded for commercial, rental purpose etc. After considering all these the  Commission came into the view that the complainant purchased 3 AC for his textile shop.  Hence, the textile shop is the commercial element not the usage of AC in the textile shop.  According to section 7(1)(i) of Consumer Protection Act 2019 “consumer “means  ” any person who 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. And section 7(1) (a) explains that "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.  Hence complainant purchased goods for his textile shop not for any resale or commercial purpose.  The 3 AC , he purchased  and used in his  textile shop which  he runs for commercial purpose.  The complainant demanded the service of 3 AC which was denied by OP is clear from OP’s version and affidavit by stating  it as the purchase is made for commercial purpose.  Actually the fact is not true when it is strictly construed  as per the definition of Consumer   under the Consumer Protection Act 2019.  Moreover, cause 29 of Ext.A3 (exclusions) is applicable only to commercial purpose.  Hence the complainant is entitled to get the service of extended warranty towards OPs and also liable to get compensation for the denial of service even after this payment of insured  amount.  Hence  issue No.1&2 are answered in favour of complainant.

        In the result complaint is allowed in part, the  2^nd opposite party is directed to pay Rs.32337/- which paid by complainant towards insurance premium to obtain extended warranty and also  pay Rs.5000/- as  compensation to the complainant.  This order  is to be complied by 2^nd opposite party  within 30 days of receipt of this order.  Failing which complainant is at liberty to file execution application against 2^nd opposite party as per the provisions of Consumer Protection Act 2019.

Exts:

A1- Tax invoice

A2- No due certificate

A3- Insurance policy cum terms and conditions

B1-Insurance policy

B2- Group Asset Protection policy Transcript of proposal

PW1-Sukumaran.K-complainant

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR