JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            By this order, we propose to dispose the above noted revision petitions directed against the common order dated 09.02.2010 of the State Commission, Uttar Pradesh whereby the State Commission allowed the appeals preferred by respective respondent / opposite party, quashed the order of the District Forum and dismissed the consumer complaints filed by the respective petitioners.

2.         Briefly stated, the facts relevant for the disposal of the revision petitions are that Ms. Rita Singh, proprietor of the Khushi Sales Corporation and Ajay Pal Singh, proprietor of M/s Ajay Enterprises are husband and wife.  The petitioners were having respective shops at Nayapura Nikana Market and at Navin Market respectively.  The shops of the petitioners were located at a distance of half kilometer from each other and the petitioners had their godown located in Tulsi guest house, Gandhinagar.  According to the petitioners, they had insured their stock in trade with respondent insurance company.  During the currency of the respective insurance policies, a fire accident took place in the godown of the petitioners complainants on the night of 12/13 November, 2007.  Consequently stock in trade was gutted in fire.  The petitioners preferred insurance claim but the respondent opposite party insurance company repudiated the claim that the godown where the fire broke out was not insured by the either of the petitioners.  It is further the case of the complainants that they had taken loan from SBI / respondent no.2.  As per the terms of the agreement, the SBI was under an obligation to get the godown of the petitioners firm insured and if the respondent SBI had failed to obtain insurance  in respect of stock in trade in the godown, it has committed deficiency in service.

3.         The opposite parties on being served with the notices of the consumer complaints filed their written statements in the respective complaint cases. According to the opposite party insurance company, it has not committed any deficiency in service in repudiating the claim because stock in trade lying in the godown was not insured.

4.         The OP bank in their statement admitted extending loan to the petitioners firm.  It, however, pleaded that bank had no obligation to obtain the insurance policy in respect of stock in trade lying in the subject godown.  Thus, it is pleaded that opposite party bank has been wrongly impleaded as opposite party in the respective consumer complaints.

5.         The District Forum on consideration of the pleadings of the parties and the evidence allowed both the consumer complaints.  In complaint CC No. 54/08, District Forum directed opposite party no.2 insurance company as under:

“In Complaint Case No. 54 year 2008, Opposite Party No.2 / Insurance Company is directed to pay Rs.5000/- as litigation expenses within 30 days of the date of decision along with amount i.e. Rs.12,84, 630/- ( Rs. Twelve Lakh Eighty Four Thousand Six Hundred and Thirty only) of the goods which were kept in the godown and was destroyed in the incident of fire and with this amount till the date of filing the present complaint i.e. 17.06.2008 and till the date of payment 12% interest per annum and Rs.Ten Thousand for mental harassment be paid.”

6.         In complaint CC No. 55/08, the District  Forum directed opposite party no.2 insurance company as under:

“In  Complaint Case No. 55 year 2008 Opposite Party No.2 / Insurance Company is directed to pay Rs.5000/- as litigation expenses within 30 days of the date of decision along with amount i.e. Rs.14,80, 402/- ( Rs. Fourteen Lakh Eighty Thousand Four Hundred and Two only)) of the goods which were kept in the godown and was destroyed in the incident of fire and with this amount till the date of filing the present complaint i.e. 17.06.2008 and till the date of payment 13.25%  interest per annum and Rs. Ten Thousand for mental harassment be paid.”

7.         Being aggrieved of the common judgment of the District Forum, opposite party insurance company filed separate appeals being appeals no. 2399/08 in respect of complaint filed by M/s Khushi Sales Corporation and Anr. And Appeal No. 2400/08 in respect of complaint filed by M/s Ajay Enterprises and Anr.  The State Commission on consideration of the record and the submissions made on behalf of the respective parties was of the view that subject godown of the two complainants at Tulsipur Guest House was not covered under the insurance contract.  Accordingly, the State Commission allowed the appeal preferred by the respondent insurance company, set aside the common order of the District Forum and dismissed the respective complaints with cost of Rs.5000/- each as litigation expenses.

8.         Ld. Sh. Pramod Ahuja, Advocate for the respective petitioners has contended that State Commission has committed a grave error in concluding that the subject godown where fire accident took place was  not insured, ignoring the fact that petitioners had taken insurance of their respective stock in trade and as per the report of the surveyor, stock in trade was gutted in fire which took place on the subject godown.

9.         Learned counsel for respondent no.1 on the contrary has contended that insurance policy is contract between the parties and it has to be implemented strictly without any addition or deletion of the contract terms.  It is argued that perusal of respective insurance policies would show that insurance cover was extended by respondent no.1 only in respect of stock in trade stored in the insured premises and that godown where the fire accident took place was not insured under the respective insurance policies.

10.       On careful consideration of record, we find merit in the contention of learned counsel for the respondent insurance company.  On perusal of copy of insurance policy pertaining to M/s Khushi Sales Corporation, we find that the address of Khushi Sales Corporation as business / shop  “Nayapura Naikana, Mahoba Uttar Pradesh” and its nature of business is mentioned as “stock of wooden furniture”.  The section pertaining to description of cover / peril in the insurance policy records as under:

11.       Similarly on perusal of insurance policy pertaining to M/s Ajay Enterprises, it transpires that in the policy, the address of petitioner M/s Ajay Enterprises is shown as “Naveen Market, Mahoba, Uttar Pradesh” and nature of business is mentioned as “shop of plastic furnitures”.  The section comprising of description of cover and perils in the insurance policy records as under:

12.       On reading of the above contents of the respective insurance policy, it is evident that complainants had taken insurance cover in respect of the contents lying in the shop premises described in the insurance policy against the name and address of the insured.  There is no mention in the insurance policy that stock of the complainants lying in the godown was also insured.  Therefore, in our opinion, the State Commission has not committed any error in holding that insurance company was justified in repudiating the claims of the respective complainants as the loss claimed was not covered under the insurance policy.

13.       Learned counsel for the petitioner has argued that as per the contract  between the parties, it was the obligation of opposite party bank to keep the business property of the respective complainants insured.  It is further contended that as a matter of practice, the opposite party bank had been taking insurance policy on behalf of the complainants and debiting the amount of premium to their account but the bank after the insurance used to keep the original insurance documents with itself without supplying any copy of the insurance policy.  Thus, it is argued that if the bank has failed to take insurance in respect of the business stock of the respective complainants lying in the godown, it has committed deficiency in service and liable to make good the loss caused to the complainants.  In support of his contention, learned counsel for the petitioners have relied  upon the respective hypothecation and guarantee agreement between the parties.

14.       We do not find merit in the learned counsel for the petitioners.  We have carefully gone through the copies of respective hypothecation cum guarantee agreement between the petitioners and the respondent opposite party bank.  Nowhere in the agreements, it is recorded that it shall be the obligation of the opposite party bank to get insured the stock lying in the shops and godown of respective complainants.  Instead, clause 5 of the respective hypothecation agreement reads as under:

                        5^th .      That the goods shall be kept of the Borrower’s risk and expense                    in goods condition and fully insured against loss of damage as may be                        required by the Bank.”        

15.       On reading of the above, it is clear that as per the contract between petitioners and bank, stock in trade was to be kept in good condition and fully insured at the borrower’s risk as per the requirement of the bank.  From this, it appears that to take insurance cover for the stock in trade  was the obligation of the petitioner complainants.  Just because the bank had paid premium and debited the amount in the loan accounts of the respective petitioners, it cannot be said that the bank was under obligation to get the stock stored in the godown insured.  The plea of the petitioner that the bank did give insurance policy to them is not believable.  Thus, petitioners now cannot blame the opposite party bank for non insurance of their respective stock in trade lying in the godown which caught fire.

16.       There is another aspect to this case.  Admittedly, the services of the opposite party bank were obtained by the respective complainants in relation to their business venture.  Thus, it is clear that services of the opposite party bank were taken for commercial purpose.

17.       Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 defines the term ‘consumer’ in respect of services hired or availed.  The relevant provision is reproduced as under:

“(ii) hires or avails of any services 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 beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

        Explanation.— For the purposes of this clause, “commercial purpose” does           not include use by a person of goods         bought and used by him and services      availed by him             exclusively for the purposes of earning his livelihood by          means of self-employment”

18.       On reading of the above, it is clear that a person is a consumer if he hires or avails of service for someone.  The section, however, has an inbuilt exclusion clause providing that if the services has been availed in respect of commercial purpose, the person concerned would not be treated as consumer.  In the instant case, services of opposite party bank were availed by the petitioners for commercial purpose i.e. their business loan account.  As such, petitioners in view of the exclusion clause are not consumers as envisaged under section 2 (1) (d) of the Act.  Therefore, so far as bank is concerned,  the petitioners  has no locus standi to maintain the consumer complaint.  For this count also, plea of the complainants qua the bank is liable to be rejected.

19.       In view of the discussion above, we do not find any fault with the impugned order of the State Commission which may call for interference in exercise of revisional jurisdiction.  Revision petitions are, therefore, dismissed.