Haryana

StateCommission

A/243/2014

NIA - Complainant(s)

Versus

Maja Mechandise - Opp.Party(s)

11 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.243 of 2014

Date of Institution: 28.03.2014

                                                               Date of Decision: 11.02.2016

 

The Manager, New India Assurance Company Limited,  5R/2, First Floor, near BK Chowk, NIT, Faridabad, through its Divisional Manager.

….. Appellant

Versus

 

1.      M/s Maja Mechandise Pvt. Ltd. A company incorporated and registered under the Companies Act, 1956, having its works/office at Village Jatola, Post Office Asaoti, Tehsil Palwal, Distt. Faridabad through its Managing Director.

2.      M/s Patel Roadways Ltd., A company incorporated and registered under the Companies Act, 1956, Having its Registered office at Patel House, 100, Sheriff Deoji Street, Mumbai-03 and Local Office at Plot No.1, Sector-15-A, 17/6 Mile Stone, Mathura Road, Faridabad through Director/Branch Manager.

                                      …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri Sukhdarshan Singh, Advocate for appellant.

Shri Rajiv Ranjan Kumar, Advocate for respondent   No.1.

                             None for the respondent No.2.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

As per complainant, he placed order with M/s Om Industries to supply “Precimax” Centreless Grinding Machine PMT-100 as mentioned, in para No.3 of the complaint for Rs.2,70,608/-.  Services of Opposite Party (O.P.) No.1 were obtained for delivering machine from Sundernagar, Gujrat to Faridabad at it’s door step and paid Rs.8565/- for this purpose. Due to mishandling by O.P.No.1, the machine was damaged and was sent  back to manufacturer for removing the defect and paid Rs.5140/- again as transportation charges. The consignment was insured with appellant-O.P.No.2 vide policy dated 27.10.2006 and insured value was Rs.2,45,250/-. O.P.No.2 i.e. insurance company failed to settle the claim even after one year.  The O.Ps. be directed to pay the cost of machine and compensation for mental harassment etc.

2.      Both the O.Ps. filed separate replies admitting the consignment but denying the right of the complainant to ask for compensation.  It was alleged by O.P.No.1 that the matter was not covered by the provisions of Consumer Protection Act of 1986 ( in short “Act”) because complainant was a company and was not running business activities for earning livelihood. The machine was purchased for the commercial purpose.  The machine was not damaged due to it’s negligence.  It was not responsible for any loss suffered by the complainant.  Objections about territorial jurisdiction, maintainability etc. were also raised and requested to dismiss the complaint.

3.      In addition thereto O.P.No.2 alleged that the policy was obtained by Om Industries and complainant was not having any previty of contract with it.  If complainant was having any grievances then the same was qua O.P.No.1.  It was not responsible for any loss suffered by complainant.

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Palwal (In short “District Forum”) allowed the complaint vide order dated 27.01.2014, which is as under:-

“opposite party no.2 is directed to pay Rs.245250/- with interest @ 9% per annum from the date of filing of this complaint till its realization.  Opposite party No.2 is further directed to pay Rs.10,000/- as compensation towards mental agony and harassment alongwith Rs.5500/- as litigation expenses within 30 days from the receipt of this order to the complainant.”

5.      Feeling aggrieved therefrom opposite party No.2-(appellant) has preferred this appeal on the ground that it was not having any contract with the complainant.  M/s Om Industries obtained the insurance policy and it was answerable to the insured only. The mishandling of machine was by O.P.No.1 and it was not responsible for his act and conduct.

6.      Arguments heard. File perused.

7.      The learned counsel for the complainant vehemently argued that as per section 26 of The sale of Goods Act 1930 (In short “Goods Act”) after the purchase of the machine from Om Industries it stepped into her shoes and O.P.No.2 was liable to indemnify it’s loss.  Learned District Forum has rightly come to this conclusion. 

8.      This argument is devoid of any force.  It is admitted fact that the complainant never obtained insurance policy from O.P.No.2. It was Om Industries who had obtained the insurance policy. It was no where agreed that in case of loss, the insurance company will indemnify the loss of the complainant as per insurance policy and terms and conditions Ex.C-2 and Ex.R-1.  It is well settled proposition of law that parties are bound by terms and conditions of the agreement as opined by Hon’ble Supreme Court  in  United India Insurance Co. Ltd. and others Vs.Roshan Lal Oil Mills Ltd. and others (2000) 10 SCC 19, Sikka Papers Ltd. Vs. National Insurance Co. Ltd. and others. AIR 2009 SC 2834.  The contract has to be construed having reference to the stipulations contained in it and no artificial far fetched meaning could be given to the words appearing in it.  When it is settled by the Hon’ble Apex court that the parties cannot deviate from the terms and conditions settled in between them, complainant cannot allege to deviate from the same.

9.      Only Om Industries was having right to ask O.P.No.2 to indemnify the loss when there was no previty of contract in between complainant and O.P.No.2  it cannot ask appellant to pay compensation as directed by learned District Forum.  Only the article was transferred to the consignee.  There is no agreement to the effect that consignee can ask insurance company to pay compensation. Section 26 of the Goods Act does not govern the insurance policy. As per this section 26 the complainant can claim himself to be owner in case of dispute with Om Industry.  Learned District Forum failed to take into consideration this aspect and wrongly directed O.P.NO.2 to pay the compensation.  Hence impugned order dated 27.01.2014 cannot be sustained and is set aside.  Resultantly appeal is allowed and the complaint is dismissed.

10.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

February 11th, 2016   Urvashi Agnihotri                    R.K.Bishnoi,                                                                           Member                                  Judicial Member                                                                     Addl. Bench                            Addl.Bench