Order No. 32 date: 31-05-2017
Sri Shyamal Gupta, Member
Record is put up today for passing order in respect of MA/1210/2016 filed by Indian Oil Corporation Ltd.
By such petition, it is stated by the Petitioner that a work-order was issued in favour of the Complainant by it for carrying bulk lube oils to different destinations across India. The Agreement dated 05-11-2011 entered into in between the parties, i.e., Complainant and the Petitioner, stipulates that in case oil carrying tanker meets with an accident while the same is loaded with product of the Petitioner, the contractor (Complainant herein) would be responsible for the loss as would be determined by the Petitioner.
As ill luck would have it, while carrying lube oil, the tanker deputed by the Complainant met an accident on 15-11-2011. The Complainant vide its letter dated 21-07-2012 intimated the Petitioner regarding said incident and loss of total product loaded in the tanker. The Petitioner estimated the loss at Rs. 30,82,741/-. Although the Petitioner asked the Complainant to make up the loss, the Complainant only paid Rs. 14,00,000/-. An amount of Rs. 5,00,000/- was further recovered by encashing the bank guarantee and adjusting security deposit amount of the Complainant which was lying with the Petitioner. It is stated that after adjusting other credits, the Petitioner still owe an amount of Rs. 11,23,135/- from the Complainant. The Complainant sought for some time to pay the balance amount citing its predicament over non-settlement of its insurance claim.
It is stated that the Petitioner is a necessary party to this case as it has reasonable claim from the Complainant to the tune of Rs. 11,73,135/-. Accordingly, it prayed for participating in the complaint case as one of the OPs.
By filing a W.O., it is stated by the Complainant that the dispute revolves over deficiency in service on the part of the OPs wherein the present Petitioner cannot be a party and its application is not covered under Sec. 2(1)(g) of the Consumer Protection Act, 1986. It is further submitted that due to non-settlement of its claim by the OPs, it has become next to impossible for it to make ends meet and if the dispute is further lingered by adding the Petitioner as a party to this case, it would cause irreparable loss and hardship to the Complainant. It is alleged by the Complainant that the Petitioner has willfully concealed the existence of arbitration clause to resolve such dispute. Such purported dispute between the Petitioner and the Complainant cannot be settled in any manner whatsoever under the 1986 Act. Hence, the instant MA, according to the Complainant, is liable to be rejected in limini.
We have heard the submission advanced by both sides and perused the material on record.
Undisputedly, in terms of the Agreement dated 05-11-2011, all questions, disputes and differences arising under all relation to said agreement needs to be referred to the sole Arbitrator of the Head of the concerned Regional/Zonal/Area office of the Petitioner. It is further stipulated in the said Agreement that if the concerned Regional/Zonal/Area Office of the Petitioner or any official of the Corporation is unable or unwilling to act as the Sole Arbitrator, the matter needs to be referred to the sole Arbitrator of some other office of the Petitioner.
Despite entering into such an agreement with the Complainant, the very purpose of Petitioner’s desire to participate in the present complaint proceedings at this belated stage, particularly when the matter has already reached its final stage (hearing) is really not understood. No doubt, acceding to the prayer of the petitioner would further linger the matter which is already hanging in fire for the last four years. This is certainly not desirable as it runs contrary to the spirit of the Consumer Protection Act.
In such circumstances, while alternative remedy is available before the petitioner to ventilate its grievance, we are not inclined to allow such petition. The petition is rejected as such.
Fix 27-11-2017 for final hearing.
