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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Tata Marine Agencies and Anr. —Appellants
versus
L.W.S. Knitwear Ltd. and Ors. —Respondents
First Appeal No.221 of 2012
Decided on 26.2.2020
For the Appellant:Mr. Gopal Jain, Sr. Advocate with Mr. Anant Kumar, Advocates
For the Respondent:Mr. Satinder S. Gulati, Advocate
IMPORTANT POINT
An agent is not liable to pay damages / compensation arising out of a contract executed by his principal.
Headnote:
Consumer Protection Act, 1986 – Section 19 – Indian Contract Act,1872 – Section 230 Appeal – Marine insurance Policy – Consignment was short in quantity and was in damaged condition – Insurance claim repudiated – An agent is not liable to pay damages / compensation arising out of a contract executed by his principal – Agent’s liability towards contract should be proved by person seeking enforcement of contract – Contract of insurance was executed by respondent No.2 and not by the appellant – Statutory presumption in terms of Section 230 of the Indian Contract Act cannot be drawn – Insurance premium was paid by the complainant to respondent No.2 and not to the appellant – Complainant therefore, cannot even be said to be a consumer of the appellants – Claim was not rejected by the appellants as their own decision, and they were only communicating the decision of the insurer – Complainant is entitled to the insurance claim as per direction of State Commission – Held that, order passed by the State Commission against the insurer remains unaltered and order against appellant set aside. [Paras 8,10,13 and 15]
Result: Appeal stands disposed of
ORDER
V.K. Jain, Presiding Member—The complainant purchased yarn from M/s Bukwang Woolen Textile Co. Ltd. of South Korea. The aforesaid consignment was got insured by the seller with respondent No.2 - Shindongah Fire and Marine Insurance Co. Ltd., through a Marine Cargo Insurance Policy. The goods arrived at IGI Airport, New Delhi on 16.8.1996 but the consignment according to the complainant could be traced only on 24.10.1996 and 25.10.1996. The consignment was short in quantity and was in damaged condition when it was traced. The complainant having intimated the loss and damage to the seller, they asked the complainant to contact the insurer at New Delhi. The surveyor appointed by the appellant assessed the quantity of the damaged goods at 880.895 kg. According to the complainant, the price of the damaged goods was Rs.758020.25. They claimed to have paid Rs.76945.30 as clearing charges, Rs.539787.79 as Custom Duty and Rs.880.66 as freight. The claim having not been paid, the complainant approached the concerned State Commission by way of a consumer complaint seeking an amount of Rs.1705786/- from the appellant which included Rs.330152/- as interest @ 12% p.a. and compensation quantified at Rs.50,000/-.
2. The complaint was resisted by the appellant primarily on the ground that there being no contract between the appellant and the complainant and the complainant not being their consumer, they were not liable to reimburse the complainant. The appellant also pleaded that the insurance policy taken by the seller of the goods had not been issued by it and the remedy of the complainant lied against the company which had issued the insurance certificate.
3. Vide impugned order dated 8.11.2010, the State Commission disposed of the consumer complaint with the following directions:-
“75. Therefore all the three grounds on which the insurance claim has been repudiated are totally baseless and the complainant is entitled to the insurance claim.
76. So far as the amount of insurance claim is concerned the complainant has assessed the claim in accordance with the loss of goods/damage to the goods found in the survey report dated 17.1.1997 (Annexure C-14) which was duly approved by respondent No.3 vide their letter dated 22.1.1997 (Annexure C-13) by which respondent No.3 had forwarded the survey report to the complainant. However the complainant has added the freight from Delhi to Ludhiana to the tune of Rs.880.66P to which he is not entitled. He has also claimed interest at the rate of 12% per annum with effect from 17.1.1997 which will be decided in the later part of this judgment. If these two amounts are taken out of the claim of Rs.17,05,786/-, the remaining insurance amount comes to Rs.13,74,754.34P (Rs.17,05,786/- minus Rs.880.66P minus Rs.3,30,152/-) rounded off to Rs.13,74,754/-.
77. The complainant would also be entitled to interest on this amount of Rs.13,74,754/- at the rate of 9% per annum from the date of final repudiation i.e. 14.7.1997 till the date of payment. The complainant would also be entitled to costs of Rs.20,000/-. Consumer Complaint No.27 of 1999. 28
78. Keeping in view the discussion held above, the complaint of the complainant is accepted.
79. The original insurers i.e. Shindongah Fire & Marine Insurance Co. Ltd., respondent No.2 and respondents No.1 and 3 are liable to pay the insurance claim to the complainant jointly and severally. If the amount is recovered from respondents No.1 and 3, they will be at liberty to recover the amount from the original insurers i.e. M/s Shindongah Fire & Marine Insurance Co. Ltd., respondent No.2.
80. Compliance of this order shall be made within two months from the date of receipt of a copy of this order.”
4. Being aggrieved from the order passed by the State Commission, the appellants are before this Commission by way of this appeal.
5. The insurance policy taken by the seller of the goods, namely, Bukwang Woolen Textile Co. Ltd., purports to be issued by respondent No.2 - Shi
