MAHESHWARI TEXTILES Vs. EAST INDIA TRANSPORT CO

JUDGEMENT

(1.) This complaint has been filed by M/s. Maheshwari Textiles, a registered partnership-firm, against the claiming a compensation of Rs.1,53,268/- alongwith interest on account of non delivery of eight bales of cloth booked by it with the for carriage from Udaipur to Guwahati on 7.7.89. The complainant has further claimed Rs.10,000/- as compensation and Rs.5,000/- as costs. According to the complainant, these bales of cloth had been booked with the on 7.7.89 vide Goods Receipts Nos.570801 to 570808, but they were not delivered. These bales of cloth were insured with the Oriental Insurance Co. under Policy No.90/00016. The complainant has stated that the Oriental Insurance Co. Ltd. is a power of attorney holder and it has no objection if the pay the compensation to the Insurance Company.

(2.) The case of the Opposite Parties is that the complaint has been filed by M/s. Oriental Insurance Co. with whom there was no privity of contract. It is stated that M/s. Maheshwari Textiles has received the amount of their claim from the Insurance Company and they are not entitled to double payment.

(3.) It may be mentioned that appearance had been made on behalf of the complainant on various dates upto 8.12.94 but none appeared for the complainant thereafter on 4.1.95, 10.2.95 and even today. We have, therefore, heard the learned Counsel for the Opposite Parties and have gone through the record. It may be mentioned that in the cause title, this complaint has been filed in the name of M/s. Maheshwari Textiles, but through alleged power of attorney-holder Oriental Insurance Co. Ltd. The complaint is also signed by the authorised officer of the Oriental Insurance Co. as power of attorney holder of M/s. Maheshwari Textiles. In para 7 of the complaint, the complainant has alleged that it had submitted a claim to the Oriental Insurance Co. and the Insurance Co. had paid an amount of Rs.1,12,697/- to the complainant with respect to the claim preferred by it. It thus appears that the Insurance Co. has compensated the complainant for the loss sustained by it. It has been alleged that the complainant has executed a document power of attorney in favour of the Oriental Insurance Company. It may be mentioned that no such deed of power of attorney has been filed with this complaint. In the absence of the deed of power of attorney, it cannot be held that the Oriental Insurance Company is power of attorney holder of the complainant competent to file the complaint on its behalf. On the other hand, a letter of subrogation dated 13.7.90 has been produced with the complaint whereby the consignor has in lieu of the payment of compensation made by the Insurance Company assigned, transferred and abandoned all its rights, title and interest in respect of the goods and has authorised the Insurance Company to recover the damage or loss. In other words, the complainant had subrogated its rights in favour of the Oriental Insurance Company. The document is not a deed of power of attorney in favour of Oriental Insurance Company but is a letter of subrogation. It has not been established that the Oriental Insurance Company is the power of attorney holder of the complainant, competent to file the complaint and claim compensation for the complainant. The complaint is thus not filed by the 'consumer' or its authorised agent. The Oriental Insurance Company knowing that being assignee of the rights of the complainant could not file a complaint under the Consumer Protection Act, 1986 wrongly described that it was power of attorney holder of the complainant which it has not proved. Thus the complaint has not been filed by the complainant or his authorised agent and deserves to be dismissed on this ground alone.