1. THIS complaint is filed by Dr. Viral Shah alleging deficiency in service against the opposite party, United India Insurance Co. Ltd. Brief facts of the case are:
2. THE complainant Dr. Viral Shah had installed a Siemens AG Germany make Magnetom M -10 (1.0 Tesla) MRI machine at Breach Candy Hospital and Research Centre, Mumbai under an agreement dated 2.7.1987 with them. He decided to shift the machine from Breach Candy Hospital, Mumbai to MRI and Lithortripsy Centre, near Nursing College, New Civil Hospital Complex, Asarwa Road, Ahmedabad, after the agreement came to an end with the Breach Candy Hospital and Research Centre, Mumbai.
3. IN order to instal the MRI in Ahmedabad, on 8.7.1996, the complainant approached the opposite party for transit insurance. Opposite party appointed S.G. Kumar and Co -surveyors, Loss Assessors and Valuers for pre -acceptance inspection. The Surveyor gave a report on 15.12.1996 on the magnetom impact 1.0 Tesla MRI system (Exhibit E''). Based on this, opposite party processed the proposal of the complainant on payment of a premium of Rs. 2,81,239 against the total sum insured under the policy, which was Rs.3.16 crores. The proposal form was duly filled in and forwarded to opposite party by his letter dated 8.1.1997 (Exhibit F''). Complainant''s Version:
The Magnetic resonance imaging centre, MRI equipment was in working condition at the time of disconnection on 8.8.1996 by Siemens, who certified that the last image of the patient Anthony Mathew vide MRI No. 26396, was in order (Exhibit B'') and thereafter the magnet was de -energised. Siemens received a sum of Rs. 10,00,000 to execute the work of shifting MRI machine, but they did not do it themselves but entrusted the task of shifting MRI machine to Philips Medical Systems India Limited (for short PMS''), who seems to have the expertise in this field. As the transportation was to be done by road, the task of shifting was entrusted to Oriental Packers and Movers Private Limited (for short OPM''). Vide letter, dated 14.1.1997, the OPM informed the complainant that their escort would accompany the consignment to Ahmedabad. The OPM conducted survey of the road between Mumbai and Ahmedabad and informed the complainant vide letter dated 31.1.1997 (Exhibit I'') that inspection was done and there were no overhead obstructions, bridges and railway crossings, and that magnetom could travel safely on the road.
4. WHEN it came to the notice of the complainant that the space at Gujarat Cancer Society where the equipment was to be installed was not ready, he opted to store the MRI equipment temporarily in a Farm House at Thransad, Dholka, Ahmedabad. The complainant wrote a letter dated 29.7.1997, (Exhibit L'') to the opposite party before shifting of the equipment, whereby they were informed that the MRI equipment would be temporarily housed in Farm House at Thransad, Dholka, Ahmedabad. Complainant sent a reminder letter dated 2.8.1997 (Exhibit. M'') reiterating the same fact. Subsequently, by the letters dated 19.8.1997 (Exhibit N'') and 28.8.1997 (Exhibit O''), the complainant informed the opposite party about the transit programe of MRI equipment.
5. IT is submitted by the learned Counsel for the complainant that PMS inspected Magnetom at Dholka, Gujarat on 20.9.1997, after unloading MRI, wrote a letter to the complainant stating that the magnet had undergone shock during transit, shock meters had tripped and that the blue colour flag was displayed. The same was informed to the opposite party vide letter dated 24.9.1997 by the complainant enclosing a copy of the letter of PMS dated 23.9.1997. Thereafter, the complainant wrote another letter dated 14.10.1997 (Exhibit S'') to the opposite party seeking the claim amount.
6. OPPOSITE party finally replied vide letter dated 17.10.1997 (Exhibit T) stating that they appointed a surveyor J.P. Mistry to carry out the necessary survey, besides M/s. Ashok Chopra and Associates, who had been asked to collect the information on their behalf.
7. THE Surveyor J.P. Mistry personally interviewed the complainant and vide letter dated 16.7.1998 (Exhibit Z -16''), to the opposite party, gave his comments to the investigation report of M/s. Ashok Chopra and Company. J.P. Mistry observed that change in destination was conveyed to the opposite party prior to transit of the equipment. He noted that if PMS and OPM were proved to have failed to discharge their obligations, while transporting the equipment, opposite party could initiate action against them also for settling the claim.
8. OPPOSITE party raised various grounds vide letter, dated 17.7.1998 (Exhibit Z -17''), for not accepting the claim, and alleged:
(a) that as to why the MRI machine was despatched, despite the erection site was not being ready; what were the precautions taken while the equipment was at Dholka, whether the area was covered or open etc.,
(b) that the magnet was shifted by a forklift and then lifted by a crane, which was stated in the letter dated 26.3.1998 of PMS, whereas in the letter, dated 23.12.1997 of OPM it was stated that the job was done manually, which are contradictory statements. It was further alleged that there is no document or proof to confirm that sufficient care has been exercised at the time of loading such sensitive and high value equipment for the journey,
(c) that as per letter dated 17.11.1997, anti -vibration mounts were placed below the base frame of the magnet before transportation. As per the report of S. G. Kumar and Co., anti -vibration mounts should have been mounted for protection of the magnetic core during transportation, and this has not been done by both PMS and OPM. A query was raised as to why shock meters of 5G, 10G and 15G ratings were used instead of anti -vibration mounts,
(d) that the policy condition stipulates that losses that have occurred due to insufficient or unsuitable packing are excluded from the scope of coverage and hence, this loss could be excluded from the scope of coverage,
(e) that there is discrepancy in the letters and reports as to when and how shock meters tripped. PMS''s Service Engineer Shri Balakrishnan, gave a report dated 6.9.1997 stating that the goods had arrived safely at the destination; another report dated 20.9.1997 to state that shock meters had tripped; another letter dated 29.9.1997 stating the colours of normal and tripped meter (when a contrary report on the colours was issued by them on 23.9.1997) and that there is obvious negligence on the part of the PMS, based on their own documents,
(f) that as per letter, dated 27.1.1998, of PMS, route chosen for transport was said to have been surveyed by it, whereas the letter dated 31.1.1997 of OPM states that they have not personally done any survey to this effect, which show that the complainant has not given correct information regarding transportation of the sensitive equipment.
9. BASED on the above grounds, opposite party contended that precautionary measures were not adhered to for the transit of magnet, especially when it is stated that it was delivered in tact, but after 13 days the shock meter was tripped and damage was suspected. Based on mis -statements made regarding the sequence of these events and letters, which are contradictory in nature, opposite party is not liable and that the claim is not tenable.
10. LEARNED Counsel for the complainant submitted that at the time of pre -insurance survey it was not known to the complainant that the despatch was for installation at H.J. Hospital, Rajkot. Although it was to be transported to Shah Diagnostic Centre Institute Pvt. Ltd. at Ahmedabad, several letters including letter, dated 31.7.1997 were written, which categorically stated that the magnet will be transported to Dholka, Ahmedabad; neither of the letters dated 19.8.1997 and 22.8.1997 stated that it would be transported to Shah Diagnostic Institute Private Limited at Ahmedabad'' as they refer to letter, dated 31.7.1997, but the opposite party although was duly informed that the magnet would be transported to Dholka they neither called for any information nor did they come forward for a pre -transport inspection.
11. SECONDLY , M/s. PMS vide their letter dated 26.3.1998 (exhibit Z -9) stated that forklift and then a crane was used to shift the machine as obviously they share the weight of the magnet itself is testimony of the fact that it could not have been shifted manually. As far as the contentions raised by the opposite party that the magnetom was shifted manually, OPM stated in their letter, dated 17.2.1998 addressed to M/s. Ashok Chopra and Co. that they were responsible for the "manual shifting of the magnetom out of the building". This letter does not suggest in any way that the magnet was shifted manually.
12. THIRDLY , the contention that the anti vibration mounts were not placed below the base frame of the magnet before the transportation as alleged by the opposite party, the complainant averred that as per report of M/s. S.G. Kumar and Co. these were recommended but it was not mandatory. M/s. PMS are the best judges to decide whether to fix anti vibration mounts or not because of heavy weight of the magnet, which weighs 7 to 8 tonns. PMS mentioned in their letter dated 19.3.1998 that these mountings were not necessary because of the inherent stability due to its heavy weight. Further, M/s. PMS have previous experience of shifting these kind of systems because of anti vibration mounts which were 100% successful and therefore they do not foresee any problem. It is further explained that the use of shock meters and the method adopted for transportation and installation was perfect.
13. FOURTHLY , it was submitted that magnet was wrapped with water proof covers with suitable and sufficient packing and other parts of the MRI equipment were packed in wooden cases, therefore, opposite party''s allegation that there was insufficient or unsuitable packing is totally wrong and not justified to contend that this calls for exclusion from the scope of the coverage of the policy. As per the allegation about the report of Shri K.R. Balakrishnan, Service Engineer, it is submitted that he only accompanied the magnet as a material handling person and his duty was to see that the equipment was transported as per instructions. He not being a specialist on reading of shock meters, the colour was mis -stated owing to typing error, but only after a specialist visited the site subsequently, then it was realized that the shock meters were tripped and accordingly the report was sent. Even J.P. Mistry, a representative of opposite party, also found that the shock meters were in a tripped position. It is submitted that there was no contradictory statement made by K.R. Balakrishnan as per the explanation given above.
14. FIFTHLY , the route chosen between Mumbai to Ahmedabad was thoroughly inspected by OPM after conducting survey, and inspection was done that there was no overhead obstructions, bridges and railway crossings. The magnetom was transported safely on the road. In spite of the road survey carried out, the complainant forced M/s. PMS to depute an engineer to accompany the truck carrying the magnet as a precautionary measure although OPM are also regular movers on the route.
15. SIXTHLY , report of J.P. Mistry Surveyor, Loss Assessor and Valuer appointed by opposite party gave his comments to the investigation report of M/s. Ashok Chopra and Co. and was of the view that the complainant''s claim is genuine and payable; that change in destination was conveyed to the opposite party prior to the transit of the equipment; the Surveyor observed that there was no mala fide intent on the part of the complainant; that the complainant is not at fault if PMS and OPM were proved to have failed to discharge their obligations; opposite parties can initiate action against these parties while settling the claim and Surveyors intended that the claim should be settled on constructive total loss basis because they did not test the equipment and that the complainant acted with due diligence and the machine was in good condition when disconnected. As for testing this equipment is concerned, it would cost additional expenditure of Rs.40 to 50 lakh and it cannot be done anywhere.
16. SEVENTHLY , it is contended by the complainant that the investigator never visited the site at Dholka and gave a report on his own conclusions. The underwriters were also never informed about the shifting of the equipment from Mumbai to Dholka to which they did not respond. Average life of the system was 10 to 12 years and the present day replacement cost of the new equipment is approximately over Rs. 5 crores. Despite the efforts made by the complainant by continuously corresponding with the opposite party, the opposite party took undue time in repudiating the claim as they repudiated after two years although they should have finalized the claim within six months of intimation. On these grounds, complainant claimed the total sum insured under the policy. The complainant prayed for a sum of Rs. 5,75,00,000 as compensation with interest at the rate of 18% from 31.3.1999 till realisation and Rs.6,00,000 for causing mental agony and legal expenses. Opposite Party''s Version
17. LEARNED Counsel for the opposite party submitted, firstly, that this complaint is barred by limitation as it has been filed after a period of 12 months from the date of alleged loss.
18. SECONDLY , it is contended that the machinery was being used for commercial purpose and, therefore, it does not come under the purview of the Consumer Protection Act, 1986.
19. THIRDLY , the insured had requested for a marine -cum -erection policy and also filled up the proposal form for the same. In the said proposal form, the site mentioned for installation of the MRI Machine was given as Shah Diagnostics Institute Pvt. Ltd., MRI and Lethotripsy Centre, Nursing College, New Civil Hospital Complex, Asarwa Road, Ahmedabad. The Marine -cum -Erection policy is an uninterrupted cover from the moment the consignment relating to a project leaves the warehouse of the supplier till the moment entire project is completed and tested. The marine cover for the consignment is granted in conjunction with the storage -cum -erection cover and the destination under the marine policy is necessarily the site on which the erection is to take place.
20. FOURTHLY , in order to reduce jerks and jolts to the magnet during transit anti vibration mounts (metal/rubber composites or a double layer of serrated neoprene pads) should be placed below the base frame of the magnet. The proposal was accepted subject to pre -acceptance inspection report issued by M/s. S.G. Kumar and Co. which specifically recommended in their report dated 15.12.1996 as to how to shift the magnet. In spite of the recommendation of M/s. S.G. Kumar and Co. that the magnetom should be placed on anti -vibration mounts, it was transported without using anti -vibration mounts, which had led to the loss and it is the duty of the assured and their agents to take required recommended measures for the purpose of averting or minimizing the loss.
21. FIFTHLY , opposite party was informed by the complainant that M/s. OPM had inspected the route on 31.1.1997 and informed that magnetom could travel safely on the road. It is contended that the said inspection took place in January, 1997 whilst the actual transit was made in September, 1997, i.e., after six months of inspection, during which period, the condition of the road could have been affected by rains due to monsoon. Hence report of January 1997 given by OPM cannot be relied upon to prove that the journey path was smooth and same in September, 1997.
22. SIXTHLY , it is further contended that the complainant had written several letters including the one dated 31.7.1997 informing the insurer that the magnetom will be transported to Dholka, Ahmedabad. The policy had been issued in conjunction with erection policy, wherein the site had been clearly stated and the insurer did not issue any endorsement for change of destination/voyage. The Marine Insurance Act of 1963, Section 47, Sub -Section (2), clearly states that, unless the policy otherwise provides where there is a change of voyage, the insurer is discharged from the liability. Section 48 of the Act discharges the insurer from any liability where there is a deviation without lawful excuse. In the said case, there was no lawful excuse as enumerated in Section 51 of the Act, it may also be noted that several packages containing the part of the MRI machine had already reached the site mentioned in the proposal form and only the magnetom was diverted to a godown, where it seems, there was no platform available to properly unload it.
23. SEVENTHLY , as per exclusion Clause 2.3 of inland transit Clause (a), it has clearly and specifically excluded losses/damages caused by insufficient or unsuitable packing. The insured had assured that packing was waterproof and it was suitable and sufficient for the magnetom. Admittedly, MRI machine was expensive costing nearly Rs.4,00,00,000 but the complainant did not take care to supervise and instruct the carriers to act as per the recommendations of the pre -inspection Surveyors, M/s. S.G. Kumar and Co.
Eighthly, The machine suffered a loss as the shock -meter installed by M/s. PMS indicated that it suffered a certain degree of shock during the course of transit/unloading. There was no outwardly visible damage to the machine, and without testing it is simply presumed that there have been loss or damage to the machine. The insured should provide sufficient proof that the machine was landed in damaged condition. They have refused to carry out testing, as the same would have led to additional expenses of Rs.40/50 lakh. Opposite party contended that without the machine being erected and tested, which is the normal policy condition, the alleged loss could not be correctly assessed.
24. NINTHLY , at the time of pre -insurance survey it was planned to shift the machine to Rajkot, later on, it was changed. The complainant claimed that he had informed the opposite party about the transit operation at every stage (reference to letters, Exhibits N and O at pages 67 -68) which will show that they informed only about the non -shifting of machinery but they do not talk about the change of destination. The reference made by the complainant to letter dated 31.7.1997, was never filed with the complaint, and hence it should not be considered as evidence. The two letters dated 29.7.1997 and 2.8.1997 have been placed on record (pages 65 -66, Exhibits L and M) wherein it has been stated that the machinery will be temporarily housed at farm house, Dholka. It is vehemently argued by the learned Counsel for the opposite party that these two letters have never been sent to them. All the letters that have been sent by the complainant have been duly receipted with acknowledgement of the same but these two letters strangely do not bear any acknowledgement by the opposite party. The complainant stated that the equipment would temporarily be housed at farm house at Thransad, Dholka but the machinery was not housed at that place which is clear from the survey report of Mr. Mistry. Mistry''s report clearly stated (page 169) that as the trailer could not proceed to the farm house destination due to the right angle turn from the main road being not possible as the road was narrow, the complainant was contacted by the trailer operator who instructed to drive the trailer to Dholka temple side nearby, and unload the machine, which clearly shows the third destination. Opposite party was never intimated of these changes and they never gave any consent to change the terms of contract in writing or otherwise.
25. THE magnetom was shifted by forklift and then by crane, which was not a desirable way of shifting and the machine was not handled by a specialist, which is negligence by the complainant.
26. WE have also perused the record, Survey report and affidavits filed by both the parties.
27. THE contention of the opposite party that the complaint is not maintainable because many questions of law and facts of complicated nature are involved and that it should be relegated to Civil Court is not acceptable, as this Commission has decided many such similar cases.
28. THE opposite party''s contention that the complaint is not maintainable because it is of commercial nature does not hold any ground considering firstly that the matter is of the year 1999 and this complaint is maintainable as on the date of filing under the Consumer Protection Act of 1986.
29. IN our considered view, the case of deficiency in service against opposite party has not been proved. Opposite party has rightly repudiated the claim. The grounds for dismissing the complaint are as under:
(a) Section 47(2) of the Marine Insurance Act of 1963, clearly states that unless the policy otherwise provides where there is a change of voyage, the insurer is discharged from the liability. Section 48 of the Act discharges the insurer from any liability where there is a deviation without lawful excuse. In the present case, Marine Policy was issued in conjunction with Erection Policy, wherein the site had been clearly stated. The alleged letters, dated 29.7.1997 and 2.8.1997, written by the complainant, which do not bear any acknowledgement by opposite party, clearly show that it is an after thought cover up made by the complainant. Both the letters are verbatim identical in nature except for the change of date, do not inspire confidence, extract of which is given hereunder: Letter dated 29th July, 1997 Dated: 29th July, 1997 Manager, United India Insurance Co. Ltd. 42, Cambatta Building, 3rd Floor, Maharshi Karve Road, Mumbai 400 020 For kind att. of Mr. J.N. Bhagwagar Dear Sir, Sub: Marine -cum -Erection Insurance of MRI Equipment "MAGNETOM M10" -Cover Ref: Your receipt No. 0036636 dated 8.1.97 for Rs.2,81,239 (Colln. No. 236362)
Further to our letter of 28th July, 1997, this is to inform you that the MRI equipment being transported from Mumbai to Gujarat Cancer Society at Ahmedabad will temporarily be housed in our Farm House at Thransad, Dholka, Ahmedabad, as the space where the equipment is to be installed at Gujarat Cancer Society is not yet ready. Kindly take note of this. Letter Dated 2nd August, 1997 Dated: 2nd August, 1997 Manager, United India Insurance Co. Ltd. 42, Cambatta Building, 3rd Floor, Maharshi Karve Road, Mumbai 400 020 For kind att. of Mr. J.N. Bhagwagar Dear Sir, Sub: Marine -cum -Erection Insurance of MRI Equipment "MAGENTCOM M10" -Cover Ref: Your receipt No. 0036636 dated 8.1.97 for Rs.2,81,239 (Colin. No. 236362) Further to our letter of 28th July, 1997, this is to inform you that the MRI equipment being transported from Mumbai to Gujarat Cancer Society at Ahmedabad will temporarily be housed in our Farm House at Thransad, Dholka, Ahmedabad, as the space where the equipment is to be installed at Gujarat Cancer Society is not yet ready. Kindly take note of this." The above letters clearly indicate that they were produced by the complainant to prove that he had informed the opposite party regarding the change of destination. The insurer did not issue any endorsement for change of destination. According to us, the insertion of these letters itself is a gross fraud played on the opposite party, and hence, the complaint fails.
(b) The machine had suffered certain degree of shocks during the course of transit/unloading. The insured had neither installed the machine nor tested it to prove that the machine was not in working order. Outwardly there was no damage to the machine. The damage that has been claimed has not been assessed. The Surveyor, M/s. Ashok Chopra and Company, has stated in the survey report regarding the occurrence'', which clearly indicate that this entire case has been modulated to prove the case in complainant''s favour. An extract of survey report is given hereunder to highlight this: "Occurrence: On 20.9.1997, the affected Magnet was inspected at Dholka by Mr. Chinmoy Dash, the Zonal Manager -Customer Support of PMS. The said Mr. Dash has been issued a letter dated 23.9.1997 to the insured, wherein it is stated that all the Shock Meters in the ranges of 5G, 10G and 15G have all tripped. According to Mr. Dash, this was an indication that the Magnet could be damaged and therefore he requested the insured to inform the insurers. However, there is considerable confusion caused by the said letter. The first copy/version states that un -tripped/normal shock meters have red colour flags which turn to blue when tripped. This letter was even accompanied by a hand sketch, indicating locations and details of shock meters, on which exactly the same flag colours are stated. Subsequently, Mr. Dash of PMS had issued another letter dated 29.9.1997 wherein he corrects himself stating that there is a typographical error in the letter of 23.9.1997 and that the blue colour should be read as red and vice versa."
Such important issue regarding shock meters has been dealt with by Mr. Dash of PMS, itself is an indication that in the name of typographical error the actual facts have been concealed. The Service Manager, Mr. Mark E. Taylor, of Oxford Magnet Technology Limited in his letter dated 11.12.1997, to J.P. Mistry, Surveyor, has concluded as under:"In Conclusion: Given your letter and the sequence of events described. I strongly suspect the magnet was delivered and sited intact but was subsequently moved to another (close) location and suffered a drop or high impact of some kind. At face value, the system is probably repairable but without inspection one cannot be sure. The question is really one of economics and whether the inspection, repair and re -testing cost will make the exercise a viable one."
The opinion of Mark E. Taylor also corroborates with what the Surveyor has noted.(c) PMS in their letter, dated 11.2.1998, stated that the previous experience of shifting magnets without anti -vibration fittings was successful and hence they did not foresee any problem and also that the affected Magnet weighs 7 -8 tons, and hence anti -vibration fittings were not necessary because of the inherent stability, in our view, sounds illogical. M/s. Ashok Chopra and Company in their survey report also stated the same. "We find it difficult to accept the PMS contention that recording of shocks, by attachment of shock meters, is mandatory but that it is not at all necessary to ensure that the equipment is protected by use of anti -vibration fittings. It is technically quite obvious that the stability of any equipment, due to weight or whatever has absolutely nothing to do with its capability of absorbing shocks".
We have repeatedly asked PMS to produce their Manuals or any documentation on the basis of which they have stated that in their organization Shock Meters are mandatory and to the effect that anti -vibration Mounts are not required to such for such transit. In their final letter to us, dated 13.4.1998, PMS have admitted that no such documentation exists." In the letter, dated 26.3.1998, PMS had stated that the Magnet was shifted by forklift and then lifted by a crane. But, OPM''s letter, dated 23.12.1997, states that the job was done manually. This discrepancy in the statements made by PMS and OPM are obvious, and hence, reliance cannot be placed on any of their statements. The complainant in his letter, dated 17.11.1997, stated that anti -vibration mounts were provided. But the letters of PMS dated 11.2.1998 and OPM dated 23.12.1997, conform that no such anti -vibration mounts were attached. Once again, there is a mis -statement made by the complainant. The complainant, first of all, claimed the entire Magnet system as total loss. It has been used and the cost of identical machine was around Rs. 4.0 crores for the life span of 10 to 12 years and the Magnet costs 60% of the value of the complete MRI system. In the present case, the machine was used for eight years and the residual value of Magnet is around 0.65 crores as per PMS.(d) In our view, the Magnet was shifted from Breach Candy Hospital premises on 31.8.1997, but the consignment was not sent to Ahmedabad. Firstly it was intended to be taken to Rajkot as per the pre -despatch survey report of S.G. Kumar and Company, dated 15.12.1996, but at the time of policy, dated 9.1.1997, it was marked as transit of MRI machine from Mumbai to Ahmedabad. It neither went to Rajkot nor Ahmedabad, it landed in a temple at another place known as Dholka, which is 40 kms away from Ahmedabad. A sensitive scientific and expensive equipment, such as this in the present case, would call for additional information to ascertain the risk at every stage of transit. Any change results in variation /novation of contract of insurance, which cannot be done without mutual agreement. The machine was despatched despite the fact that the erection site was not ready and the pre -inspection of survey was done much before the actual transit and the precautions that were taken while the equipment was unloaded at Dholka have not been placed properly on record and the guidelines laid down by the Siemens in handling and transportation procedures have not been followed.
30. WE place reliance on the Judgments passed by the Apex Court in Deokar Exports Pvt. Ltd. v. New India Assurance Company Limited, I (2009) CPJ 6 (SC)=I (2009) ACC 93 (SC), wherein it is held as under:
"A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter -proposal. The appellant had three choices. The first was to refuse to accept the counter -proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter -proposal of the respondent (that is respondent''s acceptance with modification) which would result in a concluded contract in terms of the counter -proposal. The third was to make a counter -proposal to the counter -proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter -proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date."
and Polymat India (P) Ltd. and Another v. National Insurance Co. Ltd., IV (2004) CPJ 49 (SC)=VII (2004) SLT 243=(2005) 9 SCC 174, wherein it is held as under:"It is the duty of the Court to interpret the document of contract as was understood between the parties. The terms of the contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of parties adversely."
31. IN the present case, the change of destination was not within the knowledge of the opposite party nor have they accepted the same. There is no deficiency in service on the part of the opposite party in repudiating the claim of the complainant. The complainant at the most may try to find some remedy if sufficient evidence can be brought on record against PMS or OPM in a Civil Court for not appropriately packing the equipment or not taking proper precautions during transportation of the same or unloading it with due care and caution considering it as a sensitive and costly equipment that too at a new destination.
32. IN view of the above decisions of the Apex Court, we find that the same logic has to be applied in the present case and as there was no concluded contract for change of destination between the parties, the complainant cannot get benefit of the changes. The complainant tried to create evidence in his favour by producing identical letters, dated 29.7.1997 and 2.8.1997, to opposite parties, which are clearly concocted by him.
33. CONSUMERS have to come with clean hands and their complaints should be genuine while seeking relief under the Consumer Protection Act, 1986. Where consumers'' intent is not bona fide and their conduct in pursuit of the complaint is fraudulent in adducing evidence, the Commission cannot give any relief.
34. IN view of the above discussion, the complaint is dismissed. No order as to cost. Complaint dismissed.
