D.Radhakrishnan vs NEW INDIA ASSURANCE CO. LTD.

THIS appeal is directed against the order the 7th day of December, 1995 in C.D.P. No. 92/95 on the file of District Consumer Disputes Redressal Forum, Tuticorin.

THE appellant D. Radhakrishnan, Sattur, the owner of the lorry is the 2nd opposite party while the respondents 1 and 2 are complainants namely New India Assurance Co. Ltd. and M/s. S.R. Traders and respondent No. 3 is the 1st opposite party namely M/s. N.R. Transport. We will refer to the array of parties as in the complaint in order to avoid any confusion.

The 1st complainant is the New India Assurance Company Ltd. The 2nd complainant is dealing in safety matches. The 2nd complainant on 13.4.1995 entrusted 2,710 bundles of safety matches worth Rs. 2,84,550/- with the 1st opposite party a lorry transport company to be delivered to the consignee at Rathodara. The 2nd opposite party is the owner of the vehicle TN-67-8141 in which the suit consignment was being transported.

WHEN the consignment was on transit the vehicle met with an accident and caught fire and in that accident the entire consignment was burnt to ashes. The accident took place in Karad-Chiplun Road in Maharashtra. The matter was reported to the concerned Police Station besides being intimated to the 1st complainant insurer. The Surveyor of the 1st complainant inspected the spot on 20.4.1995 and submitted a detailed report assessing the damage. The accident took place due to rash and negligent driving of the truck by the driver of the opposite parties. The 1st opposite party also issued a damage certificate on 7.6.1995 admitting the damages.

THE 2nd complainant sent a claim notice to the opposite parties. THE 2nd complainant, the owner of the suit consignment insured the consignment with the 1st complainant. THE 1st complainant has settled the claim at Rs. 3,23,554/- on 21.6.1995. The 2nd complainant has executed a letter of subrogation and special power of attorney in favour of the 1st complainant. Hence the 1st complainant is entitled to release the amount from the opposite parties. The opposite parties has common carriers are bound to deliver the goods entrusted to them in a sound condition. Alleging deficiency in service on the part of the opposite parties, the complainant launched a complaint before the Forum below seeking to recover the sum of Rs. 3,23,554/- from the opposite parties.

THE opposite parties filed objections reflecting as below.

THE complaint is not maintainable. THEre is a valid insurance policy with the National Insurance Company dated 21.11.1990 as regards the truck in question. THE opposite parties are not at all liable for the claim as made by the complainant and if at all if there is any liability, the liability for the claim so made can be mulcted upon the National Insurance Company. THErefore this complaint without impleading National Insurance Company is not maintainable. The Forum below after taking into consideration the materials placed on record and after hearing the projection of hues of views of the respective parties through their learned Counsel, ultimately allowed the complaint directing the opposite parties 1 and 2 to pay the 1st complainant jointly and severally a sum of Rs. 3,23,554/- with interest, @ 12% p.a. from 21.6.1995 till payment is effected and another sum of Rs. 1,000/- by way of costs within 2 months from the date of its order.

Aggrieved by the order as above, the present action had been resorted to by the appellant/opposite party No. 2.

ARGUMENTS of learned Counsel Mr. A. Ganesan, representing learned Counsel Mr. S. Parthasarathy, appearing for the appellant and arguments of learned Counsel Mr. Elveera Ravindran, representing the complainants 1 and 2/respondents were heard. Though notice on the 3rd respondent/1st opposite party M/s. N.R. Transports, had been served in this action, they choose to remain absent in the sense of not engaging a Counsel of their choice.

THERE is no pale of controversy whatever that the consignment in question consisting of 2,710 bundles of safety matches belonging to the 2nd complainant M/s. S.R. Traders valued about Rs. 2,84,550/- sent in the lorry belonging to the 2nd opposite party D. Radhakrishnan through the 1st opposite party M/s. N.R. Transports, completely got destroyed by fire when the lorry met with an accident in Maharashtra State before ever the consignment was delivered to the consignee. It is also not in dispute that the lorry met with an accident on account of the rash and negligent act of the driver of the vehicle belonging to the opposite parties. Yet another matter about which there is no controversy is that the entire consignment of safety matches got destroyed and there was a total wreck in the sense of there remaining no salvage at all. THEREfore, the loss occurred was to the tune of Rs. 2,84,550/- the value of the safety matches on the date of the accident. THERE is also no dispute that the freight quantified in a sum of Rs. 6,000/- had been paid for the transport of the consignment from Kovilpatti to Rathodara as evidenced by Ex. A8. The Forum below finding that the lorry met with an accident on account of the rash and negligent act of the driver belonging to the opposite parties found deficiency in service on the part of the opposite parties and computed the value of the claim quantified in a sum of Rs. 3,23,554/-. We are unable to understand how the Forum below was in a position to quantify the claim in a sum of Rs. 3,23,554/- in the absence of particulars made available to it either by way of averments in the complaint or by way of tangible materials in the shape of documents marked as exhibits in the case on hand. It appears the value had been so computed by the Forum below in view of the fact that the complainant Insurance Company settled the claim to the 2nd complainant in the said sum and nothing further. When we probed the matter further, we are able to discern as argued by the learned Counsel appearing for the respondents 1 and 2 that 10% profit margin had been added to the value of the goods destroyed by fire besides other expenses. We are at loss to understand as to how the 1st complainant Insurance Company settled the claim with the 2nd complainant even agreeing to pay the 10% profit margin the 2nd complainant would have made by the sale of the safety matches in the consignment. The axiomatic preposition of law is that the Insurance Company like the 1st complainant can indemnify the loss to the insured only to the extent of the actual loss suffered and nothing further. No doubt, beyond the value of the safety matches quantified in a sum of Rs. 2,84,550/- the 2nd complainant also incurred freight charges of Rs. 6,000/-; all total the 2nd complainant can be said to have sustained a damage of Rs. 2,90,550/- (Rs. 2,84,550/- + 6,000/-). In this view of the matter, the award made by the Forum below quantified in a sum of Rs. 3,23,554/- is not correct and if at all the amount that would be payable to the 2nd complainant would be Rs. 2,90,550/- the actual loss suffered by him. Therefore, the award so made by the Forum below deserves reduction as indicated above. The rate of interest @ 12% by the Forum below on and from 21.6.1995 the date on which the insurance claim had been settled till payment appears to be reasonable. The only thing that has to be done is the interest has to be calculated from the said date not on Rs. 3,23,554/- but on Rs. 2,90,550/-.

LEARNED Counsel appearing for the appellant would seriously contend as had been contended before the Forum below that if at all there is any liability, the liability will be on the National Insurance Company in view of the fact that an insurance policy had been taken by them with regard to the vehicle. The said learned Counsel, we rather feel is unable to understand the distinction and difference between the insurance policy regarding the vehicle and the carriers legal liability policy. It appears though the insurance policy had been taken with regard to the vehicle in question, yet, no carriers legal liability policy had been taken with National Insurance Company. This is vouchsafed by Ex. A15 letter dated 26.9.1995 written by the New India Assurance Company Ltd., Tirunelveli to M/s. National Insurance Co. Ltd., Kovilpatty and Ex. A16 letter dated 29.9.1995 of National Insurance Company Ltd., Kovilpatty to New India Assurance Co., Ltd., Tirunelveli. A perusal of these letters clearly indicates that National Insurance Company Ltd., had not issued any carriers legal liability policy to the vehicle in question namely TN-67-8141. Such being the case the argument as advanced by the learned Counsel for the appellant has to tumble down with a big thud without any effect.

FOR the reasons as above the appeal deserves to be allowed partly to the extent indicated as above in the sense of modifying the award of the FORum below quantified in a sum of Rs. 2,90,550/- besides costs of Rs. 1,000/- totalling to Rs. 2,91,550/- with interest to be paid on Rs. 2,90,550/- @ 12% p.a. from21.6.1995 till payment and the liability of the opposite parties 1 and 2 will be joint and several. The appeal is thus disposed of. But in the circumstances, we make no order as to costs. Appeal partly allowed.