Economic Transport Organisation vs Oriental Insurance Co. Ltd.

THIS appeal is directed against the order passed by the District Forum, Errnakulam, in O.P. No. 782/96. The opposite party is the appellant.

M/s. Maruti Udyog Ltd. sent automobile spare parts to the Popular Vehicles and Services Ltd., Kochi. The opposite party was entrusted with the work of transporting spare parts. The consignment was damaged and there was also short delivery and a sum of Rs. 43,305/- was claimed. The first complainant is the insurer who has paid the amount to the consignee and, therefore, he stepped into their shoes and this claim is made on that basis. A version was filed by the opposite party contending that the complaint is not maintainable as the consignment note contained a clause regarding owner''s risk and jurisdiction. It was also averred that the consignment was delivered by the opposite party to complainant No. 2 in such condition as it was received from the consignor and the packing was intact and no carton was torn or damaged. It was also alleged that no notice was served on the opposite party for conducting the alleged survey and the loss assessed is arbitrary and, therefore, the complaint is liable to be dismissed,

The District Forum found that the place of delivery being Kochi, part of the cause of action arose within the jurisdiction of the Ernakulam District Forum and, therefore, the maintainability of the complaint cannot be questioned. The District Forum also held that the second complainant being the consignee of the goods despatched through the opposite party, they come within the definition of consumer at least in the capacity of being beneficiary and it cannot be said that there is no privity of contract between the opposite party and the consignee. As regards the contention relating to survey the opposite party cannot raise any objection since Ext. A4 certificate has been issued acknowledging short delivery and damage to some of the items and the estimated loss is as per the survey report. The first complainant paid the amount to the consignee and obtained Ext. A9 subrogation letter and Ext. A 10 power of attorney. In that view the District Forum also held that there is no defect in the complaint. The amount claimed is in accordance with the survey report. Therefore, the District Forum passed an order directing the opposite party to pay Rs. 43,305/- together with interest at 18% per annum from the date of filing the complaint. Rs. 500/- was also awarded as costs.

LEARNED Counsel appearing for the appellant contended that M/s. Maruti Udyog Ltd. who sent the goods is not a party in the complaint, and the order passed by the District Forum is illegal. As pointed out by the District Forum as per Section 2(d) not only the person who hired or availed of service for consideration but also the beneficiary as defined in the section would fall within the definition of Consumer Protection Act, that is to say a beneficiary of such a service availed of with the permission of the hirer of service. In the circumstances the contention that the complaint is bad for non-joinder of Maruti Udyog Ltd., cannot be accepted. The owner of the goods was the complainant and it is for the benefit of the complainant, Maruti Udyog Ltd., set spare parts and, therefore, a complaint made by the beneficiary is quite legal and sustainable. It is also contended that the first complainant is competent to file this complaint. The second complainant is also a party to the proceedings and the National Commission has held recently that Insurance Company which paid the money can very well maintain a complaint. Therefore, this contention also has no force. As regards the contention that the survey was done without notice, as pointed by the District Forum Ext. A4 certificate was issued by the opposite party in which the short delivery and damage to some items was admitted and the loss estimated was as per the survey report.

THE foregoing discussion would show that there is no merit in the appeal and it is accordingly dismissed. Appeal dismissed.