GLAXO INDIA LTD vs ECONOMIC TRANSPORT ORGANISATION

THE genesis and sequence of the claim made by the complainants is this. M/s. Glaxo India Limited, Complainant No. 1, which transacts the business of medicines, pharmaceuticals products, chemicals and raw products, etc. hired the services of Economic Transport Organisation, the Opposite Party and entrusted to them a consignment of 554 cartons of various medicines for carriage consideration and safe delivery from their godown at Nasik vide truck No. BR31/2273, LR No. 683-5882 dated 28.9.1999. The said consignment was worth Rs. 43,32,078. It was a stock transfer to their C&F agencies, M/s. Candida Enterprise, Guwhati. The complainant despatched the consignment through three transfer proforma invoices and stock transfer document Nos. 20001, 20002, 20003 dated 28.9.1999. L/R was issued by the opposite party who was complainant ''s regular transporter.

THE truck left Nasik on 28.9.1999 and was expected to reach Guwhati within 15-20 days. However, the same did not reach even after 30 days. Matter was brought to the notice of the opposite party on 29.10.1999. The opposite party ''s Branch Manager at Nasik had already lodged a criminal complaint on 26.10.1999 with Satpure Police Station, Nasik against the driver of the vehicle for misappropriation of the above said consignment. The opposite party also circulated a letter dated 3.11.1999 to all its branches giving the particulars of the L/R, vehicle number, owner and the driver of the vehicle for inquiring with check-Nakas enroute to Guwahati and the concerned agencies. It transpired that the truck number was false and its all the documents were manipulated by the truck driver who was working in cahoots with the owner. Chassis number and the Engine number of the vehicle were fake. Complainant No. 1 had obtained insurance from M/s. New India Assurance Company Limited, Complainant No. 2. After receiving the information about loss, the Insurance Company deputed M/s. J Basheer and Associates Surveyors Private Limited, Mumbai, who submitted their report. Complainant No. 2 settled the claim of the first complainant and paid an amount of Rs. 43,32,078. The second complainant also incurred the expenses of Rs. 68,700 in the investigation of this case. Consequently, the complainants have claimed a total sum of Rs. 44,00,778 with interest at the rate of 18% p.a. from the date of filing of this case till realization with costs. It is contended that negligence, imperfection and deficiency in services on the part of the opposite party is apparent on the record. Since the second complainant has subrogated to the rights and remedies of the complainant No. 1 due of the said non-delivery loss of the consignment therefore the complainant No. 2 is entitled to have the said amount.

THE defences set up by the opposite party are listed as follows. It is alleged that the New India Assurance Company Limited is not a consumer, in view of the Supreme Court authority in Oberai Forwarding Agency v. New India Assurance Co. Ltd., I (2000) CPJ 7 (SC)=II (2000) SLT 86=I (2000) CLT 259 (SC)=2000 (2) SCC 407 and Textiles and Yarn (P) Ltd. v. Indian National Steamship Co. Ltd., AIR 1964 Cal. 362 and Marine Containers Services, South Private Limited v. Go Go Garments, (1998) 3 SCC 247.

IT was further contended that since both the opposite parties are companies, therefore, they are not consumers as per Tamilnadu State Consumer Disputes Redressal Commission, Chennai in Fineskin Leathers and Supplies Co. Pvt. Ltd. v. New India Assurance Co. Ltd., II (1999) CPJ 167. Again the consignment clearly goes to show that the consignment was booked for transportation at owner ''s risk and as such the opposite party is not liable for the above said claim. Cause of action arose at Calcutta. The subrogation letter is a subsequent and fabricated document. It is stated that the opposite party took all the steps. It lodged the complaint with the Satpure Police Station at Nasik. The name of the driver is Bhudhan Halwai S/o Sh. Ramdhan, driver licensing No. 3468/97 Hisar and its owner was Sh. Ashok Kumar Gupta S/o Sh. Laxmi Narayan, Village Mahuva, Patna-20, Bihar, Engine number and Chassis number were also mentioned. The incident was also reported in the newspaper Lokmat at Nasik, Asian Age, Mumbai and the Times of India. Subsequently it came to light that registration number plate, documents, chassis number, engine number were fake. The opposite party took all the precautions to check all the documents which turned out to be bogus. The opposite party has followed the provisions of Section 152 of the Contract Act. Consequently opposite party is not negligent or deficient in service for the above said incident.

WE have heard the Counsel for the parties. The first submission made by the Counsel for the opposite party was that respondent No. 2 is not a consumer.

THIS argument was stated for its outright rejection. The facts of this case are no more res integra. As a matter of fact, this controversy already stands settled in an authority by the Apex Court by Constitution Bench in Economic Transport Organisation v. M/s. Charan Spinning Mills (P) Limited and Anr., I (2010) CPJ 4 (SC)=II (2010) SLT 44=2010 (2) SCALE 427. The following paras are germane to the present controversy: "10. The assured entrusted the consignment for transportation to the carrier. The consignment was insured by the assured with the insurer. When the goods were damaged in an accident, the assured, as the consignor-consumer, could certainly maintain a complaint under the Act, seeking compensation for the loss, alleging negligence and deficiency in service. The fact that in pursuance of a contract of insurance, the assured had received from the insurer, the value of the goods lost, either fully or in part, does not erase or reduce the liability of the wrongdoer responsible for the loss. Therefore, the assured as a consumer, could file a complaint under the Act, even after the insurer had settled its claim in regard to the loss. 19. Whether the document executed by the assured in favour of the insurer is a subrogation simpliciter, or a subrogation-cum-assignment is relevant only in a dispute between the assured and the insurer. It may not be relevant for deciding the maintainability of a complaint under the Act. If the complaint is filed by the assured represented by the insurer as its attorney holder, or by the assured and the insurer jointly as complainants, the complaint will be maintainable, if the presence of insurer is explained as being a subrogee. Whether the amount claimed is the total loss or only the amount for which the claim was settled would make no difference for the maintainability of the complaint, so long as the consumer is the complainant (either personally or represented by its attorney holder) or is a co-complainant along with his subrogee. On the other hand, if the assured (who is the consumer) is not the complainant, and the insurer alone files the complaint in its own name, the complaint will not be maintainable, as the insurer is not a ''consumer '', nor a person who answers the definition of ''complainant '' under the Act. The fact that it seeks to recover from the wrongdoer (service provider) only the amount paid to the assured and not any amount in excess of what was paid to the assured will also not make any difference, if the assured-consignor is not the complainant or co-complainant. The complaint will not be maintainable unless the requirements of the Act are fulfilled. The remedy under the Act being summary in nature, once the consumer is the complainant or is a co-complainant, it will not be necessary for the Consumer Forum to probe the exact nature of relationship between the consumer (assured) and the insurer, in a complaint against the service provider. 24. We therefore answer the questions raised as follows: (a) The insurer, as subrogee, can file a complaint under the Act either in the name of the assured (as his attorney holder) or in the joint names of the assured and the insurer for recovery of the amount due from the service provider. The insurer may also request the assured to sue the wrongdoer (service provider). (b) Even if the letter of subrogation executed by the assured in favour of the insurer contains in addition to the words of subrogation, any words of assignment, the complaint would be maintainable so long as the complaint is in the name of the assured and insurer figures in the complaint only as an attorney holder or subrogee of the assured. (c) The insurer cannot in its own name maintain a complaint before a Consumer Forum under the Act, even if its right is traced to the terms of a Letter of subrogation-cum-assign-ment executed by the assured. (d) Oberai is not good law insofar as it construes a Letter of subrogation-cum-assignment, as a pure and simple assign-ment. But to the extent it holds that an insurer alone cannot file a complaint under the Act, the decision is correct. "

Under these circumstances, the arguments addressed by the Counsel for the opposite party have to be eschewed out of consideration.

THE last submission made by the learned Counsel for the opposite party was no negligence or deficiency in service can be attributed on the part of the opposite party. Opposite party had performed its duty diligently. It had taken all the precautions, to examine the vehicles documents and driving licence which all turned out to be bogus, subsequently. The opposite party cannot be held liable for negligence, conversion, misfeasance, non-feasance failure to take due and diligent care on its part or on the part of its servant or agent as falsely applied by the opposite party. Our attention was invited towards the final report of police. The relevant portion of the report runs as follows: "Though deligent search and several attempts on our part in respect of the said offence, no fruitful information followed in view of the accused and his vehicle information given by the Complainant vehicle No. was found wrong the name and address of the accused was also wrong. No important information is received in respect of the sccused. It is sure that the offence is committed by the accused using bogus chassis No., Engine No. and by giving wrong address of his residence. On inquiry in the said village, it was confirmed that no reason exists and the said village by that name. "

THE attention of the Commission was also invited towards the Surveyor ''s report which does not show that the opposite party was negligent. We are unable to locate any substance in these feeble argument. In the above said authority in reference of Economic Transport Organization v. Charan Spinning Mills (P) Ltd. and Anr., (supra), it was held that - "27. It is no doubt true that Section 14(1)(d) of the Act contemplates award of compensation to the consumer for any loss suffered by consumer due to the negligence of the opposite party (Carrier). Section 9 of Carriers Act does not lay down a preposition that a carrier will be liable even if there was no negligence on its part. On the other hand, it merely raises a presumption that when there is loss or damage or non-delivery of goods entrusted to a carrier, such loss, damage or non-delivery was due to the negligence of the carrier, its servant and agents. Thus where the consignor establishes loss or damage on non-delivery of goods, it is deemed that negligence on the part of the carrier is established. The carrier may avoid liability if it establishes that the loss, damage or non-delivery was due to an act of God or circumstances beyond its control. Section 14(1)(d) of the Act does not operate to relieve the carrier against the presumption of negligence created under Section 9 of the Carriers Act. 28. The contention of appellant that the presumption under Section 9 of the Carriers Act is available only in suits filed before Civil Courts and not in other civil proceedings under other Acts, is not tenable. This Court in Patel Roadways Ltd. v. Birla Yamaha Ltd., 2000 (4) SCC 91, has observed: "The principle regarding the liability of a carrier contained in Section 9 of Carriers Act namely, that the liability of a carrier is that of an insurer and that in a case of loss or damage to goods entrusted to the carrier the plaintiff need not prove negligence are applicable in a proceeding before the Consumer Forum. The term ''suit '' has not been defined in Carriers Act nor it is provided in the said Act that the term ''suit '' will have the same meaning as in CPC. Therefore, the term ''suit '' has to be understood in its ordinary dictionary meaning. In that sense, term ''suit '' is a generic term taking within its sweep all proceedings initiated by a party for valuation of a right vested in him under law. It is true that a proceeding before Consumer Forum is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised are too contentious to be decided in summary proceedings it may refer parties to Civil Court. That, however, does not mean that proceedings before the Consumer Forum is to be decided by ignoring the express statutory provision of Carriers Act in a proceeding in which a claim is made against a common carrier proceeding before the Consumer Forum comes within the sweep of term suit. "

IT is thus apparent that this objection was raised merely for the sake of cavil. The petitioner is vicarious liable for the omissions and commissions committed by his agents and servants. The opposite party cannot wriggle out of the liability on the plea that it cannot be held liable as there is no negligence on his part.

ON a conspectus of all the facts and circumstances as well as the assessment of evidence and law case we hereby allow the complaint. The opposite party is directed to pay a sum of Rs. 44,778 with interest at the rate of 9% p.a. from the date of the filing of this complaint dated 2.11.2000 to the complainant No. 2 till its realization. Litigation charges in the sum of Rs. 50,000 are also awarded in the favour of the complainant No. 2 against the opposite party. All these amounts to be paid within one month failing which they will further carry interest at the rate of 9% p.a. The case stands disposed of. OP disposed of.