INDIAN PETROCHEMICALS CORPORATION LTD. vs PINDI ROAD LINKS PRIVATE LTD.

THE complainant No. 1 M/s. Indian Petrochemicals Corporation Ltd. is a Government undertaking having its head office at Baroda and its factory/branch office at Nagothane. THE complainant No. 1 deals with chemicals and as such had obtained an insurance policy No. 21/493 from complainant No. 2, the New India Assurance Company Ltd. for coverage of the risk of transportation of its goods by road Ex. Nagothane to/with destination at M/s. Indian Petrochemicals Corporation Ltd. at HRG, 418 G.T. Road, Shahdara, Delhi. THE complainant No. 1 entrusted 360 bags of PPHPf Gr. SS30NS valuing Rs. 6,03,000/- for transportation and door delivery at complainant No. 1''s Branch/Factory Office at 418, G.T. Road, Shahdara, Delhi. THE lorry of the O.P. carrying aforesaid consignment met with an accident resulting considerable loss to the consignment for which the complainant No. 1 lodged its claim with complainant No. 2, the Insurance Company. THE Insurance Company as per terms and conditions of the policy passed and accepted the claim of complainant No. 1 for the loss of Rs. 2,58,145/- and paid the same to the complainant No. 1 by cheque. On receipt of the said amount the complainant No. 1, the insured, executed discharge voucher dated 7.10.1996 in full and final settlement of its claim and also executed a letter of subrogation in favour of complainant No. 2 Insurance Company. THE O.P. though admitted the factum of damages/short delivery of the entrusted consignment failed to make good the loss and as such the complainant Nos. 1 and 2 filed the present complaint jointly for the recovery of Rs. 5,50,000/- from the O.P. together with the interest @ 24% p.a.

THE O.P. was duly served and thereafter one Sh. Dinesh Kumar, A/Representative appeared on behalf of the O.P. on 28.8.1998 and sought time to file reply/written version on behalf of the O.P. However, thereafter, none appeared on behalf of the O.P. nor filed any reply/written version. Accordingly, the O.P. was directed to be proceeded ex parte in the present proceedings vide order/proceedings dated 17.2.1999. The complainants have led their evidence by way of affidavits of Sh. B.M. Joshi on behalf of the complainant No. 1 and that of Sh. P.K. Dave was filed by way of evidence on behalf of complainant No. 2.

We have carefully perused the evidence and documents/material on record, as well as, heard the arguments advanced on behalf of the complainants only as none was present on behalf of the O.P. even at the stage of arguments. At the very outset it is noticed that the present complaint has been filed by the complainant No. 2 Insurance Company on the basis of alleged letter of subrogation issued by the complainant No. 1 in favour of complainant No. 2. The letter of subrogation dated 15.7.195 is annexed as Annexure-P-7 to the complaint. In this regard the Hon''ble supreme Court of India in case entitled Oberoi Forwarding Agency v. New India Assurance Company Ltd. and Another, reported as I (2000) CPJ 7 (SC)=II (2000) SLT 86=1986-2002 Consumer 5945 (NS), has held as under: "With the distinction between the subrogation and assignment in view, let us examine the letter of subrogation executed by the second respondent in favour of the first respondent. Its operative portion may be broken up into two, namely (i) ''we hereby assign, transfer and abandon to you all our rights against the Railway Administration Road Transport carriers or other persons whatsoever, caused or arising by reason of the said damage or loss and grant you full power to take and use all lawful ways and means in your own name and otherwise at your risk and expense to recover the claim for the said damage or loss''; and (ii) ''we hereby subrogate to you the same rights as we have in consequence of or arising from the said loss or damage''. By the first clause the second respondent assigned and transferred to the first respondent all its rights arising by reason of the loss of the consignment. It granted the first respondent full power to take lawful means to recover the claim for the loss, and to do so in its own name. If it were a mere subrogation, first the word ''assigned'' would not be used. Secondly, there would not be a transfer of all the second respondent''s rights in respect of the loss but the transfer would be limited to the recovery of the amount paid by the first respondent to the second respondent. Thirdly, the first respondent would not be entitled to take steps to recover the loss in its own name; the steps for recovery would have to be taken in the name of the second respondent. Thus, by the first clause there was an assignment in favour of the first respondent. The second clause, undoubtedly, used the word ''subrogate'', but it conferred upon the first respondent "the same rights" that the second respondent had "in consequence of or arising from the said loss or damage", which meant that the transfer was not limited to the quantum paid by the first respondent to the second respondent but encompassed all the compensation for the loss. Even by the second clause, therefore, there was an assignment in favour of the first respondent. Learned Counsel for the first respondent submitted that the letter of subrogation and the special power of attorney should be read together and, so read, it would be seen that the first respondent was not an assignee of the second respondent''s rights but was merely subrogated to them. The terms of the letter of subrogation are clear. They cannot be read differently in the light of another, though contemporaneous, document. Now, as is clear, the loss of the consignment had already occurred. All that was assigned and transferred by the second respondent to the first respondent was the right to recover compensation for the loss. There was no question of the first respondent being a beneficiary of the service that the second respondent had hired from the appellant. That service, namely, the transportation of the consignment had already been availed of by the second respondent, and in the course of it the consignment had been lost. The first respondent, therefore, was not a ''consumer'' within the meaning of the Consumer Protection Act and was, therefore, not entitled to maintain the complaint. By reason of the transfer and assignment of all the rights of the second respondent in the first respondent''s favour, the second respondent retained no right to recover compensation for the loss of that consignment. The addition of the second respondent to the complaint as a co-complainant did not, therefore, make the complaint maintainable."

IN view of the above law laid down by the Hon''ble Supreme Court in the above mentioned decision and perusal of the contents of the letter of subrogation annexed as Annexure P-7 to the complaint, it is apparent that the complainants in the present complaint are not consumers within the meaning of the Act and as such the present complaint filed by the complainants is not maintainable in law. Accordingly, the present complaint filed by the complainants is liable to be dismissed on the above said ground alone. It is clarified that the dismissal of the present complaint will in no way bar the complainants from seeking its remedy claimed in the present complaint before any other Court/Forum as they may be advised. In the circumstances of the case there is no order as to costs.

THE above mentioned complaint stands disposed of in above terms. Complaint disposed of.