KISHAN ROADWAYS vs National Insurance Co. Ltd.

THIS First Appeal is directed against the Order dated 30th September, 1994 of the Gujarat State Commission at Ahmedabad allowing the complaint and directing the opposite party (appellant herein) to pay to the National Insurance Company Ltd. a sum of Rs. 1,09,566/- together with interest at the rate of 18% per annum from May 1,1991 till payment is made together with costs of Rs. 2,000/-.

THE complaint was filed by M/s. National Insurance Company Ltd. as complainant No. 1 and M/s. Kishan Roadways, opposite party and appellant herein. It was alleged in the complaint that Madhusudan Industries Ltd. booked consignment of 9900 kgs. of Rice Bran Oil Raw Grade under consignment Note No. 215 with Kishan Roadways. It is the common case of the parties that the said consignment was despatched in Tanker No. GRP 6296 which turned turtle at Ghodasar Cross Road on2.1.1991 and as a result thereof, there was a leakage of oil which was considered as 9850 kgs. valued at Rs. 1,43,550/-. THE said consignment was insured with complainant No. 1 who settled the claim made by the complainant No. 2 and paid Rs. 1,09,566/- to complainant No. 2. THE complainant No. 2 executed a letter of subrogation and special power of attorney in favour of complainant No. 1. As the claim was not settled by Kishan Roadways, the complaint was filed for recovery of Rs. 1,09,566/- together with interest at the rate of 18% per annum besides costs. THE main defence of Kishan Roadways before the State Commission was that complainant No. 2 has no right or authority to transfer, assign or subrogate its right to claim damages and therefore, subrogation in favour of complainant No. 1 is not valid. It was pleaded that M/s. Kishan Roadways is merely a broker and not a carrier and, therefore, it is not liable as a carrier. The State Commission came to the conclusion that complainant No. 1 has stepped into the shoes of complainant No. 2 on the payment of loss suffered by complainant No. 2 and thus entitled to claim the same rights as complainant No. 2. On the question whether the opposite party is merely a broker, the State Commission on the appreciation of the evidence expressed that there is no doubt that the opposite party had booked the consignment of complainant No. 2 which was to be delivered at Rajkot, that they had issued consignment note in which registration number of the oil tanker is also mentioned, that there is absolutely no evidence on record to show that the tanker did not belong to the opposite party, that the fact remains that the opposite party had booked the aforesaid consignment of oil and transported it in the oil tanker for delivery at Rajkot and that considering all the facts and circumstances of the case the opposite party is accountable as a carrier. The State Commission allowed the complaint and directed the opposite party to pay to complainant No. 1 a sum of Rs. 1,09,566/- together with interest at the rate of 18% from May 1,1991 till payment besides costs of Rs. 2,000/-.

We have heard the Counsel for the parties and perused the records. The Counsel for the appellant submitted that the Insurance Company has no locus standi to file a complaint and the letter of subrogation in its favour is not valid. The Insurance Company is not the sole complainant in the complaint filed before the State Commission. The main consignor has joined in instituting the complaint as complainant No. 2. This Commission has already taken the view that the Insurance Company is also a consumer qua the carrier if the Insurance Company has joined the consignor while suing the carrier. As all the interested parties have joined in filing the complaint, the carrier cannot question the locus standi. It is not the case where the Insurance Company alone on the basis of letter of subrogation has filed the complaint. In Transport Corporation of India Ltd. v. The Davangera Cotton Mills Ltd. and Ors. (Revision Petition No. 507 of 1993) this Commission has held that the Transport Company is liable to indemnify either of the two for the loss of the goods.

IT is vehemently urged by the Counsel for the appellant that the appellant is a broker and in whose presence the contract between the consignor and the tanker owner was arranged by the appellant and the finding of the State Commission that the appellant is accountable as a carrier is against the records. Reliance is placed on the decision of this Commission in A.S. Pai v. M/s. Deluxe Raadlines, First Appeal No. 503 of 1993 decided on 14th August, 1995=III (1995) CPJ 44 (NC). As per the definition of common carrier, a person engaged in the business of transporting for hire, property from place to place, is a common carrier. Every one who undertakes to carry for anyone who asks him, is a common carrier. The contract of carriage has been entered into between the consignor Madhusudan Industries Ltd. and M/s. Kishan Roadways. The consignment Note No. 215 dated 2.1.1994 shows that the consignment was to be carried from Rakhial to be delivered to Ramvijay Soap Factory at Rajkot. The consignment note is on the printed consignment note of Kishan Roadways (Ahmedabad) and is signed on behalf of the Kishan Roadways. It is not disclosed in the consignment note as to who is the principal of M/s. Kishan Roadways. There is a consideration of Rs. 1,500/- for carriage of the goods to be paid cash at destination. The consignment note however, mentions that M/s. Kishan Roadways is only the broker issuing a transit pass in the name of the owner of the tanker but that is not enough to establish that M/s. Kishan Roadways had entered into a contract for carriage of oil as broker or agent of some other person. The very name Kishan Roadways suggests that they were holding out as carriers. The State Commission was thus fully justified in coming to the conclusion that the appellant was a common carrier and is liable as such. Reliance on the case of A.S. Pai is misconceived as that was decided on its own peculiar facts. Consumer means any person who hires or avails any service for consideration. The hiring of service and consideration are two essential ingredients of the definition contained in Section 2(1)(d)(ii) of the Act. In that case there was no material on the record relevant to the question of hiring of services for consideration as the appellant in that case had not charged from the complainant any commission or service charges and the appellant there did not come into picture at all after introduction of the truck owner. It is on these facts that it was held that complainant therefor, was no t a consumer. In the result, the appeal fails and is dismissed with costs. Counsel fee Rs. 2,000/-. Appeal dismissed.