NAGALAKSHMI LORRY SERVICE vs N.S.GANESH BABU

THE appeal is directed against the order dated 26.9.1997 in O.P. 380/1996 on the file of the District Consumer Disputes Redressal Forum, Chennai (North).

THE appellants are the opposite parties, transport operators while the respondents are the complainants. Succinct facts may be related for understanding the crux of the issue involved for consideration in this action.

The complainants booked a Yamaha Motor Cycle bearing Regn. No. TAA 4919 at Madras to be delivered at Madurai through the opposite parties, lorry transport operators. The freight was agreed to be paid on effecting delivery of the vehicle. The said vehicle was not at all delivered at the destination by the opposite parties. It appears, the complainants made an insurance claim with regard to New India Assurance Company Ltd., Madurai, and the claim for the loss of the vehicle have been settled in his favour for a sum of Rs. 14,000/-.

THE complainant would say that the non-delivery of the vehicle at the destination at Madurai would tantamount to deficiency in service on the part of the opposite party, transport operators. Alleging the factors as above, the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint.

THE opposite parties, lorry transport operators, in pith and substance would contend that there was no deficiency in service on their part. THEy would further contend that while the vehicle, after having been booked was in their custody, a theft of the vehicle had taken place and consequently they lodged an F.I.R. in the concerned police station for tracing out the vehicle. THEre is no negligence on their part. THE complaint, as such, is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, directed the opposite parties to pay to the complainant a sum of Rs. 14,000/- towards the loss of the vehicle with compensation of Rs. 5,000/- and cost of Rs. 1,000/- within two months from the date of its order failing which the complainant would be at liberty to invoke Section 27 of the Consumer Protection Act, 1986. Aggrieved by the order as above, the opposite parties resorted to the present action by engaging a Counsel of their choice, namely learned Counsel Mr. S.R. Rajagopal.

ON service of process, the respondents/complainants entered appearance through a Counsel of their choice, namely learned Counsel Mr. R. Singaravelu.

WE heard the arguments of respective learned Counsel for the parties. The only point that arises for consideration is as to whether the order of the Forum below is sustainable in law, on the facts and in the circumstances of the case.

There is no pale of controversy that the motor-cycle in question was entrusted by the complainants to the opposite party, lorry transport operators for effecting delivery at Madurai. It is also not in dispute that the freight charges were deferred to be paid after effecting the delivery of the vehicle at Madurai. In such circumstances, it cannot at all be stated that the complainants had not at all availed of the services of the opposite parties, lorry transport operators for consideration for transporting the vehicle from Madras to Madurai.

ADMITTEDLY, while the vehicle was in the custody of the opposite parties, a theft had taken place. Whatever be the reason for the loss of the vehicle, the opposite party, lorry transport operators are squarely liable to compensate the complainant for the loss of the vehicle entrusted to their custody on the face of the decision emerging from the Apex Court of the country in the case of Patel Roadways Ltd. v. Birla Yamaha Ltd., I (2000) CPJ 42 (SC)=III (2000) SLT 554= AIR 2000 SC 1047. Pertinent it is at this juncture to refer to the decision of the Apex Court of the country in the case of Oberai Forwarding Agency v. New India Assurance Co. Ltd. & Anr., I (2000) CPJ 7 (SC)=II (2000) SLT 86=2000 (1) CTC 556. The Supreme Court in that said case laid down the dictum that once the consignor claimed the value of the consignment from the Insurance Company, the Insurance Company will be subrogated to the rights of the consignor and in such an eventuality, the consignor is not entitled to maintain the complaint before the Fora constituted under the Act inasmuch as he had not retained any right and further the Insurance Company cannot at all be construed as a consumer qua the opposite parties against whom the claim is made. Such being the position, the Supreme Court further said even the Insurance Company cannot maintain an action before the Fora constituted under the Act and if at all the Insurance Company, as a subrogee, is entitled to enforce its rights as a subrogee as against the opposite party, lorry transport operator only by filing a suit before a competent Civil Court.

IN the case on hand, as already indicated, the consignors/complainants got the insurance claim from the New INdia Assurance Company Ltd., and in such an eventuality the New INdia Assurance Company Ltd., as a subrogee, is entitled to claim the value of the vehicle paid by them to the consignors/complainants from the opposite parties, lorry transport operators by filing a suit before a competent Civil Court. The consignors/complainants, in such circumstances, cannot at all be stated to have retained any of their rights and, therefore, it is the complaint, as launched by them against the opposite parties, is not maintainable. The Forum below, it appears, did not at all sift or scan the factual matrix of the case in the light of the legal position emerging from the Apex Court of the country in the dictums laid down in the aforesaid decisions. As such, the order of the Forum below, cannot at all be stated to be sustained in law. The point is answered accordingly. In fine, the appeal is allowed, the order of the Forum below is set aside and the complaint itself is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.