NATIONAL INSURANCE CO. vs JAGDAMBA TRANSPORT CORPORATION

THIS complaint has been filed by National Insurance Company Limited and M/s. Harsahai Rajendra Kumar against Jagdamba Transport Corporation with the averments that M/s. Harsahai Rajendra Kumar was a grain merchant and commission agent carrying on business in New Mandi, Lalsot (Rajasthan). He had obtained an Inland Transit Policy No. 370108/ 2100145/91 from the National Insurance Company Ltd. The duration of the Policy was from 14.10.91 to 13.10.92. M/s. Harsahai Rajendra Kumar handed over 166 bags of ''Sarson'' to the Opposite Party for being carried to Remna Baleshwar (Orissa) to be delivered to M/s. Vijay Laxmi Oil Industry. The value of the said goods is said to be Rs. 1,87,663/-.Part of freight amount of Rs. 2,000/- had been paid to the consignor by the Opposite Party. However the goods was not delivered to the consignee. The consignor lodged the F.I.R. on 17.11.91. As the goods were insured, M/s. Harsahai Rajendra Kumar made a claim as against National Insurance Company Ltd. The Insurance Company accepting the claim of the consignor made payment of a sum of Rs. 1,87,663/- to the consignor by a cheque on 14.2.92. National Insurance Company Ltd. obtained a letter of subrogation from the consignor and also a power of attorney authorising the Insurance Company to recover the amount of damages sustained by the consignor on account of non-delivery of the goods. It is stated by the complainant that it was the duty of the Opposite Party to have delivered the goods to the consignee at his destination. Since the goods was not delivered, it has been prayed that an amount of Rs. 1,87,663/- be awarded to the National Insurance Company Limited alongwith interest at 18% p.a. and Rs. 2000/- as freight.

THE complaint is opposed on behalf of the Opposite Party who has pleaded that National Insurance Company Limited was not a ''consumer'' within the meaning assigned to the term by Section 2(d) of the Consumer Protection Act, 1986 and it could not file a complaint for the reason that by virtue of Section 12 of the Act, complaint could be filed by the consumer to whom the services were provided or agreed to be provided or any recognised consumer association or two or more consumers of the Central or the State Government. According to the Opposite Party the service was provided to M/s. Harsahai (sic.) to National Insurance Company Ltd. It was also been pleaded that Opposite Party had engaged a truck for the consignor. He got the consignor contacted with the owner of the truck and the driver and the Opposite Party was not responsible as a carrier for delivery of the goods to the consignor. The first question to be considered is whether a complaint can be filed by the National Insurance Company Ltd. (insurer) on the basis of subrogation letter and power of attorney executed by the consignor in its favour authorising the Insurance Company to recover damages or compensation from the carrier. Section 2(d) of the Consumer Protection Act, 1986 defines the terms consumer, inter alia, as meaning that a consumer means any person who hires or avail any service for consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. In the present case admittedly the services from the Opposite Party were hired and availed of by M/s. Harsahai Rajendra Kumar who was the consignor of the goods. The beneficiary of such services could at best be consignee and not the insurer. The mere fact that the subrogation letter and power of attorney was executed by the consignor in favour of National Insurance Company Limited will not make the Insurance Company a ''consumer'' according to the definition assigned to the term by Section 2(d) of the Act. This view finds support from the decision of the National Commission in M/s. Green Transport Company v. New India Assurance Company Ltd. reported in II (1992) CPJ 349 (NC) dated 20.5.92. In this case the National Commission held that only the actual person who has hired the service for consideration or any other person availing of the benefit of such service with his approval will be regarded as a consumer under me Act. The facts in M/s. Green Transport Company''s case were that the transaction of hiring of service was the contract of carriage of goods entered into by M/s. Seth Brothers with M/s. Green Transport Company (appellant) for the transportation of three drums containing oil from Bombay to Delhi. New India Assurance Company, which was complainant before the State Commission was neither the person who had hired the service nor it had availed of the service as beneficiary with the approval of M/s. Seth Brothers. In that case also the Insurance Company had obtained a subrogation letter as in the present case. Despite that it was held that the fact that the Insurance Company had acquired rights by subrogation or a transfer of the right of action as against the transporter or that it had been granted a special power of attorney would not in any way improve the position of the Insurance Company so far as proceedings under the Consumer Protection Act are concerned for the reason that the Insurance Company was not a ''consumer''.

In view of the above decision of National Commission, clearly National Insurance Company Limited is not competent to file this complaint before the State Commission under Consumer Protection Act, 1986. In this Complaint relief had been claimed only in favour of National Insurance Company Ltd. The complaint is, therefore, clearly not maintainable and it is hereby dismissed with cost to the Opposite Party which I assess as Rs. 1,000/-. Complaint dismissed with costs.