NITCO ROADWAYS LIMITED vs United India Insurance Co. Ltd.

THIS order will dispose of Appeal No. 499 of 2000 and Appeal No. 500 of 2000 as facts and the law points involved therein are the same.

TWO complaints jointly filed by the United India Insurance Co. Ltd. and M/s. Neeta Valves Private Ltd., Jalandhar against M/s. Nitco Roadways Limited were allowed by the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter called the "District Forum") vide orders dated 9.11.1999 passed separately, against which the opposite party M/s Nitco Roadways Limited has filed the present appeals. However, as stated above, the facts and the law points involved in both these cases are similar. In one of the complaints (Complaint No. 48-DF-97), the District Forum allowed the complaint in the following terms on 9.11.1999 : "For the negligence and deficiency in service on the part of the opposite parties discussed above, we accept this complaint with cost and direct the opposite parties to pay Rs. 69,506 along with interest at the rate of 18% from 22.6.1995, the day on which the payment was made to the complainant No. 2 by the complainant No. 1 upto its payment. The interest has been allowed to the complainant as compensation for mental tension and harassment caused to them. We further assess Rs. 2,000 as costs of this complaint. The opposite parties have been directed to comply with the directions of this Forum within one month of the receipt of this order. Copies of this order be sent to the parties through registered post, free of cost or in person under the rules. Record be consigned."

Similar order was passed in the other complaint by the District Forum excepting the amount. The facts giving rise to these appeals may be noticed: United India Insurance Co. Ltd. and Neeta Valves (P) Ltd., Jalandhar filed two complaints before the District Forum on 27.2.1997 against Nitco Roadways Ltd. The case of Neeta Valves (P) Ltd. was that they had booked two consignments of goods with the opposite party-Nitco Roadways Ltd., Jalandhar for being transported from Jalandhar to Madras to be delivered to M/s. Universal Hardware Mart in Madras. The total value of the two consignments was Rs. 99,084.10. Those goods were insured by the complainant Neeta Valves (P) Ltd. with United India Insurance Co. Ltd. The goods did not reach the destination. Neeta Valves (P) Ltd. lodged their claim with the Insurance Company and the claim was settled and a letter of subrogation by Neeta Valves (P) Ltd. was given in favour of the Insurance Company to the tune of Rs. 69,505.74 in one case and for Rs. 29.578.36 in the other case. Literally, two complaints were filed before the District Forum on behalf of the Insurance Company as Neeta Valves (P) Ltd. had been indemnified by the Insurance Company regarding the alleged loss. It was alleged by the Insurance Company that since the loss had occurred due to the fault of the carrier-Nitco Roadways Ltd. and the Insurance Company had indemnified the owner of the goods, i.e. the consignor, they were entitled to recover the said amount of Rs. 69,505.74 plus Rs. 29,578.36 along with interest @ 25% per annum w.e.f. 22.6.1995 and damages to the tune of Rs. 1,00,000 in each case. In reply, the opposite party, i.e. the carrier, took the objection that the complaint was not maintainable at the instance of the Insurance Company. It was further admitted that the goods had been booked through the opposite parties - Nitco Roadways Ltd. but the truck had met with an accident and there was no negligence on the part of the opposite party in transporting the goods. The District Forum vide order dated 23.12.1997, relying on the judgment of the Supreme Court reported as New India Assurance Co. Ltd. v. B.N. Sainani, III (1997) C.P.J. 1 (SC), held that the assignee, i.e. the Insurance Company, in the present case did not become a ''consumer'' under the Consumer Protection Act by virtue of the letter of subrogation from complainant No. 2 Neeta Valves (P) Ltd. and, therefore, had no right to file a complaint under the Consumer Protection Act. The remedy of the Insurance Company was only by way of a civil suit. The complaint was dismissed by the District Forum vide order dated 23.12.1997.

Against the aforesaid judgment of the District Forum dated 23.12.1997, the United India Insurance Co. Ltd. as well as Neeta Valves (P) Ltd. filed two separate appeals before this Commission (Appeal Nos. 143 and 144 of 1998), which were decided vide order dated 18.3.1999 and so far as the question of maintainability of the complaint was concerned, it was observed as under: "The question about maintainability of the complaint by the Insurance Company joining the consignor under subrogation letter had already been decided by the National Commission in Roadwings International v. Hindustan Copper Ltd. and Another, II (1998) CPJ 37(NC) as well as by this Commission in New India Assurance Company Limited and Another v. M/s. Kanpur Calcutta Road Carriers (Regd.), 1997(2) C.P.C. 503, wherein it was held that when joint complaint is filed in the circumstances as stated above, the same would be maintainable, hence the decision of the District Forum legally cannot be maintained."

The cases were remanded to the District forum for deciding the complaints on merits. The complaints were allowed by the District Forum as aforesaid. Hence the present appeals by the carriers Nitco Roadways Ltd.

BEFORE we deal with these appeals on merits, it may be observed that learned Counsel for the appellant cited a judgment of the Apex Court in Oberai Forwarding Agency v. New India Assurance Co. Ltd. and Another, I (2000) CPJ 7 (SC)=II (2000) SLT 86=2000 (1) CPC 304, which judgment was delivered on February 1,2000, wherein, according to the Counsel, it was held that the Insurance Company, in such circumstances of subrogation, could not be held to be a ''consumer'' under the Consumer Protection Act. On the other hand, learned Counsel for the Insurance Company cited a judgment of the Apex Court reported as U.P. State Road Transport Corporation v. State of U.P. and Another, VII (2004) SLT 349=I (2005) ACC 51 (SC)=AIR 2005 SC 446, to contend that if a particular point is already decided between the parties, then the parties cannot raise the same point again in any other proceedings or in the same proceedings on the principle of res judicata even though later on the view expressed may have been reversed by some Higher Court. It was observed by Their Lordships of the Supreme Court as under: "The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the Trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings."

IN view of the Apex Court''s judgment in U.P. State Transport Corporation case (supra), we have not gone into details of the Apex Court''s judgment in the Oberai Forwarding Agency case cited by learned Counsel for the appellant, since the matter between the parties regarding the question whether the INsurance Company in the present case was or was not a "consumer" under the Consumer Protection Act was settled by this Commission vide judgment between the same parties in Appeal Nos. 143 and 144 of 1997 decided on March 18,1999 when the case were remanded back to the District Forum for decision on merits after affording opportunity to the parties to lead evidence, we are of the view that the appellant cannot be allowed to agitate the same matter in these proceedings. We proceed to decide the case on merits. There is no dispute on the proposition of law that a claim cannot be sustained against the transporter without proving negligence (See I (1999) CPJ 342, Salco Extrusions (P) Ltd. v. Deepak Transport Agency (P) Ltd. The case of the carrier appellant before the District Forum was that the goods along with the truck had caught fire when the truck was parked on one side of the road and another truck from behind pushed the stationary truck carrying the goods and the truck along with the goods caught fire when it struck against an electric pole, may be due to short-circuiting or otherwise. The District Forum, however, held that though the goods were lost in fire, but it had not been explained as to how the truck caught fire in which the goods were lost. Learned Counsel for the appellants drew our attention to the pleadings, the affidavit of Shri S.K. Gupta, Manager of Nitco Roadways (P) Ltd. (Carrier) Ex. 01, copy of the F.I.R., Ex. O-5 and photographs Ex. O-2 to Ex. O-4 to contend that from the said evidence, which has gone un-rebutted, it is evident that there was no negligence on the part of the carrier when the stationary truck carrying the goods was hit by another truck from behind and after it struck against an electric pole, it caught fire along with the goods and goods were destroyed. In paragraph 4 of the preliminary objections raised in the affidavit dated 26.5.1999 of Shri S.K. Gupta, Manager, Nitco Roadways Ltd., Branch Office, Patel Chowk, Jalandhar, it has been stated as under: "That the goods are always booked at the risk of consignor and incorporated at the back of invoice as this fact was known to the complainant No. 2. Moreover, the loss of goods has not accrued on the fault of the Transport Co., the truck carrying the goods met with an accident at no fault of the truck driver, as the truck No. K.A. 02-9098 hit the stationary truck carrying the goods standing on the Kucha portion on extreme left side of the road and was reduced to ashes. The opposite party, i.e. Transport Company, also lodged the FIR against the Truck Driver of the offending Truck."

The F.I.R. (Ex. O-5), which was got recorded by the truck driver in question although is recorded in Tamil language, yet the following portion which has been written in English: "On 14.3.1998 at about 4 a.m. on Chittoor-Vellore road near Balaji Hatcheries, Chittoor the accused noted in Col. 7 of the F.I.R. being the driver of lorry KA-02-9098, drove the said lorry rashly and negligently while it was plying towards Madras side and hit one stationary lorry bearing No. KA-01-4956 from its behind, as a result of which the said lorry dashed against an electric pole and fell into a pit and burnt into ashes due to electric shock and the inmate of the lorry and Eswara Achary, had sustained burn injuries (not legible) (Perhaps it is, ''injuries were received'')."

The F.I.R. further shows that the driver, etc. were admitted to hospital. The photographs Exhibits O-2 to O-4 also show the truck of the appellant Company having been burnt and is in a pit. There is an electric pole also nearby.

LEARNED Counsel argued that from the above evidence, it is clear that the carrier i.e., the driver of the truck was not negligent in any manner. For some purpose the truck had been parked on one side of the road, may be for some rest to the driver and some other truck hit it from behind. No evidence was produced by the Insurance Company to show that the truck driver was in any way negligent. Shri S.K. Gupta or any other person was not called for cross-examination by the Insurance Company. The F.I.R., which was lodged immediately after the accident had occurred, would go to show that it was the very first version of the truck driver as to how the truck had caught fire. LEARNED Counsel for the Insurance Company could not bring to our notice any evidence to show negligence on the part of the truck driver. He also could not assail the evidence produced on behalf of the carrier, i.e. affidavit of Shri S.K. Gupta, the F.I.R. and the photographs to show that the same was not reliable or from the same conclusion could not be drawn that the truck driver was not negligent. The photographs are self-speaking. The truck has been burnt. The photographs do show that there is an electric pole nearby. The very first version recorded in the F. I. R. also goes to show that the truck was stationary and was hit by another truck from behind resulting in fire. The District Forum has overlooked all these aspects. For the foregoing reasons, we find that the carrier was not negligent while transporting the goods.

IN view of what has been observed above, we accept these appeals, set aside the orders of the District Forum dated 9.11.1999 and dismiss the complaints. However, there will be no order as to costs. The orders were reserved on August 4, 2005. Be communicated to the parties. Appeals allowed.