Parrys Confectionery Ltd. vs BHANDARI INTERSTATE CARRIERS

THIS appeal is directed against the order dated 24th day of May, 1999 in O.P. 359/97 on the file of the District Consumer Disputes Redressal Forum, Chennai (North).

THE appellants are the complainants while the respondent is the opposite party. The first complainant is M/s. Parrys Confectionery Ltd., Chennai represented by subrogee and power agents M/s. United India Insurance Company Ltd.

The second complainant is M/s. United India Insurance Company Ltd., Divisional Office-I, Chennai-600 001.

THE opposite party is one M/s. Bhandari Interstate Carriers, located at 182, Poonamallee High Road, Kilpauk, Chennai-600 010. The first complainant, it is said, entrusted with the opposite party at Nellikuppam a consignment consisting of 440 cartons of sweets and toffees on 29.9.1996 for being transported and delivered to M/s. Arora and Wadhwa Associates, New Delhi. The first complainant insured the said consignment with the second complainant Insurance Company.

THE opposite party, it is said, deli-vered the consignment at the destination to the consignees in a damaged condition on 5.10.1996. THE value of the consignment delivered in a damaged condition is to the tune of Rs. 49,297/-. The second complainant Insurance Company, it is said, settled the claim of the first complainant by paying a sum of Rs. 49,297/-. The first complainant executed a letter of subrogation and special power of attorney in favour of the second complainant. The second complainant subrogated to all the rights of the first complainant to recover the said sum from the opposite party.

ALLEGING the factors as above, the second complainant Insurance Company knocked at the doors of the Forum below joining the first complainant as formal party by instituting a complaint for the recovery of the sum of Rs. 49,297/- from the opposite party. The opposite party stoutly opposed the complaint by taking several contentions and one among them was that there is no assignment of the policy of insurance and hence the subrogation letter cannot be admitted as evidence as against the opposite party.

THE Forum below after taking into consideration the materials placed on record ultimately dismissed the complaint without costs. Aggrieved by the order as above, the present action has been resorted to by the appellants/complainants by engaging a Counsel of their choice namely, learned Counsel Mr. S. Suriamoorti.

Service has been effected on the respondent/opposite party and he did not choose to enter appearance through a Counsel of his choice and as a matter of fact, he virtually remained absent.

WHEN this matter came up for hearing today before us, learned Counsel Mr. S. Suriamoorti appearing for the appellants drew our attention to the decision emerging from the Apex Court of this country reported in Oberai Forwarding Agency v. New India Assurance Co. Ltd. & Anr., I (2000) CPJ 7 (SC)=II (2000) SLT 86=2000 (I) CTC 556. One vexed question that came up for consideration in the case before the Supreme Court was as to whether the Insurance Company which has been assigned the rights of a consignor in respect of lost consignment is entitled to maintain a complaint under the Consumer Protection Act, 1986 (for short, "the Act"). The Supreme Court, on an elaborate consideration of the issue involved, ultimately came to the conclusion that the assignment did not make the Insurance Company a "beneficiary" of service rendered by the carrier and consequently the Insurance Company is not a consumer. The Supreme Court further stated that the consignor not having retained any right, is also not entitled to maintain the complaint as a co-complainant. The Supreme Court rendered the judgment in the aforesaid case on 1.2.2000.

NOT only the present original action out of which the present appeal arose but also the present appeal had been instituted and filed before the proper Forum long before the delivery of the judgment by the Supreme Court in Oberai Forwarding Agency (supra). The decision of the Supreme Court in Oberai Forwarding Agency (supra) is applicable in all fours to the factual matrix of the action before us. On the face of such a decision of the Supreme Court in Oberai Forwarding Agency (supra), neither the Insurance Company can be construed as a beneficiary-consumer and consequently maintain an action before the Consumer FORA constituted under the Act, nor the insured figuring as a co-complainant can maintain a consumer action inasmuch as the 1st complainant having assigned all its rights in favour of the Insurance Company. No doubt true it is that the complaint had been dismissed by the Forum below, but the reason for the dismissal of the complaint is altogether different. Here, we are not considering the tenability or otherwise of the reason for the dismissal of the complaint. We are of the view that the complaint as instituted by the complainants is not maintainable on the face of the decision of the Supreme Court in Oberai Forwarding Agency (supra). Applying the principle as evolved by the Supreme Court in the abovesaid decision to the factual matrix of this case, we are inclined to dismiss the appeal and we accordingly do so.

IN fine, the appeal is dismissed. It is, however, open to the aggrieved complainants to knock at the doors of the competent Civil Forum for appropriate reliefs if they are so advised. We, however, make no order as to costs on the facts and in the circumstances of the cases. Appeal dismissed.