SHANTI ROADWAYS, BAREILLY vs NEW INDIA ASSURANCE COMPANY

ALL these appeals arise out of common judgment dated 26.9.1999 passed by District Forum, Bareilly in Complaint Case Nos. 99, 100, 101, 187 & 188.

ALL these appeals are between the same parties and same question of facts arise in all these cases. They are taken together and disposed of by a common judgment. The facts of Complaint No. 99/1990 are.

That one consignment of SDMDC Phosphoric acid weighing 30 quintals consisting of 60 carbouys of 50 kg. each valued Rs.47,112/- was obtained from M/s. Chempps, Bombay by complainant No. 2. The said consignment was given for transportation on 15.6.1988 for carriage from Bombay to the factory of complainant No. 2 at Bithora (Bareilly). Due to negligence and carelessness of opposite party No. 2 M/s. Shanti Roadways, Bareilly at the time of delivery on 20.6.1988 at the factory premises 20 carbouys were cracked and damaged and the contents thereof weighing 900 kgs. leaked out for which a short certificate was issued by opposite party. This shortage was valued at Rs. 14,134/-. This consignment was insured with complainant No. 1.

CLAIM notice was sent to opposite party but amount has not been paid so far. It is further alleged that complainant No. 2 also executed power of attorney in favour of complainant No. 1 and opposite party. He is entitled to receive compensation from opposite party. Facts of Complaint No. 100 are that: Consignment of 60 Carbouys (each containing 100 kgs.) of rubber chemicals SDMDC was obtained by the complainant No. 2 from M/s. Pukhraj Industrial Corporation, Vaoi (Maharashtra) and was entrusted to the opposite party for carriage to the factory of the complainant No. 2 at Bareilly vide G.R. No. 5417 dated 15.6.1988. Due to negligence and carelessness of opposite party the carbouys was damaged and entire contents thereof viz. 100 kgs. leaked out and the same was short delivered. The shortage is valued at Rs. 1,505/- (which leaked out and delivered short). The consignment was insured with complainant No. 1 and the transit risk was also covered. Amount of Rs. 1,505/- was paid by complainant No. 1 to complainant No. 2. It has further alleged that a sum of Rs. 257/- was spent on survey and opposite party is also liable to pay the same. Claim amount was to be paid to opposite party No. 2 but the same has not been paid. A letter of subrogation and power of attorney in favour of complainant No. 1 was also executed and as such he is entitled to receive the compensation. Total amount of Rs. 2,392/- has been claimed.

THE facts of Complaint No. 101 /1990 are as under: That one consignment of 55 drums SC-2000 latex was booked. Complainant No. 2 on 27.6.1988 entrusted it for being delivered from Bareilly to Madras. Complainant No. 2 had insured this consignment for transit risk from complainant No. 1. On 15.7.1988 when the consignment was delivered four drums were found in damaged condition and the contents 90 kilograms of SC- 2000 latex in the drums were short delivered. Short claim certificate was issued. A sum of Rs. 2,000/- was paid on account of claiming of damages by Insurance Company complainant No. 2 requested for payment of Rs. 2950/- as damages alongwith 25% per annum interest but when the opposite party/appellant did not pay the amount of claim then the case was filed, The facts of Case No. 187/1990 are that a consignment of 45 drums of latex was delivered to opposite party on 29.7.1989 for being delivered from Bareilly to Madras. At destination 9 drums were found damaged and latex had leaked out of them. The shortage was of 314.50 kgs. worth Rs. 7,782/-. Surveyor assessed damages of Rs. 7,300/- to whom Rs. 200/- was paid. The amount of damages has been paid by Insurance Company, complainant No. 1 to complainant No. 2 amounting to Rs. 7,300/-. The opposite party on demand refused to pay the claimed damages. In the Complainant Case No. 188/1990 a consignment of SDMDC Industrial Chemical weighing 7150 qtls. consisting of 143 carbouys of 50 kgs. each worth Rs. 1,17,395.84 was booked on 10.4.1989 which was to be transported from Bombay to Bareilly. Vide goods Receipt No. 5011, complainant No. 2 also got it insured for transit risk from complainant No. 1. When the consignment was delivered at Bareilly factory it was found that two carbouys were cracked, damaged and empty and the contents thereof weighing 100 kgs. leaked out and the same was short delivered. Short delivery certificate was also given to complainant No. 2. A sum of Rs. 1,642/- was claimed as damages which was paid by complainant No. 1. When complainant No. 2 claimed the damages from the opposite party it did not pay the amount and then the claim petition was filed.

LEARNED District Forum, after considering the evidence on record, decreed the case of Insurance Company against the appellant. Aggrieved from this order the appellant M/s. Shanti Roadways, Bareilly has come in appeal and challenged the correctness of the order passed by District Forum, Bareilly.

WE have heard learned Counsel for the parties. Contention of learned Counsel for appellant is that District Forum, Bareilly has no jurisdiction to entertain and try this matter.

According to the learned Counsel the Calcutta District Forum has jurisdiction to try this case because in the agreement letter it has been clearly mentioned that if any dispute arises in respect of matter in question, the same shall be maintainable at Calcutta. For this purpose, reliance has been placed by the learned Counsel for appellant on term No. 16 of the document by which consignment was booked. According to this term, the jurisdiction will be with the Calcutta Court, if any dispute arises about this contract. The goods receipt has been issued by the appellant, and it has not been signed in token of its having agreed to the terms mentioned in the goods receipt. Therefore, it cannot be said that there was a contract between parties for trial of the matter, in case of any dispute having any reason between the parties for trial at Calcutta.

THUS, jurisdiction of Bareilly District Forum cannot be ousted by this goods receipt. There is one more aspect in this controversy. The goods were not booked either from Calcutta or delivered at Calcutta. The entire transaction took place outside the jurisdiction of Calcutta Court. Therefore, Calcutta Court also cannot have jurisdiction in case of any dispute between the parties. The legal position is that if a part of course of action arises at two places then the parties can agree that suit shall be filed only at one of such places. In the present case, the facts on record will clearly go to show that no part of cause of action arose within Calcutta. THUS, we come to conclusion that Bareilly District Forum has jurisdiction to try the case and not the Calcutta District Forum. The next question to be decided is whether the Insurance Company can file claim petition on behalf of complainant. Objection has been raised by the appellant that no case could have been brought by the Insurance Company alone without pleading the consumer as complainant.

ACCORDING to the learned Counsel for Insurance Company the complainant has also joined in the complaint and has also come forward to claim the amount. It has been further argued by the learned Counsel for Insurance .Company that letter of subrogation has been executed by the consumer in favour of Insurance Company, therefore, it is entitled to file the complaint. This matter came up for consideration before the Gujarat State Commission in the case of United India Insurance Company v. Mehta Road Lines, I (1993) CPJ 172, In this case, it was held that complainant by the subrogatee (Insurance Company) cannot be entertained since the Insurance Company is not a subrogatee. But if this subrogatee files the complaint alongwith the complaint then it is maintainable because Insurance Company is not a consumer in the present controversy. It is, therefore, held that Insurance Company alone cannot file the complaint without joining the consumer.

NEXT argument of the learned Counsel for the appellant is that in all the complaint cases consumer, Synthetic & Chemicals Ltd. has not signed the complaint, hence, the complaint cannot be deemed to have been filed on its behalf. We have summoned the original files of the complaint cases from District Forum and after checking them we have found that none of the complaints have been signed on behalf of consumer-Synthetic & Chemicals. Therefore, all these complaints cannot be said to have been filed on behalf of the consumer, merely mentioning the names of consumer i.e. Synthetic and Chemicals Ltd. cannot mean that it has also joined in the claim. The complaints should have actually been signed by the complainant. Therefore, the complaints were not maintainable in the present form in which they were filed. The case cited above of United Insurance Company v. Mehta Road Lines, (supra) also deals with this controversy. In the case of M/s. Green Transport Company v. New India Assurance Company, II (1992) CPJ 349 (NC), It was also held that the actual person who has hired the service for consideration or any other person availing of benefit of such service with his approval can be regarded as a consumer under this Act. This also clears the position that the Insurance Company is not a consumer.

IN the case of United INsurance Company, (supra), it has also been held that even if INsurance Company had acquired rights of subrogator or right of action against the transporters, or obtained special power of attorney, even then it cannot acquire the statics of a consumer, and is not entitled to file complaint in its individual capacity. This also clears the position that the INsurance Company is not a consumer, hence, not entitled to bring present claim petition on its own. Therefore, all the complaints were incompetent and could not have been decreed by the learned District Forum. In view of the above findings, it is not necessary for us to deal with the damages awarded by District Forum.

All the Appeal Nos. 340/1990, 341 / 1990, 342/1990, 343/1990 and 344/1990 are allowed. The, orders and judgments of learned District Forum are set aside. The Complaint Nos. 99/1990, 100/1990, 101/1990, 187/1990 and 188/ 1990 and dismissed.

THE party shall bear their own cost of this litigation. Let the copy of this order be made available to the parties as per rule. Appeals allowed.