SINGH TRANSPORT SERVICE vs GAJANAND POHA UDYOG

-THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 19. 1. 2007, in Complaint No. 233 of 2006, by District Consumer Disputes Redressal Forum, Durg (hereinafter called the ''district Forum'' for short) whereby the complaint was allowed and the O. P. was directed to pay a sum of Rs. 24,536 with interest @ 6% p. a. from 15. 12. 2005 together with Rs. 5,000 towards compensation for mental suffering and Rs. 500 towards cost of proceedings.

BRIEF facts necessary for disposal of this appeal are that M/s. Gajanand Poha Udyog had obtained Marine Insurance Policy No. 190507/21/2005/00001 for the period from 1. 4. 2005 to 31. 3. 2006. During subsistence of the aforesaid policy, the policy holder had booked 90 bags of Poha duly packed in jute bags was handed over to the O. P. /transporter on 22. 6. 2005, for being delivered to Holi Singh Jaswant Singh, Kapoori Mohalla, Indore. The transporter had charged Rs. 4,600 towards transporting charges and a sum of Rs. 3,500 was paid in advance. The transporter undertook to deliver the aforesaid bags in good condition and to cover the material with tarpaulin sheets, etc. so that it is not destroyed in case of rain. As per averments in the complaint, the said Poha was destroyed due to rains as the transporter failed to cover the goods with tarpaulin sheets as assured. 39 bags of the material entrusted to the transporter were destroyed due to their negligence and thereby causing loss of Rs. 24,536. The consignee Holi Singh Jaswant Singh vide letter dated 29. 6. 2005 intimated the loss to the transporter but the transporter neither sent any reply nor paid the amount. The consignee also intimated the consignor/insured regarding aforesaid loss and the consignor/insured requested the insurer to make good the loss as the transporter was not making the payment. A Surveyor was appointed by the insurer and he also stated in his survey report that Poha was damaged due to rains. The consignor also agreed to execute a letter of subrogation and Power of Attorney in favour of the insurer. Consequently, Special Power of Attorney and letter of subrogation were handed over to the insurer. Thereafter, the insurer made payment of Rs. 24,536 and on the basis of the aforesaid letter of subrogation and Power of Attorney, the insurer had filed complaint before the District Forum. The complaint was resisted by the O. P. /transporter and it was averred in the written version that the complainant was not the consumer as he had not paid any amount to the transporter. Moreover, the complaint has been filed by the insurer under letter of subrogation and Power of Attorney. It was further averred that the insurer had insured the goods that were being transported. Hence, the loss due to rain was payable by the insurer and not by the transporter.

Relying on the decision of National Commission in Target Cargo Carriers and Anr. v. Aroma Organics Pvt. Ltd. and Anr. , II (2005) CPJ 30 (NC), the District Forum came to the conclusion that complainants are consumers within the meaning of the Consumer Protection Act, 1986 and complaint can be filed against 3rd party on the basis of letter of subrogation. Hence, the complaint was allowed.

FINAL arguments heard. Record perused. Learned Counsel for the appellant submitted that the District Forum has failed to properly appreciate the material on record while passing the impugned order. The insurer has filed the complaint on the basis of Letter of Subrogation and Special Power of Attorney from the complainant. The District Forum has failed to appreciate this fact while passing the impugned order. In the circumstances the order is liable to be dismissed. Learned Counsel for the appellant prayed that the appeal be allowed and impugned order be quashed. Learned Counsel for appellant also relied on the decision of this Commission (order dated 26. 4. 2007) in appeal No. 85/2007 between Singh Transport Services v. Gajanand Poha Udhyog, III (2007) CPJ 201.

LEARNED Counsel for respondents reiterated their stand taken before the District Forum and submitted that the impugned order is just and proper in the facts and circumstances of the case and there is no need for any interference. The appeal in hand relates to the complaint filed on the basis of letter of subrogation and Power of Attorney issued in favour of the insurer by the insurer regarding the amount received by the insured towards loss suffered by him under the policy. Earlier also this Commission has decided similar point in M/s. Singh Transport''s case relying on the decision in Simran Roadlines v. Oriental Insurance Company Ltd. and Anr. , III (2007) CPJ 128 (NC)=2007 (1) CPR 360 (NC) and M/s. M. R. Shah Transport v. New India Assurance Co. Ltd. and Anr. , III (2007) CPJ 152 (NC)=2007 (1) CPR 287 (NC ). It has been held in the aforesaid cases that the Insurance Company cannot file the complaint under Consumer Protection Act on the basis of subrogation and assignment and would not be entitled to file the consumer complaint even jointly with the insured. Hence, this appeal is allowed. The impugned order is set aside. The complaint shall stand dismissed. However, the insurer shall be at liberty to avail of such other legal remedy as may be available to it. Appeal allowed.