SINGH TRANSPORT SERVICES vs GAJANAND POHA UDHYOG

THIS appeal under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 19.1.2007 in Complaint No. 232/2006 by District Consumer Disputes Redressal Forum, Durg (hereinafter called "District Forum" for short), whereby the complaint was allowed and the opposite party was directed to pay to the complainant a sum of Rs. 58,171 with interest @ 6% from 15.12.2005 together with compensation of Rs. 5,000 towards mental suffering and Rs. 500 towards cost.

BRIEF facts necessary for disposal of this appeal are that the complainant had got an insurance policy No. 190507/21/2004/000005 for the period from 1.4.2004 to 21.3.2005 and during subsistence of the said policy Gajanand Poha Udyog had booked 100 bags of Poha for being delivered to Sumit Traders, Indore on 3.8.2004. The said Poha was properly packed in jute bags and was sent by truck No. MP-04-KP-6255 of the opposite party - transport service and Rs. 3,950 was paid towards consideration. As per averments of the complaint, due to negligence of the opposite party the Poha was destroyed due to rains and the Sumit Traders refused to accept the said consignment. It is further averred that the transporter ought to carry Poha carefully well covered with tarpaulin sheet, but they did not do so. Hence, 100 bags of Poha amounting to Rs. 58,100 was destroyed. As the amount was not paid by the opposite party, the complainant laid claim before the insurer for payment of an amount of Rs. 51,178. The insurer appointed the Loss Assessor, Surveyor Manoj Kumar Saxena and the said Surveyor said in his report that Poha was destroyed due to rains. Only 32 bags were accepted by Sumit Traders. The aforesaid amount of Rs. 51,178 was paid by the insurer. The complainant M/s. Gajanand Poha Udyog had issued a Letter of Subrogation and Special Power of Attorney in favour of the insurer. On basis of aforesaid Letter of Subrogation and Special Power of Attorney the insurer has filed the complaint. The complaint was resisted by the opposite party- transporter. It was averred in the written version that the opposite party had not received any amount for transportation, from the complainant. The responsibility of carrying the goods carefully was of the driver and owner of the vehicle. Whereas, the opposite party is only a commission agent who received commission from the truck owner and driver not from the complainant. Hence, the complainants are not consumer of the opposite party. It was further averred that the complainant adopted insurance cover under the Marine Policy and the driver had duly covered the goods with tarpaulin sheet and had reached the Sumit Traders with goods late at night but since labours were not available to unload the goods, the goods were not unloaded and the vehicle was parked in the godown of Sumit Traders. The goods were destroyed in the godown of the Sumit Traders on account of getting wet due to rains. The opposite party is not responsible in the circumstances of the case.

Learned District Forum came to the conclusion that the complainant is the consumer of the opposite party relying on the decision of Hon''ble National Commission in Target Cargo Carrier and Ors. v. Aroma Organic Pvt. Ltd. and Ors., II (2005) CPJ 30 (NC), the District Forum came to the conclusion that complaint can be filed against third parties on the basis of Letter of Subrogation. Hence, the complainants are consumers with regard to the complaint.

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 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 the respondent insurer candidly admitted that in view of the decision of Hon''ble National Commission in M/s. Simran Roadlines v. Oriental Insurance Company Ltd. & Anr., III (2007) CPJ 128 (NC)=2007 (1) CPR 360 (NC) and in M/s. M.R. Shah Transport v. New India Assurance Co. Ltd. & Anr., III (2007) CPJ 152 (NC)=2007 (1) CPR 287 (NC), the complainant-insurer has no cause as it has been held in the aforesaid cases that the Insurance Company cannot file complaint under Consumer Protection Act on the basis of Letter of Subrogation and assignment and would not be entitled to maintain consumer complaint even jointly with the insured. The aforesaid case laws are applicable to the present appeal on all fours. Hence, this appeal is allowed and impugned order is set aside. The complaint shall stand dismissed. However, the insurer shall be free to avail of such other legal remedy as may be available to them. Appeal allowed.