SUNDARAM TEXTILES LTD vs SAVANI ROADLINES

THE 1st complainant M/s. Sundaram Textiles Ltd., entrusted to the opposite party M/s. Savani Road lines 125 cartons of 62s Polyster cotton yarn on 3.1.1996 at Nanguneri, Tamil Nadu for safe carriage and delivery at Itchalakaranji. According to the complainant the concerned bunch was not delivered at the godown of the 1st complainant at Itchalakaranji as instructed. THE opposite party were reminded again about the non-delivery but there was no response. Finally the complainant wrote to the opposite party a letter dated 3.8.1996 requesting them to furnish a non-delivery certificate. This the opposite party complied with on 6.9.1996. Alongwith their letter of non-delivery certificate the 1st complainant had also lodged a complaint with the opposite party and reiterated the same on 17.10.1996 also so as to comply with Section 10 of the Carriers Act. Subsequently the 1st complainant vide their letters dated 3.8.1996, and 17.10.1996 had demanded for the value of the consignment Rs. 9,30,188/-. To this there was no response.

THE said consignment had been insured with the 2nd complainant M/s. United India Insurance Co. Ltd. THE 2nd complainant Insurance Company paid the said sum of Rs. 9,30,188/- to the 1st complainant and got subrogated to the rights and titles of the 1st complainant who in turn agreed to initiate appropriate proceedings against the carriers to reimburse the amount that they had collected. A Power of Attorney was also given to the 2nd complainant. Thus on account of the negligence on the part of the opposite party carriers the complainants have suffered a loss of Rs. 9,30,188/- being the value of the goods. On these allegations the complaint has been filed for an award of the said sum of Rs. 9,30,188/- and interest thereon @ 12% p.a. besides a sum of Rs. 5,000/- as damages in favour of the 2nd complainant. The opposite party in their written version contend that the loss if any suffered by the complainant had been settled by the 2nd complainant and therefore the cause of action does not survive and the 1st complainant ceased to be a consumer to invoke the provisions of the Consumer Protection Act. The 2nd complainant having no privity contract with the opposite party it has no locus-standi to maintain the complaint. As such the complaint is not maintainable. It is further contended that the consignment was entrusted by the opposite party on 3.1.1996 to the Sub-contractor Khaja Roadlines for transport at Nanguneri to Itchalakaranji. This was to the knowledge of the 1st complainant. The opposite party received the message of non-delivery from the 1st complainant after a lapse of 7 months. Immediately the Divisional Manager of the 1st opposite party sprung into action and lodged a complaint with the Police at Tirunelveli. The matter is under investigation by the police. The 1st complainant prevailed upon the opposite party to issue a non-delivery certificate. The 2nd complainant cannot maintain the complaint under the principle of subrogation. The 1st complainant having had the relief is estopped from pleading to the contrary and pleading on behalf of the 2nd complainant. This Commission has no jurisdiction to entertain the complaint. On these grounds, the opposite party has prayed for dismissal of the complaint.

The point that arises for consideration is whether there was any deficiency in service on the part of the opposite party and if so what relief can be awarded to the 2nd complainant.

POINT : As regards the question of jurisdiction, it is not in dispute that the consignment was sent from Nanguneri, Tamil Nadu and hence there is no merit in the contention that this Commission has no jurisdiction. It is not in dispute that the 1st complainant has sent the consignment through the opposite party to be delivered at Itchalakaranji but the consignment had not been delivered. It is also not in dispute that the opposite party had given a non-delivery certificate on 6.9.1996. The consignment had been insured, and the Insurance Company had indemnified the 1st complainant by paying the value of the consignment namely Rs. 9,30,188/- and it got itself subrogated to the rights of the 1st complainant against the opposite parties. The complaint has been filed jointly by the consignor and the Insurance Company. The only reason given by the opposite party for non-delivery of the consignment is that it had delivered the consignment to a Sub-contractor Carrier and it was surprised to get the message from the 1st complainant after 7 months stating that the goods had not been delivered. The fact being that the goods had not been delivered it is for the opposite party to explain the reason therefor but excepting saying that the consignment had been entrusted with the sub-contractor no other reason has been given. Clearly the conduct of the opposite party amounts to deficiency in service on their part and therefore, they are liable to make good the loss of the 1st complainant on account of the non-delivery of the goods. But the 2nd complainant Insurance Company had paid that amount to the 1st complainant and then it had got subrogated to the rights of the 1st complainant. Under these circumstances the complaint has been filed for an award in favour of the 2nd complainant for the amounts stated in the complaint namely Rs. 9,30,188/- with interest thereon @ 12% p.a. from the date of entrustment of the goods to the opposite party and further a sum of Rs. 5,000/- as damages. As regards the plea of the opposite party that since the 2nd complainant had paid the value of the goods to the 1st complainant, neither the 1st complainant nor the 2nd complainant can maintain the complaint, we find no merit in this contention since under the principles of subrogation the Insurance Company is entitled to reimburse the amount paid by them. As regards the contention that there was no privity of contract between the 2nd complainant and the opposite party, in a similar case in Transport Corporation of India Ltd. v. The Davangera Cotton Mills Ltd. & Ors., 1994 (3) CPR 381, the National Commission has said as follows : "The Insurance Company is not the sole complainant in the complaint petition filed before the District Forum. The consignment was entrusted by the 1st complainant for being transported and delivered to the 3rd respondent at Sivan (Bihar), lost in transit. Therefore, as far as the 1st complainant and the 3rd complainant are concerned they are definitely consumers qua the Transport Company. The Transport Company is liable to indemnify either of them for the loss of the goods. Of course the claim of the consignor has been settled by the Insurance Company and the consignor has issued a letter of subrogation but that will not affect the rights of the 1st complainant and the 3rd complainant from claiming value of the goods from the Transport Company. It is an arrangement inter se between the complainants to request the Forum that to whom the amount should be paid. In our opinion, the Transport Company cannot question the request of the complainants Nos. 1 and 3 where all the interested parties have joined in the complaint. It cannot be said that it is a champertious litigation. If the complaint had been filed by the Insurance Company alone on the basis of the letter of subrogation only then Transport Company was entitled to say that the Insurance Company is not consumer qua them."

In view of the above observation of the National Commission, we find no merit in the contention of the opposite party that Insurance Company is not entitled to maintain the complaint and recover the amount. Thus we find that the opposite party are liable to make good the amount paid by the Insurance Company to the 1st complainant. It is not in dispute that the value of the goods is Rs. 9,30,188/- and that amount had been paid by the Insurance Company to the 1st complainant. As regards the interest claimed, the 2nd complainant has paid the amount to the 1st complainant on 23.10.1996 as seen from the Disbursement Voucher dated 23.10.1996 filed by the complainant. Therefore we hold that the complainant should be entitled to interest on Rs. 9,30,188/- @ 12 p.a. from 23.10.1996. As regards the damages of Rs. 5,000/- claimed, it is not stated what is the damage sustained by the Insurance Company. Therefore no amount can be granted as damages.

IN the result, we direct the opposite party to pay a sum of Rs. 9,30,188/- to the 2nd complainant with interest @ 12% p.a. from 23.10.1996 till date of payment. The opposite party is also directed to pay a sum of Rs. 1,000/- as costs of this proceeding to the 2nd complainant. We further direct the opposite party to pay the said amounts within 3 months from today. Complaint disposed of.