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Judgment
THE first complainant entrusted to the opposite party, a Transport Corporation, at Tiruvottiyur, a consignment consisting of 85 barrels of chemicals for safe carriage and delivery to the consignee M/s. K.J. Polymers Pvt. Ltd., Gurgaon (Haryana). Short delivery alone was effected by the opposite party Transport Corporation to the consignee at Gurgaon.
THE consignment had been insured by the 1st complainant with the 2nd complainant. THE Surveyor engaged by the 2nd complainant Insurance Company assessed the loss at Rs. 90,448/-. THE claim had been settled by the 2nd complainant Insurance Company by paying an amount of Rs. 90,448/- to the 1st complainant and then got subrogated to the rights of the 1st complainant. Both the complainants 1 and 2 instituted the complaint as against the opposite party-Transport Corporation for the recovery of the assessed loss quantified in a sum of Rs. 90,448/-.
The Forum below, after taking into consideration the materials placed on record, directed the opposite party to pay a sum of Rs. 90,448/- towards shortage and damage for the goods with interest at the rate of 12% per annum from the date of complaint till payment with cost of Rs. 500/- within two months from the date of the order failing which the complainant will be at liberty to invoke the provisions of Section 27 of the Consumer Protection Act, 1986 (for short, "the Act").
AGGRIEVED by the order as above, the present appeal has been resorted to by the opposite party. We heard the arguments of learned Counsel Mr. S. Natarajan appearing for the appellant/opposite party and learned Counsel Mr. Suriyamoorthy, appearing for the respondents/complainants. The question arising for consideration is as to whether the order of the Forum below is sustainable on the facts and in the circumstances of the case. When this matter came up for hearing before us today, our attention had been drawn by learned Counsel for either side, to the decision emerging from the Apex Court of this country reported in CI (2000) CPJ 7 (SC)=II (2000) SLT 86=2000 (I) CTC 556.
ONE vexed question that came up for consideration in that case 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 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 complainant. On the face of the judgment of the Supreme Court in Oberoi Forwarding Agency (supra), the award as made by the Forum below in the original action cannot at all be allowed to stand and such award deserves to be set aside and we accordingly do so. In final, the appeal is allowed, the order of the Forum below is set aside and the complaint itself is dismissed. It is, however, open to the aggrieved parties/complainants 1 and 2 in this action to agitate the matter before the competent Civil Forum in accordance with law. We shall, however, make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.