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Judgment
COMPLAINANT No. 2, Nirma Detergents booked consignment of 260 bags of Nirma Washing Powder each weighting 50 kgs. with the opponent Asha Golden Transport Company for delivery to Rajendra Medicos at Samana in Punjab State. The consignment was loaded in truck bearing registration No. PUD 9715 at complainant No. 2''s factory at Chhatral. The consignment was not delivered to Rajendra Medicos at Samana. COMPLAINANT No. 2 therefore served a statutory notice dated April 13, 1989 to the opponent by Registered Post A.D. There was mistake in the notice which was corrected by another notice dated May 8, 1991 sent to the opponent by Registered Post A.D. Thereafter the opponent issued certificate of non-delivery on April 23, 1991. In this certificate it was stated to the effect the 260 bags of Nirma detergent powder which was loaded in the truck a Chhatral was taken away by the driver of the truck alongwith the truck, that the driver and truck were not traced and that the goods were not delivered.
THE said consignment of 260 bags of Nirma Washing Powder was insured with complainant No. 1 United India Insurance Company Ltd. under marine insurance policy which was valid for the period from June 29, 1988 to June 28, 1989. In view of the non-delivery of the goods complainant No. 2 lodged claim for Rs. 97,110/- with complainant No. 1. Complainant No. 2 alleged that the value of the goods which was not delivered was 97,110/- and, therefore, it was entitled to claim this amount under the insurance policy. Complainant No. 1 verified the claim submitted by complainant No. 2 and after investigation it was satisfied that the claim made by complainant No. 2 was genuine. Complainant No. 1, therefore, paid sum of Rs. 97,110/- to complainant No. 2 by cheque dated August 23,1991. Complainant No. 2 in consideration of the claim amount paid by complainant No. 1, executed a special power of attorney and letter of subrogation in favour of complainant No. 1 assigning, transferring and subrogating all rights in favour of complainant No. 1 and authorising complainant No. 1 to recover the said amount of Rs. 97,110/- from the opponent. The opponent did not make payment of Rs. 97,110/- being the value of the goods not delivered inspite of the statutory notice as stated above, the complainants have, therefore, filed this complaint for recovery of Rs. 97,110/- and interest of Rs. 4,369.95 from the opponent. Thus, the total claim made against the opponent is for Rs. 1,01,479.95.
This complaint is resisted by the opponent on the following grounds viz. (i) the complaint is barred by limitation. (ii) insurance policy was taken out by Kalupur Commercial Co-op. Bank Limited and, therefore, Kalupur Commercial Co-operative Bank alone has the right to recover money from the opponent. In any case, Kalupur Commercial Co-op. Bank is a necessary party. (iii) Complainant No. 2 had no right to recover any money from the opponent as it had not paid the freight/ transport charges to the opponent. (iv) Since Kalupur Commercial Co-op. Bank had not executed power of attorney or letter of subrogation in favour of complainant No. 1, the complaint was not maintainable by the complainants; and (v) there was no deficiency of service on the part of the opponent in-as-much as the driver of the truck had stolen the truck alongwith the goods.
The above were the only grounds which were pressed at the time of hearing of the complaint and, therefore, we do not consider it necessary to refer to or set out other grounds which are urged in the affidavit-in-reply filed on behalf of the opponent.
THE first ground which is urged on be half of the opponent is that the complaint is barred by limitation. It is urged that the complaint having been filed three years after the incident, it is barred by limitation. THE consignment of 260 bags was booked on December 27, 1988 and it was to be delivered to Rajendra Medicos at Samana in Punjab. THEre is no evidence to show as to when the goods were expected to be delivered at Samana. THEre is also no evidence as to when the alleged theft was committed by the driver. It is not disputed that under Limitation Act period prescribed is three years for taking legal action. Now, even if we assume that this period of limitation of three years would commence from the date of booking of the goods i.e. December 27, 1988, this complaint could not be said be barred by limitation. THE complaint is filed on December 23, 1991 within three years from the date of booking of the goods. THErefore, there is no substance in the contention that the period of three years having expired, this complaint is barred by limitation. It was next urged that under Section 24-A of the Consumer Protection Act, 1986 the complaint was required to be filed within 2 years from the date on which the cause of action had arisen and since the complaint is filed more than 2 years from the date on which the cause of action had arisen, it is barred by limitation. THE aforesaid Section 24-A was inserted by amendment of the said Act which came into force on June 18, 1993. This amended provisions can have only prospective effect. In the instant case, the complaint was filed on December 23, 1991. THErefore, there cannot be any question of the complaint being barred by limitation under Section 24-A of the said Act. It was next urged that Kalupur Commercial Co-op. Bank alone had right or authority to file this complaint or in any case the said Bank was a necessary party to the complaint. This argument is based only on one document viz. disbursement (claim) voucher issued by the complainant No. 1 Insurance Company for payment of Rs. 97,110/- to complainant No. 2. This voucher is drawn on Kalupur Commercial Co-Op. Bank and it is directed to pay Rs. 97,110/- to the account of M/s Nirma Detergents, complainant No. 2 herein. This voucher which came into existence only after the claim made by complainant No. 2 was accepted by the complainant No. 1 does not show that it was Kalupur Commercial Co-op. Bank which was the owner of the goods in question and that it had paid the premium for the insurance of the goods as sought to be urged on behalf of the opponent. It is only after complainant No. 1 accepted the claim made by complainant No. 2 that this voucher was issued to Kalupur Commercial Co-op. Bank for payment of Rs. 97,110/- to complainant No. 2 and it has nothing to do with the ownership of the goods or payment of premium. Therefore, the argument which is advanced on behalf of the opponent is, to say the least, baseless. The consignor of goods was complaint No. 2 and it was complainant No. 2 who had issued the goods with complainant No. 1. Kalupur-Commercial Co-op. Bank had nothing whatsoever to do with the goods and, therefore, it could not have filed this complaint nor was it necessary for the complainants to join this Bank as party to this complaint. Kalupur Commercial Co-op. Bank could not have executed power of attorney or letter of subrogation in favour of complainant No. 1.
WE are unable to see any force in the opponent''s argument that because freight/ transport charges were not paid by complainant No. 2, it had no right to file this complaint. The goods were despatched by complainant No. 2 and it was complainant No. 2 who had insured the goods with complainant No. 1. In our opinion, therefore, irrespective of the fact whether the freight was paid by complainant No. 2, this complaint by complainant No. 2 is maintainable. Incidentally we may mention that in the affidavit-in-reply it is contended that since the goods were booked at owner''s risk, opponent is not liable to pay any compensation to the complainants for non-delivery of goods. This contention was not pressed at the time of arguments of the complaint, obviously because there is no substance in it. Mere fact that goods were booked at owner''s risk does not absolve the opponent from its obligation to deliver goods to the consignee and, therefore, the complainants are entitled to recover from the opponent compensation for loss suffered as a result of non-delivery of the goods. It was lastly urged that there was no deficiency of service on the part of the opponent in-as-much as driver of the truck had committed theft of the truck alongwith the goods. The fact that the driver had committed theft of the truck alongwith the goods has not been established by evidence on record. Mere statement that the complaint was lodged with the police is not sufficient to establish this fact. But apart from that, the opponent would be liable for the action of its employees and, therefore, even if theft is committed by its driver, it would be liable to make good the loss on account of non-delivery of the goods. It is not disputed that the goods booked by complainant No. 2 were not delivered to the consignee. This is evident also from the certificate of non-delivery issued by the opponent. It is sought to be urged mat since complainant No. 1 had made payment of Rs. 97,110/- to complainant No. 2 under the insurance policy, complainant No. 2 had no reason or justification to file this complaint for recovery of the said amount Complainant No. 1 Insurance Company also could not have filed this complaint on the basis of the letter of subrogation. Therefore, according to the opponent this complaint was not maintainable. It may be mentioned here that this ground was not seriously pressed before us at the time of hearing of this complaint. But apart from that, in view of our decision in Madhu Refoils & Chemicals Ltd. and Anr. v. Taran Tanker Service in Complaint No. 503 of 1992 disposed of on August 12, 1994, we hold that this complaint is maintainable.
IT is not disputed that complainant No. 2 suffered loss of Rs. 97,110/- as a result of non-delivery of aforesaid goods. Complainant No. 1 has paid this amount to complainant No. 2. Complainants are, therefore entitled to recover the said amount from the opponent.
IN the result, we allow this complaint and direct the opponent to pay to complainant No. 1 INsurance Company a sum of Rs. 97,110/- together with interest @ 18% p.a. from September 1, 1991 till the payment is made and cost which is quantified at Rs. 2,000/- for each of the complainants within 4 weeks from the date of receipt of this order. We would have passed the order for payment of the aforesaid amount of Rs. 97,110/- jointly in favour of both the complainants but since complainant No. 2 has already received payment of the said amount from complainant No. 1 insurance company, we have passed order only in favour of complainant No. 1 insurance company. However, as stated above, each of the complainants shall be paid cost of Rs, 2,000/- by the opponent within four weeks from the date of receipt of this order. Complaint allowed with costs.