UNITED INDIA INSURANCE CO. LTD. vs RAJAN SIDANA

THIS appeal arises out of the order of the State Consumer Disputes Redressal Commission, Delhi, whereby the State Commission allowed the complaint. The facts in brief which lead the complainant to move the State Commission are as under.

THE complainant, Proprietor of M/s. Oriental Mail Speed Transport, is engaged in transportation of goods all over India. He had entered into an agreement with the Delhi Milk Scheme to carry skimmed milk powder (SMP) purchased by the D.M.S. all over the country to Delhi. The DMS placed an order to transport SMP from Rohtak to Delhi. As is found from the order of the State Commission, the complainant was not allowed to carry SMP from Rohtak by the Truck Operators Union, Rohtak. As a result, on the request of the complainant, the Truck Operators Union arranged two trucks for transportation to Delhi. Out of the two trucks, one truck reached Delhi and the other truck was taken by the driver to his village where it caught fire and all the milk powder weighing about 2,350/- kgs. got destroyed. In the result, the DMS deducted an amount of Rs. 1,25,255/- on account of the price of the goods from the bills of the complainant. Consequently, the complainant filed a complaint before the State Commission for recovery of Rs. 1,42,543/- for the price of the goods destroyed, for labour and transportation charges, interest at the rate of 20% from 13.2.1992 till the date of filing of the complaint before the State Commission, and costs of legal notice. Before the State Commission no one appeared for opposite parties 1, 2 and 3 who were proceeded against ex parte. Opposite party No. 4 in its written statement pleaded that they had received the instalment of the truck from the owner and consequently, they had no charge on it. The stand of the Insurance Company was that the truck was insured against the liability of the ''3rd party'', but the complainant did not fall within the purview of ''3rd party''. Therefore, they were not liable to pay any amount to them. Now, the question before the State Commission was whether the claimant was entitled to get the price of the goods destroyed by fire from the Insurance Company. Since the word ''3rd party'' has neither been defined in the Consumer Protection Act nor in the Motor Vehicles Act, the State Commission placing reliance on the decision of the M.P. High Court, in the case of Kishori v. Chairman, Tribal Service Cooperative Society Ltd., AIR 1988 MP 38, held that the complainant was a ''third party'' and entitled to the price of the goods destroyed by fire from Insurance Company. In the result, the State Commission fastened liability jointly on opposite party Nos. 1, 2, 3, 5 and 6 and directed them to reimburse the complainant the bill amount of Rs. 1,25,255/-, but disallowed the claims of the complainant with regard to expenses of Rs. 3,500/- incurred by him on account of labour and as the State Commission could not find any basis, therefore, or proof thereof. Against the claim of the complainant for grant of Rs. 970/- for transport of the goods from Rohtak to Delhi, the State Commission allowed of Rs. 500/-. As far as the claim of the complainant with regard to interest at 20% p.a., the State Commission allowed the same at 15% from 13.2.1992 till the date of payment. The State Commission allowed the complaint with costs of Rs. 1,500/-. Feeling aggrieved by the order of the State Commission, the Insurance Company has come in appeal before us.

WE have gone through the papers produced before us and K. Venkata Rao v. Commercial Goods Transport Firm, AIR 1982 AP 203; Anakapalli Appalaraju and ., and Arulanandam Vethakannu Nadar and ., by the respondent as also the arguments advanced by the Counsel for the appellant. In the light of the aforesaid cases and also in the light of the passage appearing in Halsbury''s Laws of England, 4th Ed., Vol. 5, para 452, which reads as under : "Where goods have been delivered to a carrier, and they are lost or injured, the owner of the goods is the proper person to sue for damages. A consignor who consigns only as agent, and has no property in the goods, has no right of action unless it is given to him by the terms of the contract. Nevertheless where the goods are at the consignor''s risk until delivery to the consignee, the consignor may have a special property in the goods, as bailee, sufficient to entitle him to sue."

ALSO the following passage appear in G. W. Paton''s Bailment in the Common Law at page 239 which reads as under : "Normally the owner of the goods is the person who makes the contract with the carrier and in such a case he alone can sue in contract or in tort, subject to the following : (a) So far as the carrier is concerned, he must treat the person in possession as the owner, at least in the absence of a claim by the real owner. The carrier is bound to receive the goods for carriage and can make no inquiry as to title. Jus Tertii cannot be raised by the carrier of his own volition for it is the general rule of bailment that the bailee is estopped from denying the bailor''s title. ..." (b) If the goods are consigned by a bailee, he alone can sue in contract, though the true owner may also sue in tort. (c) xxx xxx xxx (d) The consignor may make a special contract with the carrier which will retain the consignor''s right of action, although property has passed to the bailee. Apart from such a case, if the goods are lost, the carrier will pay the consignor at his peril."

We are of the opinion that it cannot be held that the consignor or the complainant had no right of action. He had impleaded all the necessary parties including the Truck Operators'' Union, M/s. Orient Mail Speed Transport Service, i.e. the transporter, the financier and the truck driver along with the Insurance Company and the State Commission, after looking into all the pros and cons, rendered its decision holding that the opposite parties were jointly and severally liable except opposite party No. 4, who is the financier. However, the State Commission awarded interest at the rate of 15% which is on the higher side, which should be reduced. Accordingly, we reduce the rate of interest from 15% to 11%. The rest of the order of the State Commission is sustained and the appeal is disposed of in the above terms.