DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

========

1.       State Bank of India, Regional Stationary Department, Plot No.1-2, “B” Block, City Centre, Sector 5, Panchkula, through its Senior Divisional Manager, duly constituted attorney of “The New India Assurance Company Limited.”

                                                                             …. Complainant No.1

2.       The New India Assurance Company Limited, SCO No.37-38, Sector 17-A, Chandigarh, through its Senior Divisional Manager, duly constituted Attorney of “The New India Assurance Company Limited.”

                                                                   ….. Complainant No.2

V E R S U S

M/s Chadha Motor Transport Company (P) Limited, Plot No.17, Transport Area, Chandigarh, through its Director/ Prop.

.…..Opposite Party

CORAM:      SH.P.D.GOEL                                               PRESIDENT

                   SH.RAJINDER SINGH GILL                        MEMBER

                   DR.(MRS).MADANJIT KAUR SAHOTA      MEMBER

Argued by:  Sh.Pavinder Singh Bedi, Counsel for complainants.

Sh.Gunjan Rishi, Counsel for OP.

PER P.D.GOEL, PRESIDENT

1.                The consignment consisting of stationery, for the value of Rs.83,121/-, was handed over to the OP, by the complainant No.1 on 23.6.2009, for the safe delivery from Chandigarh to Hissar, Jind, Behbalpur etc., through truck bearing Regn.No.HR-37B-6299, under different G.Rs (Annexure C-1 to C-9), for which the OP charged Rs.2300/-. When the said vehicle was on its way, suddenly a fire broke out due to which, the material loaded in the truck got damaged.  Accordingly, a DDR dated 24.06.2009 [Annexure-D] was lodged at P.S. Sadar, Jind. It is the case of complainant No.1 that the consignment was got insured from complainant No.2 for a total sum insured of Rs.2,00,00,000/-, Complainant No.1 intimated about the said incident to Complainant No.2, who immediately appointed the surveyor. The surveyor assessed the loss to the tune of Rs.60,569/- vide his report Annexure-F. The complainant No.1 lodged a claim with the OP on 28.08.2009 for the loss suffered, as the incident took place due to the carrier’s negligence. Since the consignment in question was insured with complainant No.2, so on the basis of the surveyor report, it made the payment of Rs.60,569/- to complainant No.1 qua claim disbursement voucher Annexure-J. As the complainant No.2 has settled the claim and paid a sum of Rs.60,569/- to complainant No.1, so he executed the letter of subrogation-cum-special power of attorney by subrogating his rights in favour of complainant No.2 and also authorized him to realize the full compensation from the OP. Hence, this complaint.   

2.                Notice of the complaint was sent to OP seeking its version of the case.

3.                OP in its reply pleaded that Complainant No.1 had hired the services of the replying OP for commercial purpose, so he is not a consumer. It was further pleaded that there was no ‘Consumer Service Provider Relationship’ between the Complainants and the replying OP. It was asserted that the fire broke out without any fault or negligence on the part of the OP. Had the driver of the OP not been vigilant, the loss could have been more. It was admitted that claim was lodged with the replying OP and as a goodwill gesture, it had paid the remaining amount of Rs.16,752/- to the Complainant No.1 vide Cheque dated 15.05.2010, thus, had discharged its liability. The aforesaid amount was the remainder of the total claim lodged by the Complainant No.1 with Complainant No.2. It was asserted that right to recover under a letter of subrogation-cum-special power of attorney is not a consumer dispute. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on his part, a prayer has been made for dismissal of the complaint.

4.                Parties led evidence in support of their contentions.

5.                We have heard the learned counsel for the parties and have also perused the record with utmost care and circumspection.

6.                The learned Counsel for the complainant contended that the consignment consisting of stationery amounting to Rs.83,121/- was handed over to the OP, by complainant No.1 on 23.6.2009, for the safe delivery from Chandigarh to Hissar, Jind, Behbalpur etc., through truck bearing registration No.HR-37B-6299, for which, the OP charged Rs.2300/-. It was argued that when the said vehicle reached near Village Kandela at Jind Kaithal Road,  suddenly a fire broke out due to which, the material loaded in the truck got damaged and the DDR dated 24.06.2009-Annexure-D was lodged at P.S. Sadar, Jind.

                   It was further argued that the said consignment was got insured from complainant No.2 for a sum of Rs.2,00,00,000/-. The complainant No.1 intimated the said incident to complainant No.2, who in turn appointed the surveyor. The surveyor assessed the loss to the tune of Rs.60,569/- vide his report Annexure-F. The complainant No.1 lodged a claim with the OP on 28.08.2009 for the loss suffered, as the incident took place due to the carrier’s negligence. It was further argued that since the consignment was insured with complainant No.2, so it made the payment of Rs.60,569/- to complainant No.1 qua claim disbursement voucher - Annexure-J. It was further argued that as the complainant No.2 has settled the claim and paid a sum of Rs.60,569/- to complainant No.1, so he executed the letter of subrogation-cum-special power of attorney by subrogating his rights in favour of complainant No.2 and also authorized complainant No.2 to realize the full compensation from the OP.

7.                The learned Counsel for the OP raised the arguments that complainant No.1 had hired the services of the OP for commercial purposes, so he is not a consumer. It was also agued that there was no ‘Consumer Service Provider Relationship’ between the parties to the lis. It was lastly argued that right to recover under a letter of subrogation-cum-special power of attorney is not a consumer dispute.

8.                All other facts are admitted. The only dispute between the parties is whether right to recover under a letter of subrogation-cum-special power of attorney is not a consumer dispute.

9.                Admittedly, the OP has raised the plea that complainant No.1 had hired the services of the OP for commercial purposes but to prove the said fact, he has not produced any evidence. The self serving affidavit in support of the reply of Sh.Rajinder Prasad s/o Sh.Badri Nath, Manager of M/s Chadha Transport Co. (P) Ltd., Plot No.17, Transport Area, Chandigarh is not sufficient to prove the said fact. More so, the case of the complainant is that the consignment consisting of stationery amounting to Rs.83,121/- was handed over to the OP by complainant No.1 on 23.6.2009 for the safe delivery from Chandigarh to Hissar, Jind, Behbalpur etc. through truck bearing registration No.HR-37B-6299 on payment of Rs.2300/-. Therefore, it can legitimately be concluded that the complainant has availed the services of the OP for the purpose of earning his livelihood by means of self employment. Thus, it is held that complainants fall under the definition of consumer, as envisaged under Section 2(1)(d) of the Consumer Protection Act, 1986.

10.              It has been held by the Hon’ble Supreme Court of India in the re-case Economic Transport Organisation Vs. Charan Spinning Mills (P) Ltd. & Anr. I (2010) CPJ 4 (SC) that if the complaint is filed by the assured (who is the consumer), or by the assured represented by the insurer as its attorney holder, or by the assured and the insurer jointly as complainants, the complaint will be maintainable, if the presence of insurer is explained as being a subrogee.  The ratio of law laid down in the said case is fully attracted and applicable to the facts and circumstances of the present case as in the instant case also, the complainant No.2 on the basis of the surveyor report – Annexure-F made the payment of Rs.60,569/- to complainant No.1 qua claim disbursement voucher – Annexure J and, thereafter, the complainant No.1 executed the letter of subrogation-cum-special power of attorney in favour of complainant No.2. The present complaint has been filed by the assured – complainant No.1 and insurer – complainant No.2 jointly. Thus, the same is maintainable, as stated above. It is further held that the right to recover under the letter of subrogation-cum-special power of attorney is a consumer dispute.

11.              As a result of the above discussion, the complaint is allowed and the OP is directed to pay Rs.60,569/- to complainant No.2 along with interest @ 12% p.a. from the date of filing of the complaint i.e. 23.6.2011 till its payment. OP is also directed to pay Rs.10,000/- as litigation costs.  This order be complied with by OP within one month from the date of receipt of its certified copy, failing which, the OP shall be liable to pay the awarded amount along with penal interest @ 15% p.a. besides Rs.10,000/- as litigation costs.

12.              Certified copies of this order be sent to the parties free of charge. The file be consigned.