F.A.No.649/2008  against C.C.No.598/2007,   Dist. Forum-II,Hyderabad .

Between:

Major Amit A Kulkarni,

S/o.Sri Anil V.KUlkarni,

Aged 29 years, Occ:Major in Army,

810, Field Wksp Coy EME

(610 EME Bn)

C/o. 56 APO

  and also

Qtr.No.P 12/2 GM Vihar,

Tanda Akhnoor

Presently at

ATC-17, FAE,

MCEME, Trimulgherry,

Secunderabad- 500 015.                               …Appellant/

                                                                Complainant

           And

M/s. Hari Om Carrier,

1-8-139/1, Temple Alwal,

Secunderabad – 500 010,

Rep. by its Proprietor.                                  … Respondent/

                                                                   Opp.party    

Counsel for the Appellant         :     M/s. Arun Kumar Lathker

Counsel for the Respondent       :     M/s. S.Shyam    

CORAM:HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,

SMT. M.SHREESHA, HON’BLE MEMBER,

AND

                     SRI SYED ABDULLAH, HON’BLE MEMBER

                   THURSDAY, THE TWELFTH DAY OF AUGUST,

TWO THOUSAND TEN.

Oral Order :(Per  Smt. M.Shreesha, Hon’ble Member)

                                                ****

Aggrieved by the order in C.C.No.598/2007 on the file of  District Forum –II, Hyderabad, the  complainant  preferred this appeal. 

The brief facts as set out in the complaint are that the complainant  who is working as Major in Indian Army at Hyderabad was transferred to Jammu and Kashmir  and in the process of shifting  he handed over his Maruti-800 car on 29.12.2006 to the opp.party   for the purpose of transporting the same from Secunderabad to Delhi  and the opp.party  issued consignment note  bearing  no.1398 dt.29.12.2006   and the  complainant paid the transportation charges   of Rs.4,000/-.  The  opposite party being the common carrier  arranged the vehicle  carrier container  bearing no. HR 55 B 2281   and the complainant’s car was loaded into the vehicle carrier container   and along with it two other  vehicles were also placed in the same vehicle belonging  to other military officers.  On 29.12.06  at about 11.30 p.m. complainant’s  colleague has received a message that the vehicle carrier container bearing No.HR 55 B 2281 had caught fire at  Miyapur Cross Roads near Narsimha Cinema Hall  and the complainant and his colleague went   to the spot  of the incident to check the condition of the vehicles  and on the same night they  lodged a complaint  at Miyapur Police Station.   The  vehicle container  provided by the opp.party contains two compartments  which are meant exclusively for transporting the vehicles, the lower compartments are fully loaded with the plastic items such as glasses, plates and other packing products which are made of synthetic  material which can easily  catch fire .   After completing the formalities the vehicles are handed over to the opposite party who in turn left the vehicles at Miyapur Police Station  and the complainant took his vehicle and towed  it  to M/s.Acer Motors  at Tirumalgherry, Secunderabad for the purpose of repairs by spending an amount of Rs.4000/-.   The complainant got his vehicle insured with M/s.National Insurance Co. Ltd. The complainant incurred total expenditure of Rs.1,81,712/-  to get his vehicle repaired, out of which  the insurer has paid only Rs.1,19,500/-  and hence he incurred Rs.62,212/- extra   expenditure.  The complainant submits that due to loading the container with plastic items made of synthetic material which can easily  catch  fire with even  a minimum friction, the fire accident occurred and  his vehicle burnt completely which amounts to  deficiency in service.    The complainant submits that   due to deliberate negligence and misuse of carrier by the opp.party  he  had to incur expenditure  and suffer  mental agony and as such he is entitled for compensation of Rs.2 lakhs.  The complainant approached the District Forum to direct the opp.party to pay  Rs.2,87,652/- together with interest at 24% p.a. from 6.1.2007 till the payment is made and to pay Rs.5,000/- towards  costs. 

The opposite party filed counter  stating that on 29.12.2006  the complainant had approached  them  with  one Major Gaurav Singh to transport their cars from Secunderabad  to Gurgaon  and the opp.party provided excellent services to them   and negotiated and liaisoned with Jai Mata Di Road Carriers and arranged a  part  car carrier and loaded the two cars  in front of the complainant  and Maj.Gaurav Singh at Old Bowenpally, Secunderabad  in Lorry bearing no.HR-558 2281 of Swift Roadlines, shop no.25, Kapasera Border, Gurgon through Jai Mata Di Road Carriers, Plot no.108, Yadav Parking NH-7, Old Bowenpally, Secunderabad.    The Maruti Car of the complainant was accepted on owners risk basis as per the consignment note no.1398 dt.29.12.2006  in which it is clearly indicated  that the opp.party is  not responsible for any leakage, breakage and damage  to the goods transported.  The opp.party was acting as a commission agent  by paying freight charges of Rs.3,800/-  to Jai Mata Di Road Carrier  and in the said  transaction it had benefit of only  a sum of Rs.200/-.  Opposite party further submits that the remaining portion of the carrier does not belong  to them  as it was loaded by some other transport companies through Jai Mat Di Road Carriers. The opposite  party  submits that  they have not  loaded any plastic items  or glasses, plates or any other packing products  but the said items were  loaded by some other transporter and it was not in the compartment where the cars were loaded.  The opposite party submits that the said plastic material are  not the cause for fire and it is clearly mentioned that  short circuit has caused fire to the Car Carrier and the same has been clearly stated in the charge sheet.    The complainant has already received the amount from the Insurance Company  as per the assessed damage and the claim made by the complainant  against the opp.party is not tenable and    the claim made by the complainant to the tune of Rs.2,87,652/-  is more than the value of a new Maruti Car.  The  opposite party further submits that the Dist.Forum, Hyderabad  has no jurisdiction to entertain the complaint   as the transaction took place  within the jurisdiction of Dist. Forum, Rangareddy District and  that there is no deficiency in their behalf and seeks dismissal of the complaint  with costs.      

            District Forum  based on the evidence adduced i.e. Exs.A1 to A9 and Exs.B1 to B7  dismissed the complaint. 

        Aggrieved by the said order, the complainant preferred this appeal.

        The facts not in dispute are  that the appellant/complainant transported his Maruti-800 car  on 29.12.2006  by paying  to the opposite party  Rs.4000/-  for transport  from Secunderabad to  Delhi.    On 29.12.2006 at about 11.30 p.m.  the complainant’s colleague  received  a message that the vehicle  caught  fire  at Miyapur cross roads and the complainant together with his colleague lodged   a complaint  with the police. 

        It is also  not in dispute that the appellant/complainant got his vehicle  insured with  National Insurance Company.  It is the complainant’s case that he spent an amount of Rs.1,81,712/-  towards  repairs  as evidenced under Ex.A6  invoice of Acer Motors out of which  the insurer paid   Rs.1,19,500/- .  It is the complainant’s case  that he incurred Rs.62,212/-  over and above the amount paid by the insurance company together with Rs.3,400/- for fixing  the tyres and Rs.340/- towards fixing the number plate along with towing charges etc. totaling to  Rs.87,652/-. The complainant got issued  a legal notice vide Ex.A8 dt.12.4.2007   calling upon the opp.party  to pay Rs. 87,652/-  together with interest, compensation and costs. 

        It is the  case of the  respondent/opposite party that   the principal  Carrier and  the  Insurance Company have not been made  a parties  and there is no evidence of  the car being repaired.  The learned counsel for the  respondent relied on the judgement of the National Commission reported in 2008 (2) ALT 14 (NC) (CPA)  SAVANI TRANSPORT PVT. LTD. vs. UNITED INDIA INSURANCE CO. LTD.  and another in which the National Commission held that the  Consigner received the amount from the insurance company after executing  the letters  of subrogation  and assignment  and therefore the complainant would  not   fall  within the definition of ‘Consumer’.  The learned counsel for the respondent submitted that even  in the instant case since the  complainant received the amount from the insurance  company they are not liable to pay any further amounts.  He further contended in his written arguments that  the respondent/opp.party collected hire charges of Rs.4000/-  out of which  they paid Rs.3,800/-  to  Jai Mata Di Road Carriers for   transporting the complainant’s vehicle and received only Rs.200/-  as their commission and the complaint is bad for non  joinder of Jai Mata Di Road Carrier  and Insurance Company as necessary  parties. 

We are of the considered opinion that with respect to non joinder of Jai Mata Di Road Carrier, this complaint cannot be termed as bad, since there is no privity  of contract  between the complainant and Jai Mata Di Road Carrier   as the amount admittedly  vide Ex.A1 was paid to the respondent/opposite party herein on 29.12.06.  Ex.A1 clearly  evidences that  Hari Om Road Carrier  who is the opposite party herein has received an amount of Rs.4000/- towards the carriage charges, therefore the question of making Jai Mata Di Road Carrier  as party to the proceedings does not arise.  Even otherwise, the respondent/opposite party herein   has admitted receipt of Rs.200/- towards commission and therefore  the complaint is maintainable.

        It is an admitted fact that  the vehicle carrier caught fire and the subject car was  damaged. It is the contention of the respondent/opp.party that the invoice  Ex.A6  of the  ACER Motors  for an amount of Rs.1,81,712/- for repairing  of the damaged vehicle cannot be relied upon  since  there is no evidence that the complainant  has  spent  these amounts  for  repairs. 

         Now we address ourselves  to the  contention of the respondent/opp.party as to whether  the complainant having received the amount from the insurance company can claim the balance amount   from the Transport Company?

         We rely on the judgement of Apex  Court  in I (2010) CPJ 4 (SC) ECONOMIC TRANSPORT  ORGANIZATION vs. CHARAN  SPINNING MILLS (P)  LTD & ANR. in which the  Apex Court laid  down that remedy under the Act being summary in nature, once the  consumer is  complainant or is co-complainant   is not necessary to the  Consumer Forum   to probe  the exact nature of relationship  between the consumer(assured)  and insurer  in a complaint against service provider. The judgement relied  upon by the respondent/opposite party cannot be relied upon in view of the afore mentioned judgement of the  Apex Court in which it is explained  in detail Section 9 of the Carriers Act  together with the   right of subrogation with relevance  to deficiency in service    and Consumer Protection Act. Therefore it can be observed  that the complainant herein is a ‘consumer’ and falls within the definition of Consumer Protection Act. 

        Since it  an admitted fact that the car was damaged and taking into consideration  the receipts issued by ACER  Motors  for Rs.20,000/- vide receipt no.22267,  for Rs.17,212/-  vide receipt no.30428 paid by cheque of HDFC Bank, for Rs.25,000/- paid by cheque of HDFC Bank  vide receipt no.30427 we are of the considered view that  an amount of Rs.62,212/-  paid by the complainant  to ACER Motors  as evidenced under Ex.A6 receipts should be paid by the respondent/opposite party  to the appellant/complainant herein together with compensation of Rs.5000/- and costs of Rs.3000/-.    The rest  of the prayer of the complainant is being  disallowed since there is no documentary  evidence  in support of  his claim. 

         In the result  this appeal is allowed  in part and the order of the District Forum is set aside  directing the  respondent/opp.party to pay an amount of  Rs.62,212/-  to the  appellant/complainant   together   compensation of Rs.5000/-  and costs of Rs.3000/- . Time for compliance four weeks.

                                                                        PRESIDENT

                                                                        MEMBER

                                                                        MEMBER

                                                                          Dt.12.8.2010

Pm*

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