1.      This revision petition under section 21 (B) of the Consumer Protection Act, 1986 (in short, the “Act’) assails the order dated 27.04.2017 in First Appeal No. 889 of 2016 of the State Consumer Disputes Redressal Commission, Rajasthan (in short, the ‘State Commission’) arising from the order dated 23.06.2016 of the District Consumer Disputes Redressal Forum – I, Jaipur (in short, the ‘District Forum’) in Consumer Complaint no. 778 of 2013. 

2.      The relevant facts of the case are that the petitioner transported a consignment of mustard oil by a tanker of the respondent carrier company after obtaining a Marine Cargo Open Policy  from New India Assurance Co. Ltd. for the period 29.03.2011 to 28.03.2012. The tanker met with an accident due to a collision from the rear by a ‘trolla’ on 30.05.2011 and overturned causing the consignment to spill over. The insurance company settled the claim for Rs 10,03,697/- on 09.11.2011 after obtaining a Surveyor’s report. In lieu of the settlement, the petitioner executed a Special Power of Attorney, a Letter of Subrogation and a Deed of Indemnity in favour of the insurance company. A complaint was then filed by the petitioner and the insurance company against the respondent carrier before the District Forum seeking relief of being indemnified against the loss of Rs 10,03,697/- on the ground that it was liable for the loss. The District Forum dismissed the complaint on the ground that the complainant had obtained the full amount of the claim, no evidence had been submitted in support of the complaint and no evidence had been produced to establish that the accident occurred due to carelessness/negligent driving of respondent’s driver. An appeal was filed before the State Commission which came to be dismissed on the ground that though the appeal was maintainable in the light of the Hon’ble Supreme Court’s judgment in Economic Transport Organization Vs. Charan Spinning Mills, (2010) CPJ 4 (SC) and that negligence is not required to be proved under section 9 of the Carriers’ Act, 1865, the presumption of negligence was not established since the driver though charge-sheeted had not been held guilty. The State Commission also held that the carrier had been engaged for commercial purpose. This order is now impugned before this Commission.

3.      I have heard the learned counsel for both the parties and given thoughtful consideration to the material on the record.

4.      The case of the petitioner is that the State Commission held that the presumption of negligence has been rebutted by the respondent on the ground that the driver of the vehicle had been charge sheeted under section 279 IPC and that a mere charge sheet pending the Court’s final verdict was not conclusive. Reliance is placed by the petitioner on various judgments to contend that the liability of a common carrier is not limited to negligence in the case of loss or damage and on the basis of Patel Roadways Ltd. Vs. Birla Yamaha Ltd. (2000) 4 SCC 91 the liability of a carrier is absolute subject only to an Act of God or war and that the State Commission failed to consider this aspect. As there was no privity of contract between the carrier and the insurance company, the State Commission erred in holding that the services were availed for a commercial purpose.   

5.      Per contra, the respondent argued that the order of State Commission was in order and that a consumer complaint did not constitute a “suit” under the Carriers’ Act.

6.      The finding of the District Forum, on contest, is as below:

From the perusal of the complaint of the complainant it is clear that the complainant has obtained from the New India Assurance Co. Ltd., Rs.10,03,697/- towards loss of mustard oil who has filed the complaint to obtain above amount from the opposite party. The complainant has produced no oral or documentary evidence in support of averments in the complaint. It is well known principle that averments cannot be equated with evidence but averments can be proved only by producing evidence. The complainant has stated in the complaint that according to available information, documents and survey report mustard oil had leaked out due to accident and over turning of tanker no. RJ 14 G 8850 which resulted iin loss to complainant but the complainant has produced no evidence to show that the accident occurred due to the careless and negligent driving by driver of tanker no. RJ 14 G 8850. Whatever loss the complainant has suffered, it has obtained the amount of loss from New India Assurance Co. Ltd. The complainant  has filed this complaint on behalf of the New India Assurance Co. Ltd., Jaipur for obtaining the above amount of loss of Rs.10,03,697/- from opposite party although the New India Assurance Co. Jaipur is not the consumer of the opposite party because there is no contract between the New India Assurance Co. Ltd., and the opposite party. Therefore, according to averments in the complaint, the complainant has failed to prove any deficiency in service of the opposite party, therefore, the dismissal of complaint of the complainant against the opposite party is justified.

 [ Emphasis added ]

7.      The State Commission also concluded as under after hearing both the sides:

There is no dispute about the fact that the insurer, the New India Assurance Co. has executed power of attorney and letter of subrogation in favour of the complainant and the appellant has rightly relied upon I (2010) CPJ 4 (SC) Economic Transport Organisation vs Charan Spinning Mills where the apex court has held that complaint by the assured/ consumer through insurer as his power of attorney holder is maintainable. Hence, the complaint is maintainable and the counsel for the appellant has rightly submitted that in view of Section 9 of the Carriers Act, 1865 the complainant is not required to prove negligence and he has further placed reliance on Economic Transport Organisation (supra) where the apex court has clearly held that complainant not liable to prove negligence on part of carrier in view of Section 9 of the Carriers Act but in view of the above judgment it can very well be concluded that carrier may avoid liability if he establish that the loss or damage was due to circumstances beyond its control.

There is no dispute about the fact that there is a legal presumption of negligence in favour of the consumer but it is a rebuttable presumption and carrier could rebut the same. In the present matter as per the contention of the complainant appellant himself the carrier was not negligence as impugned trolla was hit on back by another tanker and it has also been brought on record that charge sheet under section 279 IPC has been filed against the driver of the tanker. Hence, when presumption of negligence has been rebutted by the respondent, the Forum below has rightly dismissed the claim.

Further, it may be noted that services of the carrier were availed for business purpose and in Economic Transport Organisation (Supra) it is held as under:

………if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a ‘consumer’ and consequently, complaints will not be maintainable in such cases.

          In view of the above this complaint is not maintainable.

[ Emphasis added ]

8.      From the foregoing, it is manifest that the lower fora have returned concurrent findings on the indemnity of the respondent with regard to the issue of negligence on part of the driver of the respondent’s carrier. The issue in this case is essentially whether there is a liability cast on the respondent with regard to the charge of negligence in driving. This issue would be settled only on the outcome of the proceedings under section 297 Indian Penal Code. It would thereafter need to be considered in light of the State Commission’s finding that the carrier had been engaged for a ‘commercial purpose’ which the petitioner would need to controvert. Be that as it may be, this Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e., evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is, therefore, limited to cases where some prima facie error appears in the impugned order. As laid down by the Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 decided on 18.03.2011, Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 SCC 286 decided on 02.08.2016 and T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 decided on 05.04.2019, revisional jurisdiction is warranted to be exercised in cases of concurrent findings on facts by the lower fora only where there is either a jurisdictional error or a material irregularity resulting in miscarriage of justice. In the instant case, the petitioner has not been able to establish either jurisdictional error or material irregularity.

9.      In view of the discussion above and in the facts and circumstances of this case, the revision petition is liable to fail. Accordingly, the petition is dismissed as without merits. However, petitioner is at liberty to approach this Commission once the issue of negligence is settled. There shall be no order as to costs. Pending IAs, if any, also stand disposed of by this order.