Jammu and Kashmir

Jammu

CC/328/2017

NEW INDIA ASSURANCE - Complainant(s)

Versus

NEW ASSAM GUWHATI ROADWAYS - Opp.Party(s)

sanjay dhar

04 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

      (Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No.              110/DFJ         

 Date of  Institution      16-07-2013

 Date of Decision         14-03-2018

 

1.New India Assurance Co.Ltd.

 Registered and Head office at 87,

Mahatma Gandhi Road Fort Mumbai

& Divisional Office-II at Auqaf Complex,

Gandhi Nagar,Jammu through its

Sr.Divisional Manager.

2.M/S Sarveshwar Overseas(Prop.Mr.Rohit Gupta),

  Village Sehora Baba Farid Nagar,

   Kunjwani By-pass Jammu through its Prop.

                                                                                                Complainants

                V/S

New Assam Gauhati Roadways ,

Shop No.75/76.Yard No.4 Transport Nagar Narwal

 Jammu.

                                                                                                                                                Opposite party

CORAM

                           Mr.Khalil Choudhary (Distt,& Sessions Judge President

                           Ms.Vijay Angral                                                   - Member

                           Mr.Ghulam Sarwar Chauhan                              Member

 

In the matter of  Complaint under section 10 of J&K Consumer Protection  Act 1987.

Mr.Sanjay K.Dhar,Advocate for complainants, present .

Mr.Sandeep Singh,Advocate for OP,present.                                                        

                                                 

                                                                ORDER                         

                        Facts relevant for the disposal of complaint on hand are that complainant No.1 is a registered company having its registered office at 87,Mahatma Gandhi Road Fort Mumbai carries on the business of general insurance and has its Divisional Office-II at Auqaf Complex, Gandhi Nagar Jammu and present complaint is filed through Mrs.Suman Gupta Sr.Divisional Manager. Contention of complainants is that OP is a common carrier engaged in the business of transporting from place to place and undertakes the carriage/transportation of goods and has its office at Jammu. Complainant submitted that consignment of Basmati rice weighing 15000 kg’s consisting of 600 bags valuing Rs.509713/- was entrusted by complainant No.2 to OP being common carrier for carriage from Jammu to Vashi Navi Mumbai(Maharashtra)for delivery to the consignee,namely,M/S J.Uday & Co.vide invoice No.C-349 dated 22-06-2011,copy of invoice is annexed as Annexure-C2.Complainant further submitted that said goods were booked with OP under GR No.237 dated 22-06-2011 and accordingly were loaded in truck bearing registration No.Pb.08 BS-0755,copy of GR is annexed as Annexure-C3.According to complainants out of said consignment/goods 413 bags of basmati rice has been damaged/spoiled during transit and the damage caused to the said consignment and its non-delivery at the respective destinations in safe condition and undamaged state is sufficient and presumptive proof of negligence and carelessness on the part of  OP,its employees and agents as per provisions of the Carriers Act. Complainant further submitted that OP carrier failed to deliver the goods/consignment at the destination which he was under obligation and under a duty, but the same were damaged/spoiled in goods vehicle carrying the said consignment, since the consignment was not properly covered by OP and its employee while loading the same resulting into entry of water in the said vehicle, thus OP is absolutely liable for the loss or damage caused to the said consignment and the OP and his agents were absolutely responsible for the safety of the goods while they remained in his hands as carrier. Immediately complainant No.2 lodged complaint with OP, being a common carrier and complainant No.2 also  lodged claim for indemnification with complainant No.1 since complainant No.2 had obtained Marine Cargo Open Policy  No.35250021100200200006 w.e.f.30-03-2011 to 29-03-2012 for covering the risk of rice packed etc. while transporting, copy of intimation is annexed as Annexure-C4.That the complainant No.2 also served a notice through registered post to OP for reimbursement of loss suffered, but OP refused and failed to make good the loss, copy of notice is annexed as Annexure-C5 and complainant No.1 being insurer after receiving information of loss from complainant No.2.deputed surveyor,namely, Mr.H.L.Shah of Mumbai, for conducting survey and making assessment of reported loss, who submitted report to the office of complainant No.1 and assessed the loss to the tune of Rs.3,66,397.25/-copy of report is annexed as Annexure-C6.Further allegation is that after receipt of report, complainant No.1, being insurer processed the claim as lodged by complainant No.2 and after scrutiny of claim settled the same in favour of complainant No.2 and on receiving the payment of Rs.3,16,555/-complainant No.2, executed a letter of subrogation, copy of payment voucher through NEFT dated 20-07-2012 is annexed as Anenxure-C7, Complainant No.2 has suffered loss due to carelessness and deficient services of OP,as Public Carrier,OP was under contractual and legal duty to deliver the consignment to the consignee in good condition. Hence complainant prays for indemnification of loss to the tune of Rs.3,16,555/-alongwith interest @ 18% p.a.and survey fee of Rs.12519/-and in addition, prays for compensation under different heads.

                   On the other hand,Op filed written version and resisted the complaint on the ground that the complaint is bad for mis-joinder of necessary parties. It is admitted that the goods were carried through Truck No.PB.08 BS-0755,but the owner and driver of said truck are the necessary parties, as such the complaint cannot proceed without impleading them as opposite party. That as per terms and conditions of GR,OP is neither responsible for any leakage,shortage,breakage,soilage by sun,rain,fire,water or any other circumstances beyond the control of OP and safety and delivery of article is the total responsibility of the consignor. That the consigner has agreed to deliver their goods to the transport company,i.e.Op on the following  terms and conditions which reads as under:

1. The company does not take any responsibility for leakage,shortage,breakage,soilage by run,rain,fire,water or whether sender is responsibile to proper packing.
2. “Not withstanding the above terms and conditions if any dispute or difference is raised by the consignor consignee or their agents, the same shall be resolved through the arbitration by the M.D of the company himself or any person whom he appoints/nominates.

It is further submitted that the OP is not responsible for any loss hence there is no deficiency in service on the part of OP. Lastly it is prayed that complaint be dismissed.

                     Complainants adduced evidence by way of duly sworn evidence affidavits of Suman Gupta Sr.Divisional Manager New India Assurance Co.Ltd.Complainants have placed on record, copy of letter of Subrogation, copy of invoice, copy of GR, copy of letter dated,03-07-2011,copy of certificate issued by New Assam Gauhati Roadways,copy of letter issued by complainant No.2 to complainant No.1,copy of surveyor report and copy of payment voucher.

                    On the other hand,OP adduced evidence by way of duly sworn evidence affidavit of Talwant Singh and copy of letter issued by complainant No.2 to OP.

            We have perused case file and heard L/C appearing for parties at length.

                   Briefly stated grievance of complainants is that complainant No.1 is a registered company having its registered office at 87,Mahatma Gandhi Road Fort Mumbai carries on the business of general insurance and has its Divisional Office-II at Auqaf Complex, Gandhi Nagar Jammu and present complaint is filed through Mrs.Suman Gupta Sr.Divisional Manager. Contention of complainants is that OP is a common carrier engaged in the business of transporting from place to place and undertakes the carriage/transportation of goods and has its office at Jammu. Complainant submitted that consignment of Basmati rice weighing 15000 kg’s consisting of 600 bags valuing Rs.509713/- was entrusted by complainant No.2 to OP being common carrier for carriage from Jammu to Vashi Navi Mumbai(Maharashtra)for delivery to the consignee,namely,M/S J.Uday & Co.vide invoice No.C-349 dated 22-06-2011.Complainant further submitted that said goods were booked with OP under GR No.237 dated 22-06-2011 and accordingly were loaded in truck bearing registration No.Pb.08 BS-0755.According to complainants out of said consignment/goods 413 bags of basmati rice has been damaged/spoiled during transit and the damage caused to the said consignment and its non-delivery at the respective destinations in safe condition and undamaged state is sufficient and presumptive proof of negligence and carelessness on the part of  OP,its employees and agents as per provisions of the Carriers Act. Complainant further submitted that OP carrier failed to deliver the goods/consignment at the destination which he was under obligation and under a duty, but the same were damaged/spoiled in goods vehicle carrying the said consignment, since the consignment was not properly covered by OP and its employee while loading the same resulting into entry of water in the said vehicle, thus OP is absolutely liable for the loss or damage caused to the said consignment and the OP and his agents were absolutely responsible for the safety of the goods while they remained in his hands as carrier. Immediately complainant No.2 lodged complaint with OP, being a common carrier and complainant No.2 also  lodged claim for indemnification with complainant No.1 since complainant No.2 had obtained Marine Cargo Open Policy  No.35250021100200200006 w.e.f.30-03-2011 to 29-03-2012 for covering the risk of rice packed etc. while transporting.That the complainant No.2 also served a notice through registered post to OP for reimbursement of loss suffered, but OP refused and failed to make good the loss and complainant No.1 being insurer after receiving information of loss from complainant No.2.deputed surveyor,namely, Mr.H.L.Shah of Mumbai, for conducting survey and making assessment of reported loss, who submitted report to the office of complainant No.1 and assessed the loss to the tune of Rs.3,66,397.25/-.Further allegation is that after receipt of report, complainant No.1, being insurer processed the claim as lodged by complainant No.2 and after scrutiny of claim settled the same in favour of complainant No.2 and on receiving the payment of Rs.3,16,555/-complainant No.2, executed a letter of subrogation. Complainant No.2 has suffered loss due to carelessness and deficient services of OP,as Public Carrier,OP was under contractual and legal duty to deliver the consignment to the consignee in good condition.

                         Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

                   The genesis of the case of the complainant now therefore, after the complainant No.1 as subrogee has paid the claim of complainant No.2 under the policy hereinafter revolves around the sole point that the case of complainant No.1 on the strength of letter of subrogation has have to be considered only on the base of said document of letter of subrogation, but till now least have been discussed in the foregoing paras about the real import and purport of the said document.

                  So before proceeding further in the case, said letter of subrogation and the real meaning as attached to the said letter of subrogation needs to have first hand information before considering the case of the complainant No.1 on the pedestal of said subrogation policy. Subrogation what actually mean as it could be understood in a legal way is to step into the shoes of the person subrogating his rights to the subrogee and the subrogee thereby gets right to take any action to get the right redressed as already enjoyed by the party subrogating their rights.

                        To lend support in the case reliance can be placed on the judgment of National Consumer Disputes Redressal Commission,New Delhi in case titled Roadwings International  V/S Hindustan Copper Ltd.and another.reported in 1998(2)CPJ37wherein it has been held:

        A Consumer Protection Act,1986 Sections 14 and 17 Insurance claim-Subrogation-Insured goods sent by consigner through appellant Carrier were lost during transit as the truck driver had led with the truck carry consignment-Insurance Company accepted the claim and made payment to the consigner who subrogated his rights to insurer for claiming the amount of claim from the appellant carrier-This plea that there was no privity of contract cannot be accepted-Insurance Company stood subrogated to the rights of consignor about the loss of consignment-Appeal dismissed.

                       L/C for complainant further placed reliance on the judgment passed by Hon’ble Supereme Court of India at New Delhi in case titled Economic Transprot Organisation V/S Charan Spinning Mills(P)Ltd.and another reported as 2010 ACJ 2288,wherein their lordships have been pleased to hold as:

Consumer Protection Act,1986,Section 2(1)©and Carriers Act,1865,section 9- Complaint-Maintainability of-Subrogation-cum-assignment-Consignment duly insured was damaged in transit when the vehicle met with accident-Insurance company settled the claim of consignor-insured and obtained letter of subrogation which contains the words of subrogation and assignment-Whether insurance company can in its own name maintain a complaint under Consumer Protection Act-Held:no;complaint would be maintainable in the name of insured and insurance company may figure in the complaint as attorney holder or subrogee of the insured.

                     As per surveyor report dated, 16-08-2014 net loss assessed by the surveyor  was Rs.3,66,397.25/-and genuineness of surveyor report  dated,16-08-2014, is not disputed by OP,therefore,in our opinion complainants are entitled to the amount assessed by the surveyor to the tune of Rs.3,66,397.25/-.Since it is proved on record that complainant No.1 Insurance Company has indemnified the loss in favour of complainant No.2 and letter of subrogation has been executed by him in favour of Insurance Company,therefore,in the given facts and circumstances of the case and as per settled law, complainant No.1 is entitled to recovery of amount as assessed by the surveyor from OP.

.             Therefore, in view of the foregoing reasons the complaint filed by the complainants for redressal of their grievance is allowed and OP is directed to pay to the complainant No.1 the subrogee of complainant No.2 whose claim as already stated here to fore stands adjusted by complainant No.1 as the insurer and complainant No.1 thus in its capacity as the subrogee thus being entitled as per surveyor report for the amount assessed is entitled to the amount of Rs.3,66,397.25/-alongwith interest @ 6% per annum w.e.f.16-10-2014(i.e. two months after the date of surveyor report),till its payment. The complainants are also entitled to compensation of Rs.5000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5000/-.The OP shall comply the order within two months from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                                     Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

14-03-2018                                                                       Jammu.

 

Agreed by                                                               

                                                                           

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan,

Member