BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.

F.A.No.1761 OF 2007 AGAINST C.D.NO.244 OF 2005 DISTRICT CONSUMER FORUM-II HYDERABAD

Between
M/s Siddhanth Trade Finance Corporation
Rep. by its Proprietor, Sri Surender Kumar Jain
D.No.3-5-18/16, Rajamohalla, Kachiguda
Cross Roads, Hyderabad                                                                                    complainant

1.  The Divisional Manager,
New India Assurance Co. Ltd.,
CMD, Head Office, M.G.Road, Fort
Mumbai-400 001

2.  The Regional Manager,
New India Assurance Co. Ltd.,
Charminar Branch, 22-7-269/1
Near Noor Mahal Complex
Opp: Jubilee Post Office

Respondents/complainants

Counsel for the Appellant           

Counsel for the Respondents

QUORUM:    

&

        7828 under hire purchase scheme and insured the vehicle with the respondents.        

The development officer of the respondents namely, Suresh Kumar had received the premium a sum of Rs.978/- and issued the cover note bearing No.180416 in favour of the owner of the auto.       

The owner of the vehicle       

The relief claimed by the appellant company is beyond the purview of the C.P.Act.        

The Development Officer of the respondent no.2 had never postponed to give the policy in favour of owner of the vehicle.     

1)         Whether the appellant company is a consumer within the meaning of Sec. 2(1)(d)(ii) of the C.P. Act?

2)         Whether the owner of the auto has not violated the terms and conditions of the insurance policy?

3)         Whether there was any deficiency of service on the part of the respondents?

4)         To what relief?

POINT NO.1      

“Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or 

Hires or avails of any service for a consideration which has been paid or promised or partly paid and 

(Explanation; 1.For the purpose of sub-clause (i) “commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment)”.

         OBERAI FORWARDING AGENCY Vs. NEW INDIA ASSURANCE COMPANY LIMITED & ANR.,

  With the distinction between subrogation and assignment in view, let us examine the Letter of Subrogation executed by the second respondent in favour of the first respondent. Its operative portion may be broken up into two, namely, (i) we hereby assign, transfer and abandon to you all our rights against the Railway Administration Road transport carriers or other persons whatsoever, caused or arising by reason of the said damage or loss and grant you full power to take and use all lawful ways and means in your own name and otherwise at your risk and expense to recover the claim for the said damage or loss; and (ii) we hereby subrogate to you the same rights as we have in consequence of or arising from the said loss or damage.

      By the first clause the second respondent assigned and transferred to the first respondent all its rights arising by reason of the loss of the consignment. It granted the first respondent full power to take lawful means to recover the claim for the loss, and to do so in its own name. If it were a mere subrogation, first, the word assigned would not be used. Secondly, there would      not be a transfer of all the second respondents rights in respect of the loss but the transfer would be limited to the recovery of the amount paid by the first respondent to the second respondent. Thirdly, the first respondent would not be entitled to take steps to recover the loss in its own name; the steps for recovery would have to be taken in the name of the second respondent. Thus, by the first clause there was an assignment in favour of the first respondent.

          Further, it was held;

      Now, as is clear, the loss of the consignment had already occurred. All that was assigned and transferred by the second respondent to the first respondent was the right to recover compensation for the loss. There was no question of the first respondent being a beneficiary of the service that the second respondent had hired from the appellant. That service, namely, the transportation of the consignment, had already been availed of by the second respondent, and in the course of it the consignment had been lost. The first respondent, therefore, was not a consumer within the meaning of the Consumer Protection Act and was, therefore, not entitled to maintain the complaint.

KMK*