DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Consumer Complaint No: 535 of 2011] -------------------------------- Date of Institution : 21.11.2011 Date of Decision : 31.07.2012 -------------------------------- [1] United India Insurance Company Limited, Branch Office, SCO No. 836, 1st Floor, N.A.C. Manimajra, U.T. Chandigarh – 160101, through its Sr. Branch Manager. [2] Sh. Brij Mohan Sadhnta, SCF 80, Grain Market, Sector 26, Chandigarh – 160026. ---Complainants VERSUS [1] M/s South India Roadways, Fleet Owner and Transport Contractor, SCF No. 87, Grain Market (Backside), Near Satsang Bhawan, Sector 26, Chandigarh. (Transported through Truck No. RJ-32-GA-5845). [2] Bhagirath Parshad S/o Banwari Lal Yadav, R/o Baspura Shahjahanpur, Tehsil Behror, District Alwar (Owner of Truck No. RJ-32-GA-5845). --- Opposite Parties [3] M/s Jameel Aziz and Company, APMC, Market Singena Agrahara, Hosur Road Cross, Hosur Road, Bangalore-99. ---Performa Opposite Party BEFORE: SH. LAKSHMAN SHARMA PRESIDENT SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Sunny Kohli, Proxy Counsel for Sh. G.D. Gupta, Counsel for Complainant. Sh. Hitesh Pandit, Counsel for Opposite Party No.1. Opposite Parties No. 2 & 3 ex-parte. PER JASWINDER SINGH SIDHU, MEMBER 1. Complainants have filed the present complaint, against the Opposite Parties on the basis of a letter of subrogation and an undertaking executed by the Complainant No.2 in favour of Complainant No.1 (Annexure C-2 & C-3), on the ground that Opposite Party No.2 is the Owner of truck bearing Regn. No. RJ-32-GA-5845, the services of whom were hired for transportation of 573 boxes of apples from Chandigarh to Bangalore, dispatched by Complainant No.2. The consignment was accepted by Opposite Party No.1 vide GR No. 794 dated 24.10.2010, invoice dated 23.10.2010 for Rs.305015/- for 221 boxes and Rs.3,87,748/- for 352 boxes, through Truck No. RJ-32-GA-5845 for safe delivery at Bangalore. The total agreed freight of Rs.37360/- was to be paid on its delivery at destination. However, an advance of Rs.3400/- was paid and the remaining Rs.34000/- was to be paid on delivery. The entire consignment was professionally packed in trays totaling to 573 boxes and was handed over Opposite Party No.1 for carriage and there was no defect at the time of booking of the consignment. This consignment was insured by Complainant No.2 with Complainant No.1 vide Policy No. 110301/21/ 09/02/00000049, vide Receipt dated 8.7.2010 (Annexure C-5). On 11.05.2010, the driver of the truck in question while driving in a rash and negligent manner caused an accident as the same was not being driven diligently and safely, thus, causing damage to the consignment, because of the impact of accident. The said consignment was duly surveyed for assessment of loss, and a damage certificate was issued by Opposite Party No.1 in favour of Complainant No.2 (Annexure C-6). A copy of F.I.R. No. 0123 dated 30.10.2010 of P.S. Gudibanda, District Chikkabalapur (Karnataka) is at Annexure C-6A with the complaint. A copy of joint inspection report is annexed at Annexure C-6B. The damage to the consignment was surveyed by an authorized surveyor and loss assessor R. Shankar and his survey report dated 20.12.2010 is annexed at Annexure C-6C. The monetary claim was lodged by Complainant No.2 with Opposite Party vide registered letter dated 12.01.2011 as required under Section 10 of the provisions of Carriers Act, 1865. A copy of the same and registered postal receipt are annexed as Annexure C-7 and C-8 respectively. The claim was settled by Complainant No.1 for a sum of Rs.4,26,226/- in full and final settlement in favour of Complainant No.2 and on payment of the said amount a letter of subrogation and special power of attorney/ undertaking was executed in favour of Complainant No.1. Copy of the same is annexed at Annexure C-9. The Complainants claim that as the Opposite Parties have failed to pay the compensation amount in respect of the damage caused to the said consignment, due to its sheer negligence, inspite of receipt of registered notice, as the Opposite Parties have rendered deficient services by not handling the consignment properly enroute during transit. The Complainants claim that the cause of action of filing the present complaint arose when registered notice was sent for making good the loss suffered due to damage to the consignment, which the Opposite Parties have failed to pay so far. The Complainants thus aggrieved of the non-payment of the claim, have sought the relief of direction of payment of Rs.4,26,226/-, along with interest @12% p.a. with effect from 1.12.2011, till it is realized, along with compensation and costs of litigation. The complaint of the complainants is duly supported by an affidavit of Sh. M.R. Sahota, Sr. Branch Manager of Complainant No.1. 2. Notice of the complaint was sent to OPs seeking their version of the case. However, despite service, nobody has appeared on behalf of OPs No.2 and 3, therefore, these were proceeded against exparte on 28.02.2012. 3. The Opposite Parties No.1 has contested the claim of the complainants by filing their reply, taking preliminary objections to the effect that there was no contract between Opposite Party No.1 and the transportation company to prove that the services of Opposite Party No.1 were ever availed by the Complainant No.1 for any consideration. Secondly, as the consignment booked with the Opposite Party No.1 was meant for a commercial transaction, hence, the services hired for a commercial purpose also disentitles the Complainant for filing the present complaint. The answering Opposite Party has also mentions the non-joinder of necessary parties as a ground for dismissal of the present complaint, as the truck in question vehicle of Opposite Party No. 2 bearing Regn. No. RJ-32-GA-5845 stood insured under package policy with the United India Insurance Company Limited at their registered and head office 24, Whites Road, Chennai, vide Policy No. 141702/31/09/01/00002653 which is annexed as Annexure C-9. The answering Opposite Party has also objected to the letter of subrogation as well as the authorization on grounds of which the present Complaint has been filed against them and finally, as the accident in which the consignment was damaged was caused due to heavy rainfall and the truck in question having slipped and skidded of the road. As this happening is an act of god, as per Section 17 of Carriage by Road Act, 2007, the common carrier is not liable for any loss. On merits, the Opposite Party No. 1 has repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply. Thus, claiming no deficiency in service or unfair trade practice on their part, the Opposite Party No.1 has prayed for the dismissal of the complaint. The reply of the Opposite Party No.1 is supported by an affidavit of Sh. Rajesh Kumar s/o Mahesh Chand, Partner (Opposite Party No.1). 4. Having gone through the entire complaint, version of the Opposite Party No.1, the evidence of the parties and with the able assistance of the learned counsel for the Complainant and Opposite Party No.1, we have come to the following conclusions. 5. It would be just to deal with the preliminary objections of Opposite Party No.1 one by one. The very first and foremost objection is with regard to the non-existence of any contract between Insurance Company (Complainant No.1) and the Opposite Party No.1 and also as no consideration amount was ever paid by the Insurance Company to the answering Opposite Party. In the present context, as the Complainants No.2 who had hired the services of Opposite Party No.1 for the transportation of its consignment of Apples from Chandigarh to Bangalore, had actually got this consignment of 573 boxes of applies insured with Complainant No.1. As the Complainant No.2 through its registered letter Annexure C-7 had demanded the Opposite Party No.1 to make good its losses, but on failure of Opposite Party No.1 to respond to this notice, the Complainant No.1 indemnified Complainant No.2 on the execution of the letter of subrogation, which is annexed as Annexure C-3, thus, vide this subrogation letter, all rights of Complainant No.2 for recovery of its dues, from Opposite Party No. No.1, have vested with Complainant No.1. Thus, the objections of the answering Opposite Party on this score are totally out of context, as the Hon’ble National Consumer Disputes Redressal Commission has held in East India Transport Agency Versus M/s Voltas Limited, 2011 (2) CPC 72, that the insurance company having paid the amount under the insurance policy in terms of surveyor’s report - took letter of subrogation – Complaint allowed on the grounds that the driver of the vehicle had failed to take sufficient precautions to preserve the consignment. The order of the State Commission was upheld. Thus, it is conclusively proved that the letter of subrogation is a valid document, which entitles the Complainants to file the present complaint against the Opposite Parties. Even the objection that the letter of subrogation should have been transaction specific deserves to be ignored, as the answering Opposite Party has not cited the judgment of the Hon’ble Apex court that he claims to have relied upon, while raising this objection in para 5 of its preliminary objections. 6. The second objection with regard to the consignment being meant for the commercial purpose and the Complainants not falling under the definition of Consumer as per the Consumer Protection Act, 1986, is also ignored, as the actual consignor, who had hired the services of the Opposite Parties, too is a Complainant as Complainant No.2. Hence, this objection is totally out of context and is ignored. 7. The answering Opposite Party has also sought the protection of Section 17 of the Carriage by Road Act, 2007, wherein, any damage caused to the consignment, the same being an act of God, does not entitles to make good the losses. We feel that in the present context the objections of the Complainant that the vehicle in question was being rashly & negligently driven by Opposite Party No.2 is found corroborated from the F.I.R. (Annexure C-6A) lodged by S.R. Govardhan, Admn. Officer of K.N.R. Constructions Limited, whose property too was damaged and the same is explained in Para 12 of the said report, which claims that the vehicle No. RJ-32-GA-5845 being driven at a very high speed in a rash and negligent manner, so as to dashed/hit the crash byrails on the national highway causing 42 Mtrs. of the railing being spoiled and broken into pieces. The K.N.R. Company suffered an approx. loss of Rs.1.50 lac on account this. This aspect is also found mention in the survey report of the insurance surveyor/ loss assessor Mr. R.Shankar which is dated 20.12.2010 and at Pg.29 under Para 15 “Details of Inspection”, it is clearly mentioned that as per the F.I.R. the truck carrying the particular consignment was being driven at a very high speed and hit and dashed crash byrails on NH road and tilted sideways. The answering Opposite Party has failed to rebut the averments of the complaint on this score in a befitting manner. Hence, the objections of the answering Opposite Party on this score are ignored. 8. In the present context, as the entire complaint of the Complainants has prevailed, against the Opposite Parties, and the Opposite Parties having failed to rebut the claim of the Complainants, with cogent, reliable and trustworthy evidence, the present complaint deserves to be allowed. Thus, the present complaint of the Complainants is allowed against the Opposite Parties, jointly and severally. The Opposite Parties are also directed to pay a sum of Rs.4,26,266/- within 45 days from the receipt of this order, failing which the Opposite Parties shall pay an interest @9% p.a. on the said amount from the date of filing of this complaint, till it is realized. However, there is no order as to costs. 9. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 31st July, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (JASWINDER SINGH SIDHU) MEMBER ‘Dutt’
| | MR. JASWINDER SINGH SIDHU, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | |
