STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Chadha Motor Transport Company (P) Limited, Plot No.17, Transport Area, Chandigarh, through its Director/ Prop. now through duly authorized Power of Attorney.

……Appellant/Opposite Party

V e r s u s

1.    State Bank of India, Regional Stationary Department, Plot No.1-2, “B” Block, City Centre, Sector 5, Panchkula, through its Senior Divisional Manager, duly constituted attorney of “The New India Assurance Company Limited.”

                                                              ....Respondent/complainant no.1

2.    The New India Assurance Company Limited, SCO No.37-38, Sector 17-A, Chandigarh, through its Senior Divisional Manager, duly constituted Attorney of “The New India Assurance Company Limited.”

              ....Respondent/complainant no.2

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh. Munish Goel, Advocate for the appellant.

                   Sh. K.B. Singh, Advocate for respondent No.1.

                   Sh. Rahul Sharma, Advocate proxy for Sh. Ashwani Talwar,                      Advocate for respondent No.2.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 11.01.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, and directed the Opposite Party (now appellant), as under:-

“As a result of the above discussion, the complaint is allowed and the OP is directed to pay Rs.60,569/- to complainant No.2 along with interest @ 12% p.a. from the date of filing of the complaint i.e. 23.6.2011 till its payment. OP is also directed to pay Rs.10,000/- as litigation costs.  This order be complied with by OP within one month from the date of receipt of its certified copy, failing which, the OP shall be liable to pay the awarded amount along with penal interest @ 15% p.a. besides Rs.10,000/- as litigation costs”.

2.               The facts, in brief, are that the consignment consisting of stationary, for the value of Rs.83,121/-, was handed over to the Opposite Party (now appellant), by complainant no.1(now respondent no.1), on 23.6.2009, for safe delivery of the same, from Chandigarh to Hissar, Jind, Behbalpur etc., through truck bearing Regn.No.HR-37B-6299, under different Goods Receipt (Annexures C-1 to C-9), for which the Opposite Party charged Rs.2,300/-. When the said vehicle was on its way, suddenly a fire broke out, due to which, the material loaded, in the truck, got damaged.  Accordingly, a DDR dated 24.06.2009 [Annexure-D] was lodged at Police Station Sadar, Jind.  It was stated that  complainant No.1 had  got the consignment  insured from complainant No.2, for a total assured sum of Rs.2,00,00,000/-. It was further stated that complainant No.1, intimated about the said incident to complainant No.2, which immediately appointed the surveyor. The surveyor assessed the loss to the tune of Rs.60,569/-, vide his report Annexure-F. Complainant No.1, lodged a claim with the Insurance Company on 28.08.2009, for the loss suffered, as the incident took place due to the carrier’s negligence. Since, the consignment was insured with complainant No.2, so on the basis of the surveyor report, it made the payment of Rs.60,569/- to complainant No.1, vide claim disbursement voucher Annexure-J. It was further stated that since complainant No.2 had settled the claim with   complainant No.1, so it (complainant no.1) executed the letter of subrogation-cum-special power of attorney by subrogating its rights, in favour of complainant No.2, and also authorized it to realize the full compensation from the Opposite Party, but it failed to  do so. It was further stated that the aforesaid acts of the Opposite Party amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.               The Opposite Party, put in appearance, and filed written version, wherein, it was stated that complainant No.1 had hired its services for commercial purpose, and, as such, it did not fall within the definition of a consumer. It was further stated that there was no ‘Consumer Service Provider Relationship’ between the complainants and the Opposite Party. It was, however, admitted that the consignment was booked with the Opposite Party, by complainant no.1. It was also admitted that when the consignment was being carried, fire broke out, as a result whereof, it was damaged. It was further stated that there was no fault or negligence, on the part of the Opposite Party. It was further stated that had the driver of the Opposite Party not been vigilant, the loss would have been much more.  It was admitted that claim was lodged with the Opposite Party,  and as a goodwill gesture, it paid the amount of Rs.16,752/-, to complainant No.1, vide Cheque dated 15.05.2010, and had discharged its liability. It was further stated that the aforesaid amount was the remainder of the total claim, lodged by complainant No.1 with complainant No.2. It was further stated that the right to recover under a letter of subrogation-cum-special power of attorney, could not be characterized, as a consumer dispute. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.               The Parties led evidence, in support of their case.

5.               After hearing the Counsel for the parties,  and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

6.               Feeling aggrieved, the instant appeal, has been filed by the appellant/ Opposite Party.

7.               We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

8.               The Counsel for the appellant/Opposite Party, submitted that since the consignment was booked by complainant no.1(now respondent no.1), for commercial purpose, it did not fall within the definition of a consumer, as per Section 2(d) of the Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct.  In this case, the consignment of stationary was booked with the appellant/Opposite Party, a Goods Carrier, by complainant no.1/respondent no.1, which has its Regional Stationary Department at Sector 5, Panchkula, for  the distribution of stationary, to various branches, in the State of Haryana. Under these circumstances, the services of the appellant/Opposite Party were not engaged by complainant no.1/respondent no.1, for any commercial activity, with a view to gain profit. In this view of the matter, complainant no.1, fell within the definition of a consumer as per Section 2(d) of the Act. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.  

9.               It was next submitted by the Counsel for the appellant, that there was no relationship of a consumer and service provider, between the parties, and, as such, the consumer complaint was not maintainable.  He further submitted that this point was highlighted, before the District Forum, but the same was not taken into consideration, in its proper perspective, as a result whereof, it (District Forum), wrongly accepted the complaint.  The submission of the Counsel for the appellant, in this regard, does not appear to be correct.   Complainant no.1/respondent no.1, engaged the services of the appellant/opposite party, for booking the consignment of stationary, for consideration. Since, the consignment was also insured with complainant no.2/respondent no.2, the claim, which was assessed, on account of loss, to the said consignment, while on way, to various places, was paid by the Insurance Company.  In Economic Transport Organisation Vs. Charan Spinning Mills (P) Ltd. & Anr. I (2010) CPJ 4 (SC), the principle of law, laid down, was to the effect, that if the complaint is filed by the assured (who is a consumer), or by the assured represented, by the insurer, as its attorney holder, or by the assured, and the insurer jointly, as complainants, the consumer complaint would be maintainable, if the presence of insurer is explained, as being a subrogee.  In the instant case, the letter of subrogation was executed by complainant no1/respondent no.1, in favour of respondent no.2/complainant no.2, after the claim was settled by the latter. In view of the principle of law, laid down, in the aforesaid case, the consumer complaint filed by the complainants was maintainable. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 

10.            It was next submitted by the Counsel for the appellant, that a sum of Rs.16,752/-, was paid to complainant no.1, over and above, the amount of Rs.60,569/-, the amount of loss assessed by the Surveyor of the Insurance Company, which was paid to it, by complainant no.2. He further submitted that the appellant was not liable to pay this amount to complainant no.1.  In paragraph number 11 of the written reply, it was stated by the Opposite Party, that it paid the remaining amount of Rs.16,752/-, vide cheque no.87412 to complainant no.1 on 15.05.2010. It means that the loss to the consignment, was much more than, what was assessed by the Surveyor of the Insurance Company. It was, under these circumstances,  that the amount of Rs.16,752/-, over and above, the amount of Rs.60,569/-, paid by the Insurance Company, to complainant no.1, was paid by the Opposite Party. The loss was suffered by complainant no.1, on account of the negligence of the Opposite Party. Under these circumstances, it could not be said that the Opposite Party was not liable to pay the amount of Rs.16,752/-, to complainant no.1/respondent no.1. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 

11.            It was next submitted by the Counsel for the appellant,  that even the appellant had a third party insurance cover, and, as such, it was entitled to obtain the amount of loss from the concerned Insurance Company. In case, the appellant had any insurance cover, from the Insurance Company, with regard to the transaction, in question, it can resort to the remedy, which may be available to it. In this consumer complaint, no such issue, can be determined, as it has got no concern, whatsoever, with the present dispute.

12.            No other point, was urged, by the Counsel for the parties.

13.            In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

14.            For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.

15.            However, it is made clear, that the appellant shall be at liberty to resort to any other remedy, which may be available to it, against the Insurance Company, from which it has got insurance policy, for the coverage of third party risk..

16.            Certified Copies of this order, be sent to the parties, free of charge.

17.            The file be consigned to Record Room, after completion

Pronounced.

May 14,  2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg