Per Mr.S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This complaint refers to a grievance against the Opponent Transport Corporation of India Limited (hereinafter referred to as ‘the Opponent’) who is the carrier and its services were engaged by the Complainant for transportation of aluminium coils weighing about 11.790 M.T. worth `8,09,089/- from Korba to Mumbai. During the transport, the consignment was found missing. A loss certificate was issued by the Opponent and thereafter this consumer complaint was filed to get indemnified the loss suffered. In the meantime, since the consignment was insured with Complainant no.2 - National Insurance Co. Ltd. (hereinafter referred to as ‘the Insurance Company’) and on settlement of the Insurance claim Complainant No.1, the Consigner, Aluminium Extrusion Centre which since then taken over Anish Metals Private Limited – a Consignee, subrogated its right in favour of Complainant No.2 – Insurance Company and the consumer complaint is filed jointly by the consignor and the Insurance Company against the Opponent.
(2) It is not in dispute that the above referred consignment of aluminium coils was handed over to the Opponents for transportation from Korba to Bombay on 31.12.1993. The delivery of the consignment was not made to the Consignor - Aluminium Extrusion Centre and therefore, the matter was referred to the Opponent, who thereafter issued non-delivery certificate on 11.02.1994 and consequent to it, the claim was lodged with the Opponent by the Consignor (Complainant No.1) on 14th February 1994. Since the claim was not settled for pretty long time, alleging deficiency in service on the part of the Opponent, the Consumer complaint came to be filed on 22.05.1995.
(3) The Opponent resisted the claim as per their written version and objected the claim, firstly stating that no notice as required under the Carriers Act 1865 (hereinafter referred to as ‘the Carriers Act”, for the sake of brevity) was issued. The Complainants are not consumers and the consumer complaint is not maintainable.
(4) Initially the dispute was settled by this Commission as per its order dated 04.04.1996 and the same was challenged before the Hon’ble National Commission by the Opponent vide First Appeal No.118/1997. In view of the Apex Court decision, the National Commission was pleased to set aside the said order dated 04.04.1996 and remanded back the consumer complaint for fresh hearing with an opportunity to both the parties to take appropriate steps available to them according to law. Thus, the consumer complaint was restored back for fresh hearing. It can be pointed out that both the parties did not make any change in their respective pleadings and on the basis of the material placed on record, argued the matter. It may also be pointed out that the apex Court decision referred by the National Commission is also not referred to us by either of the parties.
(5) As earlier pointed out the consignment of aluminium coils weighing 11.790 M.T., is valued as declared to the Opponent and which is recorded in the Carriers Receipt, at `7,91,404/-. The consignment was handed over to the Opponent for transportation by road from Korba to Mumbai. Complainant No.1 was the Consignor, however, as per the certificate of notice vis-à-vis non-delivery certificate issued by the Opponent dated 11th February, 1994, the Opponent admits that the consignment could not be delivered to the Consignee and the Fact of Loss is recorded in the following words:
“Truck No.CII 8677 is missing along with material. FIR No.47 dt. 12.1.94. The value of said consignment is `7,91,404/- FIR lodged at Korba.”
(6) On 14th February, 1994 on receipt of the non-delivery/loss certificate from the Opponent, Complainant No.1 lodged claim with the Opponent for `8,09,089. As earlier pointed out, on getting indemnified through Complainant No.2 Insurance Company of the loss suffered, a letter of subrogation and Special Power of Attorney was executed by Complainant No.1 in favour of the Complainant No.2 – Insurance Company on 22nd May, 1995.
(7) Consumer Complaint filed by the Consignor along with the Insurance Company in whose favour the letter of subrogation was issued can be entertained. On this point a useful reference can be made to decision of the Apex Court in the matter of Economic Transport Organisation, Delhi V/s. Charan Spinning Mills Pvt. Ltd. and Anr., reported in [(2010) 4 SCC 114].
(8) As far as territorial jurisdiction of this Commission is concerned, since the consignments was to be delivered at Mumbai, a part of cause of action did arise at Mumbai. Furthermore, the Opponent Transport Corporation of India has its branch office at Mumbai. The claim was lodged at Branch Office at Mumbai and processed by said Branch Office/Divisional Office. For all these reasons this Commission has territorial jurisdiction to deal with this consumer dispute.
(9) In the instant case, intimation of the loss and/or notice, since the consignment was not delivered was received by the Opponent when the Complainant No.1 reported non-delivery and enquired about it. The Opponent confirmed the loss by its letter/certificate of non-delivery dated 11.02.1994, supra. Therefore, even assuming for the sake of arguments, notice as required under section 10 of the Carriers Act is to be given, said notice was duly given within six months of the loss, when on 14th February, 1994, Complainant No.2 had written to the Opponent and which was duly received by the Opponent on 19.02.1994 as per the acknowledgement endorsed on the said letter. Thus, we find that the complaint does not get vitiated attracting bar of Section 10. The consumer complaint was filed well within two years from the date of cause of action which arose when the loss was reported. In view of the provisions of Section 8 and Section 9 of the Carriers Act, since it is not the case of loss of the consignment due to any event covered by section 3 of the Carriers Act, the Opponent Carrier is liable to make good the said loss to the Consignor. In view of Section 9, burden lies on the Opponent to show that such loss or non-delivery was not owing due to the negligence or criminal act of the carrier, his servants or agents. This onus is not discharged by the Opponent Carrier. The Complainants were not under obligation to prove that the loss/non-delivery of the consignment in question was owing to the criminal or the negligence act of its servant or agents. Under the circumstances, the Opponent Carrier is liable to make good the loss to the Consignor viz. to the Complainant to the extent of value declared of the consignment in the transport receipt i.e. `7,91,404/-. This amount of loss is also confirmed by the Opponent in its certificate vis-à-vis certificate of non-delivery dated 11th February, 1994. Thus, since the Opponent Carrier failed to discharge its contractual or statutory obligation and failed to settle the claim which amounts to failure on its part or imperfection, short coming in a matter of performance; the Opponent is found guilty for deficiency in service within the meaning of section 2(1)(g) of the Consumer Protection Act, 1986 and, thus, liable to compensate the Complainants to the extent of declared value of consignment.
(10) For the reasons stated above, we hold accordingly and pass the following order:
O R D E R
(i) Consumer complaint is partly allowed.
(ii) Opponent – Transport Corporation of India Ltd. do pay `7,91,404/- to the Complainant No.2 – National Insurance Co. Ltd. (for and on behalf of both the Complainants), along with interest @9% per annum from the date of filing of the original complaint i.e. from 22.05.1995 till its realization.
(iii) The Opponent – Transport Corporation of India Ltd. to bear its own costs and pay `25,000/- as costs to the Complainant No.2 – National Insurance Co. Ltd. (for and on behalf of both the Complainants).
Pronounced on 7th May, 2013.
