MRS. NEENA SANDHU, PRESIDING MEMBER

1.   This is an appeal filed by the complainant against order dated 9.2.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 723 of 2008.

2.     Briefly stated the facts of the case are that the complainant engaged in the business of exporting of bathroom fittings and components. The complainant had obtained a Marine Cargo covered insurance policy bearing No. 110201/21/03/00017 from the OPs for a value of Rs.22.00 lacs on 2.6.2003, in which it was specifically mentioned that in the event of the loss or damage, the claim would be settled in Ireland and the claim would be payable by M/s CTBOWRHIG Co. (Insurance) Ltd., the bowring Building, P.O. Box 125 Tower Place, London ECTT 3BP. The cover note was issued from Chandigarh to Keeling Heating Ltd., U.K. for transporting of bathroom fittings namely Multi Rail Warmers and Towel Warmers, for coverage of the value of the invoice plus 10% on warehouse to warehouse basis. It was submitted that the goods were transported from Chandigarh through M/s M.S. Road Lines, vide GR No. 7053 and was loaded in Truck No. HR-12A-1855. The stuffing was done and the inspection was duly carried out by the Department of Central Excise range 3(i) Chandigarh and stuffed in Container No. CAXU 4055685 bore Seal No. 19/89-CE-CHD dated 9.6.2003. It was submitted that the above said vehicle after due stuffing and sealing left the premises of the complainant on 9.6.2003. The complainant had appointed M/s Hema Marine Services Pvt. Ltd. for the purposes of export of the goods and they have in turn utilized the service of M.S. Road Lines, 301/6, Concor Building, Tuglakabad, New Delhi, for transporting the empty container to Chandigarh for the purpose of stuffing and then taking it back to International Container Depot at New Delhi. The container was picked up by M/s M.S. Roadlines on 6.6.2003 and was moved to Chandigarh where it was stuffed on 9.6.2003 and the container should have reached ICD Tuglakabad by 10.6.2003 but the same did not arrive till 12.6.2003, when the forwarding agent contacted the M.S. Roadlines that the truck might have been broken down. It was further submitted that on 12.6.2003 the container along with the truck was found by M.S. Roadlines with the concerned Police Authority at Welcome Police Station, Delhi and the same had been found abandoned in Seelampur by the Police and was taken into the custody. The said truck and container was got released by M.S. Roadline Clearing and Forwarding Agent on 13.6.2003 and was taken to International Container Depot Tuglakabad on 14.06.2003 and that information was given by the forwarding agent to the complainant insured on 16.6.2003 vide their letter dated 16.6.2003. It was submitted that the container and the truck was got weighed by the clearing and handling agent after off loading the container at ICD, both before and after loading of the same. It was then found that there was variation in the weight of the container and the weight as per the packing list and since the same had been sealed by the Custom Excise Officer, no other person was authorized to open the said container and could be opened in the presence of the Custom/Excise Officer, who were duly informed. The complainant was informed about the loss on 16.6.2003 by the Clearing and Forwarding Agent and on 16.6.2003 the complainant requested the Custom Authority to open the excise seal. The said request made by M/s Anapurna Cargo Movers vide their letter dated 17.6.2003. The permission was granted and the container was opened on 17.6.2003 by the Custom Department and the goods were found short for a value of Rs.13 lacs. The Welcome Police Station, Delhi lodged a report dated 10/11.6.2003 that the vehicle was found abandoned by them, opposite SDM Office, G.T. Road Area Selampur Police Station. On the request of the vehicle owner/representative Mr. Jasmal made to the Police Station, Nandnagari, New Delhi, the vehicle was released along with container on 13.6.2003 and an intimation was also given to P.S. Okhla, Phase-I, New Delhi on 18.6.2003, as well as to Police Station, Industrial Area, Phase-I, Chandigarh on 24.6.2003.It was submitted that the said vehicle while transporting goods from Chandigarh to Tuglakabad in Delhi was found abandoned by Welcome Police Station Delhi on 10/11.6.2003 on the road side and an FIR was lodged with the Police Station, Industrial Area, Phase-I, Chandigarh. It was further submitted that CONCOR issued Cargo unloading Telesheet dated 21.6.2003 shows that only 181 packages were unloaded from the container. The container was opened in the presence of the surveyor after getting permission from the Custom Authority and it was found that out of 390 boxes only 181 boxes were available and net loss of Rs.10,54,311/- was found. The copy of the fax received from M/s Hema Marine Services Pvt. Ltd. dated 16.6.2003 shows that the complainant was duly informed about the loss and information was immediately given to the OPs also. The intimation was also given to the Custom Authority seeking permission to cut the Central Excise Seal (Annexure A-19). It was next submitted that vide letter dated 18.6.2003, the OPs again requested to carry out the necessary inspection for ascertaining the loss. It was submitted that vide letter dated 20.6.2003, several documents were asked for by the surveyor appointed by the OPs. The claim was placed by the complainant with M/s M.S. Roadlines on 27.6.2003 (Annexure A-21). The necessary documents demanded were duly submitted with the surveyor (Annexures A-22 and A-23). Vide letter dated 7.7.2003, the CHA confirmed that the complainant was informed about the loss of the container on 16.6.2003. It was averred that vide letter dated 7.7.2003, the OPs were informed about the intention of the complainant to bring the goods back from the ICD Tuglakabad/Custom Ware House back to Chandigarh for the purposes of inspection. The documents were also provided by the complainant to the surveyor on the basis of demands raised by the surveyor from time to time and certain other clarifications required by the Surveyor were also replied vide letter dated 26.8.2003. The damage certificate was provided to the surveyor vide letter dated 29.8.2003 and the marine survey report was submitted by R.K. Singal Company dated 20.10.2003 and a professional fee bill of Rs.37,930/- raised by the surveyor was also duly paid by the complainant. Vide letter dated 19.4.2004 the OPs requested for some more documents to be submitted to them and vide letter dated 28.7.2004, the complainant submitted letter received from P.S Industrial Area, Chandigarh declaring Manoj Kumar, driver of the vehicle as Proclaimed Offender (P.O) to the OPs. The same was replied vide letter dated 5.5.2004. The OPs further appointed Sh. M.Kumar as Investigator to conduct the enquiry of the said loss and the complainant gave all the information to the investigator. The complainant wrote several letters to settle the claim but the claim was not settled. The claim was illegally repudiated on false and frivolous grounds vide letter dated 28.6.2006. The aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. Hence, the complaint was filed.

3.    Reply was filed by OPs No. 1 & 2 and admitted the factual matrix of the case. It was pleaded that the complainant obtained a Marine Cargo Policy No. 110201/21/03/00017 for a sum of Rs.22 lacs. It was pleaded that the complainant had failed to make M/s M.S. Roadlines as a party in the present case. The complainant informed the OPs vide letter dated 16.6.2003 that the consignment dispatched on 9.6.2003 did not arrive at ICD. TKD till 12.6.2003 afternoon and there was weight difference in the cargo as in the packing list. After receipt of information, letter dated 18.6.2003 was written to M/s R.K. Singal and Co. Pvt. Ltd., Surveyors and Loss Assessors to survey & assess the loss. It was further pleaded that the excise seal was got opened on 17.6.2003 by the insured without informing the company as well as without the presence of any representative of the OP. It was denied that the goods were found short for the value of Rs.13 lacs. The request regarding the opening of the excise seal was made by M/s Annapurna Cargo Movers, who had no role to play. The consignment was booked through M/s Hema Marine Cargo Services only. The surveyor in his report dated 20.10.2003 clearly mentioned that M/s Hema Marine Cargo Services seems to be an unauthorized CHA. It was also submitted that as per the information provided by M/s Hema Marine, the container was stuffed on 9.6.2003 and left the factory on the same evening which should have reached the ICD Tuglakabad, Delhi by 10.6.2003 but the same did not reach there till 12.6.2003. It was further pleaded that the said truck was got released by M/s M.S. Roadlines on 14.6.2003 and taken back to ICD/TKD on 14.6.2003 but the transporter failed to give information to the complainant uptill 16.6.2003. The loss was discovered on 10.6.2003/11.6.2003 and FIR was lodged on 1.8.2003. It was denied that the container was opened in the presence of the Surveyor or any authorized representative of OP. It was also submitted that the intimation regarding the loss was given to OPs only on 17.6.2003. Thus, the container could not have been opened in the presence of the surveyor. As per the Survey Report, M/s Annapurna Cargo Movers sought the permission from the Custom Department to open the excise seal vide their letter dated 17.6.2003 and on 17.6.2003, the container was opened without the presence of any representative of the OP company and the existing seals were not intact. The surveyor at the time of inspection on 18.6.2003, the container was having one local lock and the other door was tied with two wires. The container was again opened on 19.6.2003 and out of 389 boxes as per packing list only 181 boxes were available. In his report, it was further mentioned that the net assessment of loss was Rs.10,54,311/- but the mere assessment by the surveyor did not mean that the losses were recoverable from the insurer and the same was dependent upon the terms, conditions and warranties of the insurance cover. There was gross negligence on the part of the insured on the basis of the reasons given in the report.  It was further pleaded that permission to get the excise seal removed from the container was sought by M/s Annapurna Cargo Movers and not by the M/s M.S. Roadlines through which the consignment was sent. It was also pleaded that the intimation regarding the loss was given to OPs for the first time on 17.6.2003 and the Surveyor was appointed on 18.6.2003. It was further submitted that prior to the said date, the complainant had got container opened on 17.6.2003 without the presence of the representative of the OPs. A perusal of Annexure A-21 shows that the said claim was lodged by the Complainant to M/s M.S. Roadlines whereas as per the claim of the Complainant the shipment was transported to Hema Marine Services Pvt. Ltd and no claim was lodged by the Complainant against M/s Hema Marine Services Pvt. Ltd. It was denied that all the particulars as demanded by the surveyor were provided by the complainant.  It was further pleaded that the consignment was sent from Chandigarh to Delhi but the same did not reach uptil 16.6.2003 and the complainant took no steps to enquire about the same. In the letter dated 15.7.2003 & 7.7.2003 of M/s Hema Marine Services Pvt. Ltd., there was no explanation explaining the relationship of M/s Hema Marine Services Pvt. Ltd. and M/s Annapurna Cargo Movers Services. The Surveyor vide letter dated 20.6.2003 had asked the Complainant to inform the reasons for late information to the underwriter, damage certificate received from the transporter, detailed seals of the different agencies, salvage value etc. The Complainant replied to the said letter vide letter dated 26.8.2008 in which he informed that the damage certificate was not given by the transporter and the written information was given to the insurance company for the first time on 17.6.2003 and request letter for appointment of Surveyor was given on 18.6.2003. The salvage value of the goods was not provided even in the letter dated 26.8.2003.  It was admitted that the Surveyor M/s R.K. Singal and OP Company gave its report dated 20.10.2003 and denied that the professional fee of the Surveyor was duly paid by the complainant. The explanation regarding the role of M/s Annapurna Cargo Movers was not found to be satisfactory. Moreover, it was also stated by the Surveyor that the insured has failed to produce any weighment receipt or evidence at the time of loading/ dispatch and in the G.R., there was no reference of the weight of consignment as well as the complainant did not submit any weighment of empty container with the tractor trailer loaded with the consignment. It was not possible to ascertain as to what was the weight of the goods at the time of the dispatch. It was further pleaded that as per the surveyor report there was a gross negligence on the part of the insured as Sh. M. Kumar was deputed by the OPs to investigate the claim, who gave his report dated 17.1.2005. As per the report, the seal and lock was intact at the time of handing over of the truck and container to the transporter-cum-truck owner by the police and the vehicle remained under the possession of the truck owner/transporter for 18-20 hours in between exit from the police and lodging the vehicle inside the ICD/Custom custody. During such period, the misappropriation of the goods had taken place. The claim was not payable to the complainant as per the terms and conditions of the policy and the surveyor report. The goods were manipulated by the insured and its transporter and the loss/damage was prima facie attributed to the willful negligence of the complainant and the same falls within the exclusion clause No.4.1 of the Policy. As such, the claim was rightly repudiated by the OPs. All other allegations leveled by the complainant in the complaint were denied and pleaded that there was no deficiency in service on their part and prayed for dismissal of the complaint with exemplary costs.

4.  The parties led their evidence in support of their contentions.

5.  The learned District Forum dismissed the complaint that the complainant had failed to prove any deficiency in service, lapse or negligence or indulgence in an unfair trade practice on the part of OPs and the learned District Forum has come to the conclusion that if there is any deficiency in service i.e. on the part of the transporter – M/s M.S.Roadlines who has not been impleaded as a party and not on the part of OPs.

6.    Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant. Sh.Parvez Chugh, Advocate has appeared on behalf of appellant but none has appeared on behalf of respondents.

7.  In appeal, it is submitted that the learned District Forum has failed to appreciate that the complainant being an exporter, had taken a specific policy for this consignment in question and it was to cover up the risk of loss during transit period from warehouse to warehouse basis. The learned District Forum has failed to appreciate that a perusal of the repudiation letter dated 28.6.2006 shows that the claim has been repudiated by alleging that the complainant had not fulfilled clause 4.1 of Marine Cargo Policy. The learned District Forum has taken into consideration that plea taken by the insurance company that on 13.6.2003 when the truck was got released from the police station, the locks and seals put by the Excise Department, Chandigarh were not intact is wholly misconceived and without any evidence. It is submitted that not even a single document has been placed on record by the insurance company to strengthen the aforesaid assertion. The insurance company has ignored the evidence on record that the truck was found abandoned in Seelampur area and 208 boxes were stolen. The driver and cleaner had fled after having committed this theft, who could not be traced by the police. An FIR was also registered by the police and since they could not be traced, they were declared as the Proclaimed Offender. The learned District Forum has still failed to appreciate that the police received intimation at 12.15 AM on 13.6.2003 that a truck was standing abandoned at GT Road in Seelampur Area. A police personnel visited the office of the transporter on 13.6.2003 and intimated about the police having taken the custody of the truck in question. The owner of the truck got the truck released from the police station on 13.6.2003 and it took the whole day for getting the truck released from the police custody. The truck was not taken anywhere else as it inferred from the plea taken by the insurance company but it was taken directly to ICD, Tuglakabad. It is submitted that there is nothing on record to show that the delay, if any, in taking the container to ICD, Tuglakabad on 14.6.2003 is inordinate. If nothing is proved from the record then it would not matter as to whether the container was taken to ICD Tuglakabad on 13.6.2003 or 14.6.2003. This fact has got no direct relationship and bearing to the loss, which already had taken place at the time when the truck in question was found abandoned by the police at GT Road. It has also not been disputed by the insurance company that this theft took place during the transit of the goods, which had left the warehouse and had not reached its destination at abroad. The insurance company can repudiate the claim only on one ground i.e. when the claimant gets the theft committed. It is only under these circumstances that the plea of willful misconduct can be taken by the company and in no other circumstances. The insurance company has failed to categorically allege and prove on record that any act of the complainant was a factor contributing to the theft, which had taken place. A perusal of the repudiation letter would show that the allegation made is indirect and is totally vague in nature. Thus, no reliance can be placed on it by the learned District Forum as the same is resultantly liable to be ignored. The surveyor himself in his report dated 20.10.2003 at running page 46 of the reply has recorded as below :-

Cause of loss : The losses were caused due to pilferage on the way either by the transporter’s owner, driver and conductor.”

The plea taken by the insurance company is contradictory to the report of their own surveyor to this effect and consequently not tenable either on facts or under the law. The learned District Forum has failed to appreciate the fact that a perusal of the complaint with which 44 documents have been enclosed, would show that the complainant has averred each and every fact, which was material to the case. It cannot be found from the document and pleadings of the complainant that the complainant had concealed the facts. The complainant himself has averred in the complaint that the truck was found abandoned and the driver and conductor were found to have fled from the site. This is also finding given by the surveyor of the insurance company. The allegation of the seals of the container being intact is the creation of the insurance company itself,  which is based on no record. Thus, firstly there is no misrepresentation on the part of the complainant and nor there is any failure on the part of the complainant to disclose any fact much less a material fact. The insurance company has not come up with any fact, which has been concealed. It is submitted that the theft could not have been committed by the driver and the cleaner without their having broken the seals. The FIR also contains an averment made by the complainant on the basis of the report of the police of Seelampur at Delhi to the effect that the vehicle in question was found abandoned by the police in a direction, which was opposite to his normal route. It is further submitted that the loading and unloading is done in the container in the presence of the officials of the Excise Department. It is the department, which puts its seals on the container. Once the loading is required to be done in the presence of the officials of the Excise Department, as such, no body has the authority to open the container in the absence of these officials. It is stated that the required procedure was followed before opening the container at ICD Tuglakabad and a request in writing was duly made for permission to open the container and requesting for the presence of the concerned officials. The request dated 17.6.2003 made by the handling agents on which orders have been passed by the Superintendent Customs, permitting the seals to be cut in the presence of the officials of the custom department and remarks having been made by the Excise Inspector to the effect that at the time when the container was opened, the excise seals were not intact and the same were cut in his presence and the goods were found to be short. There was no question of having an open delivery at the police station by the complainant on 13.6.2003. It is submitted that the container was 40 feet in length and the police would not have allowed the complainant to open the container, spread the goods at the premises and count the boxes. There was no space available there and moreover the permission of the customs as well as the Excise Department was required before touching the container for this purpose. The complainant came to know of this fact on 16.6.2003 and passed on this information to the respondent at 12.57 AM. The insurance company is wrongly taking a plea that this information was received by them on 17.6.2003. A perusal of paras 10 to 12 of the reply shows that the information having been received by them through letter dated 16.6.2003. The respondent appointed M/s R.K.Shinghal & Co. Pvt. Ltd. to assess the loss and the surveyor has duly assessed the loss. It is submitted that since the container was opened at ICD Tuglakabad on 17.6.2003 in the presence of the officials of two departments i.e. Customs and the Excise, there could not have been any pilferage by anybody as the ICD Tuglakabad depot is under the control of the Customs Department and nobody can taken anything outside and it is a heavily secured premises. The services of M/s Hema Marine Services Pvt. Ltd. Noida were taken by the complainant for the purpose of successful shipment of the consignment. The role of M/s Hema Marine was that of a ‘facilitator’ as they look into all the aspects of the shipment right from transportation to custom clearance and actual shipping. They outsource these jobs to competent parties and hire transporter for transportation of the container. They had outsourced part of the job to M/s Anapurna. Nobody can do this entire exercise single handedly and consequently, no fault can be found in the procedure adopted by M/s Hema Marine and the obtaining of its services by the complainant. It is a well settled proposition of law that the rejection of the claim has to be for sound reasoning and the insurance company cannot reject the claim in a mechanical manner. Reliance is being placed upon the judgment rendered by the Rajasthan State Commission, Jaipur reported in I (2009) CPJ 123, titled as ICICI Lombard Vs. Radha Devi. This judgment is also based on another judgment reported in IV (2008) CPJ 1 (SC) titled as National Insurance Company Vs. Nitin Khandelwal. Reliance is also placed upon the judgment rendered by National Commission in the case titled as M/s Tanda Textiles and Processing Mills Vs. United India Assurance reported in 2007(1) CPC 723. It is submitted that if the insurance company is allowed to find faults like this in the entire episode and further allowed to repudiate the claim by finding fault at one place or the other then in all cases, the insurance would be slipping away and disowning its contractual liability. It is not the case of the insurance company that the complainant had loaded less consignment in the truck. If the complainant had intended to commit a theft of its own consignment, then there were a number of better ways and it could have been done in its own warehouse and there was no need to do so on the way/road side. The learned District Forum are contrary to the facts and record and therefore are not sustainable on the face of it. The entire documentary evidence produced by the complainant has been completely ignored by the learned District Forum. Hence it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

8.  We have heard the learned counsel for the appellant and perused and record. 

9.    After hearing the learned counsel for the appellant/ complainant and after perusal of the file it is clear that the complainant had booked the consignment with the M/s Hema Marine Cargo Pvt. Ltd. for the purpose of export of goods. M/s Hema Marine cargo Services have utilized the services of M.S. Roadlines, 301/6 Concor Building Tuglakabad, New Delhi for transporting the empty containers to Chandigarh for the purpose of stuffing and then taking it back to international container depot (ICD) at New Delhi. The container was picked up by M.S. Roadlines on 06.06.2003 and was moved to Chandigarh where it was stuffed on 09.06.2003.  the container should have reach ICD Tuglakabad by 10.6.2003 but the same did not reach till 12.6.2003. But on 12.6.2003 the said truck along with the container was in the custody of Police Authority, Delhi as the same was impounded by the police lying abandoned on the road. On 13.6.2003 the same was got released from the police by M.S. Roadlines and forwarding agent which on 14.6.2003 was taken to ICD Tuglakabad. But the transporter failed to give any information regarding this incidence to the complainant uptill 16.6.2003,  whereas it took place on 10.6.2003/11.6.2003 and the FIR regarding this was lodged much later on 1.8.2003. There at ICD Tuglakabad the said container got weighed by the clearing and handling agent both before and after off loading.  It was found that there was variation in the weight of the container and the weight as per the packing list. Since the same was sealed by the Custom and Excise Officer no other person was authorized to open the said container and could be open in the presence of Custom/Excise officer.  The request for opening the excise seal was made by M/s Anpurna Cargo movers, who had no role to play as the consignment was booked through Hema marine Cargo Services.  It is pertinent to mention here that the surveyor in his report dated 20.10.2003 has specifically mentioned that M/s Hema Marine Cargo Services seems to be an unauthorized CHA.  After getting the permission the said container was opened on 17.6.2003 in the absence of any representative of the OPs (Insurance Company) and the goods were found short.  After this a surveyor was appointed who inspected, furnished a inspection report and stated that earlier on 17.6.2003, this container was opened in his absence and on 18.6.2003 it was found that the container was having one local lock and the other door was tied with two wires. The container was again open on 19.6.2003 and it was found that out of 390 boxes only 181 boxes were available and assessed the net loss of Rs.10,54,311/-.

10. The basic facts narrated by the complainant in the complaint were admitted in the reply filed by the OPs in the learned District Forum but at the same time the OPs raised technical objections that

i)  The complainant had failed to make transporter M/s M.S.Roadlines as a party in the present case.

ii) The consignment in question had been dispatched on 9.6.2003 from Chandigarh and did not reach Delhi even till 12.6.2003 whereas the same should have reached the ICD Delhi by 10.6.2003. 

11. As per the contention of the OPs that mere assessment by surveyor did not mean that losses were recoverable from insurer (insurance company). It depends upon the terms and conditions of the insurance policy and also on the act and conduct of the insured. Here in the present case, there are many discrepancies on the part of the insured, which the surveyor has specifically mentioned in his report. It is the insured who failed to produce any weighment report or evidence at the time of loading/dispatch and in G.R., there is no reference of weight of assignment as well as the complainant did not submit any weighment of empty container in which the consignment was loaded. In this situation, it was not possible to ascertain what was the weight of the goods at the time of the dispatch. Further as per the report of Sh.M.Kumar the Investigator that the seal and lock might be intact at the time of handing over of the truck and the container to the transporter-cum-truck owner by the police but it is a fact that the vehicle remained in the possession of the truck owner for 18-20 hours in between exit from police and lodging the vehicle inside the ICD/Custom custody.  During this period the misappropriation of goods had taken place and the claim was not payable to the complainant as per terms & conditions of the insurance policy and as per the report of the surveyor that the goods were manipulated by the insured and its transporter and the loss/damages prime facie attributed due to the willful negligence of the complainant and same falls within the exclusion clause No. 4.1 of the policy. 

12. From the outset of this case, it appears that there are many discrepancies on the part of the complainant & transporter. Considering this, even we are of the opinion that there is every possibility of misappropriation of goods between the period when the truck was got released from the police custody and lodging the vehicle inside the ICD/custom custody. Not only this, as the driver and conductor of the transporter, who left the truck abandoned on the road and till today the police is unable either to recover the lost goods or to trace out the absconding driver and conductor of the said truck. As all this happened during the transportation of the consignment, when the goods were in the custody of the carrier i.e. M.S.Roadlines.  As per the Carrier Act, it is the duty of the carrier to take due care as he would have taken of his own goods and he would have been liable if any loss or damage caused to the goods on account of his own negligence or criminal act or that of his agents and servants. As in the present case the driver & conductor of the said truck who left the truck in the abandoned state on the road were negligent and deficient in providing services, hence, the transporter i.e. M/s M.S.Roadlines is responsible for this act and conduct of its driver and conductor and is liable to pay the losses incurred by the complainant due to the negligent and irresponsible behaviour of the driver. Moreover in the absence of any corroborated evidence we cannot conclude that there is any deficiency in service as well as unfair trade practice on the part of OPs, if there is any deficiency in service and unfair trade practice that is on the part of transporter and the OPs are not at all liable to indemnify the complainant for the losses occurred due to the act of the transporter. Since the complainant had not arrayed the transporter i.e. M.S.Roadlines as a necessary party along with the insurance company, so in this situation no relief can be granted against the transporter as it was not a party. This appeal is also liable to be dismissed on the ground that the complainant has failed to establish that there is any deficiency in service and unfair trade practice on the part of OPs.

13. With  the foregoing discussion, we have come to the conclusion that the appeal is liable to be dismissed on the ground of misjoinder/non-joinder of the parties as well as on the ground that the complainant has failed to establish that there is any deficiency in service and unfair trade practice on the part of OPs. Therefore, we dismiss the appeal as devoid of merit without any order as to costs.

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

Pronounced.                                

22^nd February, 2011.