RELIANCE INDUSTRIES LIMITED Vs. ASSOCIATED BULK MOVERS

JUDGEMENT

(1.) THE few facts are that the first complainant M/s. Reliance Industries Ltd. had entrusted the consignment of 13. 230 M. T. of Linear Alkyl Benzene (LAB) for carriage, consideration and safe delivery Ex. Patalganga to Chhindwara (M. P. ). The said consignment was loaded as per Invoice No. L 0002440 dated 30-9-94 in Lorry Tanker No. MCY 508. The said consignment was booked under Lorry Receipt No. 2313 dated 30-9-94. The said consignment was lost during transit and on 29-10-94, the opposite party i. e. carrier, admitted the non-delivery of the entire consignment. The certificate to that effect was issued on 29-10-94. The consignment was valued at Rs. 6,06,688. 60 ps. Vidarbha Engineers of Amravati were appointed as surveyors for assessment of loss and according to their Marine Survey Report dated 11-10-94, it was certified that the entire consignment was lost and had become useless. At the relevant time, this consignment was covered under the insurance by Complainant No. 2 under Insurance Policy No. 112300/20/95/0007. The first complainant after assessment of loss, executed Letter of Subrogation and Special Power of Attorney dated 26-4-96 as against the payment of Rs. 6,43,434/- in favour of the Insurance Co. The complainants have contended that the carrier is responsible for deficiency in service under the provisions of Carriers Act, 1865, and accordingly the claim is preferred as indicated above.

(2.) THE opposite party contested this claim on various grounds. It is admitted that the consignment was taken in the Lorry Tanker No. MCY 508 driven by Shri Bakshi Singh Sewar Singh under the valid driving licence. The said lorry met with an accident on 4-10-94 near village Karanja Chadge, Amravati, Nagpur Road due to the break down of R/s rear axel. The vehicle, therefore, could not be controlled and it over-turned upside down, and the contents of products drained out from the tank through the lids as well as the cracked portion of the metal body of the tank. The opposite party had no control whatsoever over this accident. It is also stated that the claim by the Insurance Co. on the basis of subrogation is not maintainable and that the complainant has failed to prove the negligence on the part of the carriers.

(3.) THE learned Advocate for the opposite party has drawn our attention to the case of Supreme Court reported in 1997 (6) Supreme Court Cases 383, in the case of (New India Assurance Co. Ltd. v. G. N. Sainani ). It is stated that under subrogation, the Insurance Co. cannot maintain the claim against the carrier. However, on perusal of the same, it can be stated that the same is not applicable to the facts of the present case. In the first instance, both the Insurance Co. and the consignor M/s. Reliance Industries Ltd. have jointly filed the complaint. On the date of the accident the insured has insurable interest of the goods and hence, the ratio of the Supreme Court cannot be applied, because in the case of G. N. Sainani, the policy had lapsed on account of the refusal of the Insurance Co. to extend the period of coverage arising on account of the goods being delivered at a wrong port.