HINDUSTAN TRANSPORT SERVICE Vs. NATIONAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) M/s. Dev Raj Raj Kumar hereinaiter referred to as complainant No. 1 sent a consignment of goods. This was gone by utilising the services of a transport vehicle bearing registration No; JKO-559. These goods were covered by a marine insurance policy. The value of the goods which was subject matter of the consignment is said to be Rs. 1,27,295/-. The fact that these goods were despatched through this truck was sought to be proved by placing relience on a challan prepared in this regard. It was the further case of complainant No.1 that it was the appellant Hindustan Transport service yard No.5, Transport Nagar Jamu which Allotted the truck in question for transporting the goods. One Vinod Kumar is said to be driver of the vehicle.

(2.) As indicated above, the goods were got insured for a sum of Rs. 1,000,000/- (Ten Lakks). This insurance was valid from 26-5-1995 to 26-5-1996. It is the further case of complainant No.1 that the truck met with an accident. It fell 150 feet below the hill slope. This resulted in damage to the vehicle. This also caused loss to the goods. A Surveyor is said to have been appointed by the National Insurance Company (hereinafter referred to as the Insurance Company). This loss was asssessed of is 89,952,00. This amount was paid by the Insurance Company to the complainant No.1. This was done on 20-9-1996. After taking aforementioned steps and after making the payment, a complaint was filed before the State Consumer Commission constituted under the J and K Consumer Protection Act of 1987. This was filed jointly by the complantant No.1 and the Insurnace Company. Plea taken was that the Insurance Company had stepped into the shoes of complainant No.1 and could file a joint complaint. Requisite averments are made in paragraphs 10 and 11 of the complaint. For facility of reference these paragraphs are being reproduced below:"10. That when the transport or either does not deliver the consignment or deliver its part. It is the deficiency of the service on the part of the carrier and the consigner as well as the Insurance Co. after having settled the claim, can maintain a joint complaint against the carrier for seeking lose of the goods and the freight, which herein is Rs. 89,952/- However, it is an arrangement inter se between the complainants that the complainant No.2 shall claim an amount of damages from the respondents, hence this complaint.11 That the complainant No.2 by virtue of the present complaint, claims an amount of Rs. 89,952/ along with interest at the rate of 24% per annum w.e.f 20-9-1998 the date when the claim was paid by the complainant No.2 to the complainant No.1 till the time the payment is made by the respondents to the complainant No.2 jointly or severally and further claims an amount of Rs. 6000/- on account of litigation expenses and Rs.1200/- as counsel fee for serving of legal notice dated 9-4-1997. Photocopy of the duty slip issued by the respondent No.1 and deputed respondent No.2 is marked as annexure C-1, FIR is marked as annexure C-2, Survey report is marked as Annexure C-3 Notice dated (sic) is marked as Annexure C-4, Letter of Sabrogation and Special power of Attorney are marked as unnexures C-5 and C-6 respectively and legal notice dated 9-4-1997 is marked as Annexure C-7 along with complaint as a matter of proof and reliance.

(3.) The State Commission proceeded with the trial Present appellant who figured as respondent No.2 therein was said to have been served. It, however, did not put his appearance. Ex parte proceedings were taken. An application was filed later on in which a prayer was made that ex parte proceedings against it be set aside. This was done before the judgment was pronounced by the Commission. There State Commission did not thought fit to set aside the ex parte proceedings but allowed the appellant to join the proceedings with effect from the State of appearance. Thereafter, the State Commission recorded finding to the effect that the present appellant was bound to indemnify the Insurance Company. It was directed to pay Rs. 89,952/ to the Insurance Company. Interest was allowed at the rate of 12%. This was payable from 20-9-1996. The aforementioned appellant has come to this Court. He challenges the initial order by which the prayer for setting aside the ex parte proccedings was declined. It also challenges the order which was finally passed by the Commission.