GLAXO INDIA LTD Vs. ECONOMIC TRANSPORT ORGANISATION

JUDGEMENT

(1.) The genesis and sequence of the claim made by the complainants is this. M/s. Glaxo India Limited, Complainant No. 1, which transacts the business of medicines, pharmaceuticals products, chemicals and raw products, etc. hired the services of Economic Transport Organisation, the Opposite Party and entrusted to them a consignment of 554 cartons of various medicines for carriage consideration and safe delivery from their godown at Nasik vide truck No. BR 31/2273, LR No. 683-5882 dated 28.9.1999. The said consignment was worth Rs. 43,32,078. It was a stock transfer to their C & F agencies, M/s. Candida Enterprise, Guwahati. The complainant despatched the consignment through three transfer proforma invoices and stock transfer document Nos. 20001, 20002, 20003 dated 28.9.1999. L/R was issued by the opposite party who was complainant's regular transporter. The truck left Nasik on 28.9.1999 and was expected to reach Guwahati within 15-20 days, However, the same did not reach even after 30 days. Matter was brought to the notice of the opposite party on 29.10.1999. The opposite party's Branch Manager at Nasik had already lodged a criminal complaint on 26.10.1999 with Satpure Police Station, Nasik against the driver of the vehicle form is appropriation of the above said consignment. The opposite party also circulated a letter dated 3.11.1999 to all its branches giving the particulars of the L/R, vehicle number, owner and the driver of the vehicle for inquiring with check-Nakas enroute to Guwahati and the concerned agencies. It transpired that the truck number was false and its all the documents were manipulated by the truck driver who was working in cahoots with the owner. Chassis number and the Engine number of the vehicle were fake.

(2.) Complainant No. 1 had obtained insurance from M/s. New India Assurance Company Limited, Complainant No. 2. After receiving the information about loss, the Insurance Company deputed M/s. J Basheer and Associates Surveyors Private Limited, Mumbai, who submitted their report. Complainant No. 2 settled the claim of the first complainant and paid an amount of Rs. 43,32,078. The second complainant also incurred the expenses of Rs. 68,700 in the investigation of this case. Consequently, the complainants have claimed a total sum of Rs. 44,00,778 with interest at the rate of 18% p.a. from the date of filing of this case till realization with costs. It is contended that negligence, imperfection and deficiency in services on the part of the opposite party is apparent on the record. Since the second complainant has subrogated to the rights and remedies of the complainant No. 1 due of the said non-delivery loss of the consignment therefore the complainant No. 2 is entitled to have the said amount.

(3.) The defences set up by the opposite party are listed as follows. It is alleged that the New India Assurance Company Limited is not a consumer, in view of the Supreme Court authority in Oberai Forwarding Agency v. New India Assurance Co. Ltd., 2000 2 SCC 407 and Textiles & Yarn (P) Ltd. v. Indian National Steamship Co. Ltd., 1964 AIR(Cal) 362 and Marine Containers Services, South Private Limited v. Go Go Garments, 1998 3 SCC 247.