KISHAN ROADWAYS Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) This First Appeal is directed against the Order dated 30th September, 1994 of the Gujarat State Commission at Ahmedabad allowing the complaint and directing the opposite party (appellant herein) to pay to the National Insurance Company Ltd. a sum of Rs. 1,09,566/- together with interest at the rate of 18% per annum from May 1,1991 till payment is made together with costs of Rs. 2,000/-.

(2.) The complaint was filed by M/s. National Insurance Company Ltd. as complainant No. 1 and M/s. Kishan Roadways, opposite party and appellant herein. It was alleged in the complaint that Madhusudan Industries Ltd. booked consignment of 9900 kgs. of Rice Bran Oil Raw Grade under consignment Note No. 215 with Kishan Roadways. It is the common case of the parties that the said consignment was despatched in Tanker No. GRP 6296 which turned turtle at Ghodasar Cross Road on2.1.1991 and as a result thereof, there was a leakage of oil which was considered as 9850 kgs. valued at Rs. 1,43,550/-. The said consignment was insured with complainant No. 1 who settled the claim made by the complainant No. 2 and paid Rs. 1,09,566/- to complainant No. 2. The complainant No. 2 executed a letter of subrogation and special power of attorney in favour of complainant No. 1. As the claim was not settled by Kishan Roadways, the complaint was filed for recovery of Rs. 1,09,566/- together with interest at the rate of 18% per annum besides costs. The main defence of Kishan Roadways before the State Commission was that complainant No. 2 has no right or authority to transfer, assign or subrogate its right to claim damages and therefore, subrogation in favour of complainant No. 1 is not valid. It was pleaded that M/s. Kishan Roadways is merely a broker and not a carrier and, therefore, it is not liable as a carrier.

(3.) The State Commission came to the conclusion that complainant No. 1 has stepped into the shoes of complainant No. 2 on the payment of loss suffered by complainant No. 2 and thus entitled to claim the same rights as complainant No. 2. On the question whether the opposite party is merely a broker, the State Commission on the appreciation of the evidence expressed that there is no doubt that the opposite party had booked the consignment of complainant No. 2 which was to be delivered at Rajkot, that they had issued consignment note in which registration number of the oil tanker is also mentioned, that there is absolutely no evidence on record to show that the tanker did not belong to the opposite party, that the fact remains that the opposite party had booked the aforesaid consignment of oil and transported it in the oil tanker for delivery at Rajkot and that considering all the facts and circumstances of the case the opposite party is accountable as a carrier. The State Commission allowed the complaint and directed the opposite party to pay to complainant No. 1 a sum of Rs. 1,09,566/- together with interest at the rate of 18% from May 1,1991 till payment besides costs of Rs. 2,000/-.