PRAGATHI BULK CARRIER Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) Both the questions that arise in this appeal preferred by the opposite party in O. P. No.127/ 1997 questioning the order of the Cuddapah District Forum dated 9.12.1997 are covered by the decision of the National Commission in Kishan Roadways V/s. National Insurance Co. Ltd. and Anr., 1996 3 CPJ 51.

(2.) The first question is whether the Insurance Company which paid the compensation to the insured under a subsisting contract of insurance executed between them, could rely upon the subrogation letter given in its favour by the insured and claim recovery from the transporter the compensation for the loss suffered by the insured in respect of goods damaged or lost while being transported by the transporter. This is not a case where the complaint was filed by the Insurance Company alone; it was filed jointly by the insurer and by the insured i. e. , New Jayalakshmi Oil Mill which entrusted sun flower oil for transport to the appellant, Pragathi Bulk Carrier. The National Commission held in Kishan Roadways' case "that the Insurance Company was also a consumer if it has joined the consignor while suing the carrier". The National Commission referred to its earlier decision in Transport Corporation of India V/s. The Davangera Cotton Mills Ltd.,1998 2 CPJ 16, holding that the transport company was liable to indemnify either of the two for the loss of goods.

(3.) The 2nd question is whether the appellant who was allegedly only a transport agent and was not the owner of the vehicle which transported the sun flower oil, could be made liable for the loss as a Carrier. But Ex. A-5 marked before the District Forum shows that the appellant had given the consignment note containing the tank owner's name as well as the name and signature of its driver. The consignment note also shows that the advance transportation charges were collected by the appellant and that the balance had to be paid in cash at Hyderabad. Conditions of transport were also mentioned in the consignment note. In Ex. A-7 Way Bill also the name of Pragathi Bulk Carrier and L. R. No.897 were shown. A similar argument advanced before the National Commission in Kishan Roadways, case was rejected by the National Commission as follows : "the consignment note is on the printed consignment note of Kishan Roadways (Ahmedabad) and is signed on behalf of the Kishan Roadways. It is not disclosed in the consignment note as to who is the principal of M/s. Kishan Roadways. There is a consideration of Rs.1,500/- for carriage of the goods to be paid cash at destination. The consignment note however, mentions that M/s. Kishan Roadways is only the broker issuing a transit pass in the name of the owner of the tanker but that is not enough to establish that M/s. Kishan Roadways had entered into a contract for carriage of oil as broker or agent of some other person. The very name Kishan Roadways suggests that they were holding out as carriers. The State Commission was thus fully justified in coming to the conclusion that the appellant was a common carrier and is liable as such. Reliance on the case of A. S. PAI, III (1995) CPJ 44 (NC)=1986-1996 Consumer 2618 (NS) is misconceived as that was decided on its own peculiar facts. Consumer means any person who hires or avails any service for consideration are two essential ingredients of the definition contained in Sec.2 (1) (d) (ii) of the Act. In that case there was no material on the record relevant to the question of hiring of services for consideration as the appellant in that case had not charged from the complainant any commission or service charges and the appellant there did not come into picture at all after introduction of truck owner. It is on these facts that it was held that complainant therefore was not a consumer".