The opponent is liable to compensate for the loss suffered by the complainants due to the non-delivery of the consignment.

Mr. Justice R.C. Mankad, President— Complainant No.1, a partnership firm carrying on business at Upleta, consigned 9805 kgs. of loose rapeseed oil worth Rs. 3,30,000/- from Upleta to Bombay through the opponent. Complainant No.l was both consignor and consignee. The opponent charged freight of Rs. 5,200/- for transporting the oil from Upleta to Bombay. The oil was loaded in Tanker bearing Registration No. GRP 6416. The oil was insured with complainant No.2 insurance company for Rs. 3,30,000/- under Transit/ Marine Policy No. 300400/400/4400135 dated August 9, 1991.

2. The opponent failed to deliver the entire consignment of 9805 kgs. of oil. At the time of delivery, there was shortage of 4320 kgs. of oil. On enquiry, the opponent informed complainant No.1 under certificate dated November 11,1991 to the effect that the tanker in which oil was transported met with accident near Kosamba Railway Station, 30 kms. from Ankleshwar and as a result of the accident, 4320 kgs. of oil leaked out of the tanker without any chance of recovery. By the said certificate, opponent admitted non-delivery of 4320 kgs. of oil. It further appears that complainant No.2 insurance company had appointed surveyor Hetav Panwala to make enquiry regarding accident and assess the loss due to the accident. The surveyor assessed the loss at 4320 kgs. Complainant No.1 by its letter dated October 31,1991 called upon the opponent to pay the value of the goods viz. the oil which was lost. There was, however, no response from the opponent.

3. Complainant No.1 made claim regarding loss to complainant No. 2 insurance company. Complainant No. 2 insurance company paid Rs. 1,49,370/- by cheque on November 27,1991 to complainant No. 1 for the loss and obtained from it letter of subrogation and special power of attorney. It is under these circumstances that both the complainants have filed this complaint for recovery of total amount of Rs. 2,26,245/- which includes the aforesaid amount of Rs. 1,49,370/-.

4. The opponent has not appeared, though duly served. Hearing of this complaint has, therefore, proceeded ex-parte against it.

5. The first question which arises for our consideration is whether this complaint is maintainable in view of the fact that complainant No. 1 has already received the amount of Rs. 1,49,070/- from complainant No. 2. This quetion is concluded by our decision in Complaint No. 503/92 decided today. In view of our said decision, it is held that this complaint is maintainable.

6. The next question which is required to be considered is whether the opponent is liable to pay compensation for the loss suffered by the complainants. It is not disputed that oil to the extent of 4320 kgs. was not delivered at the destination by the opponent. There is no satisfactory explanation for non-delivery. There is, therefore, no reason to disbelieve the allegations made against the opponent. There seems to be no reason or justification for the opponent not to indemnify the complainants for the opponent not to indemnify the complainants for the loss suffered by them on account of negligence of the driver of the opponent in causing the accident. In these facts and circumstances of this case it must be held that there was deficiency of service on the part of the opponent and it is liable to make good the loss suffered by the complainants as a result of the accident. The value of oil which was not delivered is proved to be Rs 1,49,370/-, the amount which complainant No. 2 paid to complainants are entitled to recover this amount together with 18% interest from the opponent.

7. In the result, we direct the opponent to pay to complainant No.2, insurance company a sum of Rs. 149,370/together with interest @ 18% from November 27,1991 till the payment is made, together with cost which is quantified at Rs. 2,000/each within 4 weeks from the date of the receipt of this order. We would have passed the order for payment of the aforesaid amount of 1,49,370/jointly to both the complainan