ORDER

Mr. Justice M.K. Basu, President—This appeal is directed against the judgment and order dated 29.12.1998 passed by the Calcutta Unit-II District Consumer Forum in Case No. C.D. F-I/2752/1995. The complaint was filed by M/s. Madhya Bharat Papers Ltd. and others (the present appellants) on the following allegations. The complainant-1 was a manufacturer of paper having its mill at Champa, District Bilaspur, M.P. and they used to carry on their business from their Calcutta Office at Nicco House, Calcutta. The complainant-2 was the Oriental Insurance Company Ltd. Respondent-1 M/s. East India Transport Agency, was a limited liability company carrying on business at their registered office at 20-B, Abdul Hamid Street, Calcutta as common carrier carrying on road transport business for hire from place-to-place. The proforma respondent-2 was M/s. Alok Paper Udyog, Patna. The complainant-1 consigned goods to the said proforma respondent-2 through respondent-1. The complainant-1 was the consignor. They consigned two consignments of 159 and 39 bundles of paper respectively on “Consignment Sale” basis on 11th November, 1993 for Rs. 2,00,028/- and Rs. 45,508/- respectively from Champa to Patna for delivery of the goods in favour of the respondent-2, M/s. Alok Paper Udyog, Kadam Kuan, Patna. The goods were properly packed and in sound condition. The consignor issued consignment notes bearing No. 918448 and 918449 both dated 11th November, 1998. But the respondent-1 failed to perform their contractual obligation and issued a non-delivery certificate dated 22nd January, 1994 admitting that they had failed to effect delivery of the aforesaid consignments in favour of the proforma respondent-2. As a result of such non-delivery of the consignment the complainant-1 suffered a loss to the extent of Rs. 2,70,000/-. Such non-delivery occurring due to negligence, misconduct and carelessness of the respondent-1 M/s. East India Transport Agency and their servants while the goods were under their control and custody, the complainant-1 served notices upon them claiming the amount in terms of Section 10 of the Carriers Act, 1865. But the respondent-1 failed to make any payment. The consignments had been insured with the complainant-2, the Oriental Insurance Company Ltd. under Marine Open Policy. Accordingly, the respondent-1 having failed to compensate the complainant-1’s loss for such non-delivery of the consignments complainant-1 prefered the claim of insurance for Rs. 2,70,090/- before the complainant-2 who after being satisfied with the genuineness of the claim paid that sum to the complainant-1 in full settlement of their claim. In consideration of this the complainant-1 executed a letter of subrogation in favour of the complainant-2 and subrogated to them all the rights, title, interest and remedies arising out of the non-delivery of the aforesaid consignment of 159 and 39 bundles of paper despatched under the aforementioned consignment note dated 11th November, 1993.

2. Since the respondent-1 did not make any payment in response to the notice issued by the complainant-1 the latter along with the Oriental Insurance Company, in whose favour the rights have been subrogated have filed this complaint before the District Consumer Forum having jurisdiction to try the case implicating the consignee, M/s. Alok Paper Udyog as pro respondent-2, it having not agreed to join them as a complainant.

3. The O.P.-1 contests the complaint by filing a written objection challenging the material allegations of the complaint and contending inter alia that the case was not legally maintainable since the complainants were not consumers and there was no privity of contract between the complainant-2 and the respondent-1 and further as no notice under Section 10 of the Carriers Act has been served upon it. It has been further contended that the dispute required adjudication by a competent Civil Court, if at all. According to the respondent, as a matter of fact a Civil Suit