The carrier's liability under the Carriers Act, 1865 was established, and the complainant's suppression of claim amount did not affect the carrier's liability.

ORDER

K.R. Udayabhanu, President - The complainant, a Private Limited Company has alleged deficiency in service on the part of the opposite parties, a common carrier. It is alleged that the complainant on 23.10.2001 entrusted a consignment of its products for transportation from Ernakulam to Ambala Contonment and a sum of Rs. 9,000 was paid towards freight charges. The goods were lost in transit on 31.10.2001. Only goods worth Rs. 22,328 could be salvaged from the entire consignment. The declared value of the consignment was Rs. 6,55,704.50. The remaining goods worth Rs. 6,33,736 was lost in transit due to the negligence and want of care on the part of the opposite party. The opposite party has issued an open delivery certificate dated 22.12.2001 acknowledging the loss of goods worth Rs. 6,33,376 in transit. Claim was lodged on 24.12.2001 claiming a sum of Rs. 6,33,376 being the value of goods lost in transit. The opposite party is not settling the claim so far. Hence a sum of Rs. 6,43,376 that included freight charges of Rs. 9,000 with interest at 18% per annum and compensation of Rs. 25,000 is claimed.

2. The opposite party has filed version contending that the complaint is bad on the ground of suppression of material facts. It is pointed out that the claim of the complainant has been satisfied by the National Insurance Company the insurer of the complainant by paying an amount of Rs. 6,30,000 vide cheque dated 26.3.2002. It is also stated that the company has paid the amount after getting a letter of subrogation and Power of Attorney from the complainant. It is further contended that the goods were damaged due to fire accident. The insurer of the vehicle should be impleaded. It is further alleged that the consignment consisted of highly inflammable materials and that the same was the reason for the accident. The open delivery certificate was issued at the instance of the claimant to claim from their underwriters. The opposite party has denied any liability.

3. The evidence adduced consisted of the testimony of PW1, DW1, A1 to A14 and B1 to B5.

4. PW1, one of the Directors of the complainant/company has admitted in the cross-examination that a sum of Rs. 6,30,000 was paid by the Insurance Company. It is also mentioned that the claim submitted was for Rs. 6,30,000. The complainant has also produced the open delivery certificate i.e., Ext.A10 wherein the claim value assessed is mentioned as Rs. 6,33,376. Ext.A11 is the copy of the statutory notice claiming Rs. 6,33,376. The goods are laboratory chemicals and clinical reagents. It is admitted by PW1 that the complainant has given a letter of subrogation to the Insurance Company. DW1 the Manager of the opposite party has also filed proof affidavit as per the averments in the version and was cross-examined. The accident has taken place at Pune in the State of Maharashtra. He has admitted that it is not mentioned in the open delivery certificate that the damage was sustained on account of the inherent nature of the consignment. It is admitted that Rs. 9,000 has been received towards transportation charges.

5. The opposite party has produced copy of the survey report wherein the salvage value is mentioned as Rs. 22,328. The cause of loss mentioned is that due to heavy jerks while enroute, the bottles and the other cargo impacted with each other, as well as with the truck body and resulted into breakage and leakage of contents, which reacted with each other and caused the fire. It is also mentioned that since the packing cases of the powdered goods were of craft paper the fire spread fast.

6. Although the Counsel for the complainant has contended that at the time the insurer was not entitled to file suit on the basis of letter of subrogation and hence the complainant himself filed the complaint and that was the reason why the receipt of amounts from the Insurance Company was not mentioned in the complaint, the same cannot be accepted as such. The complainant ought to have been straight so