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2017 Supreme(J&K) 983
JAMMU AND KASHMIR STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Justice Sunil Hali (Retd.), President, D.K. Kapoor, Member (Judicial)
United India Insurance Co. Ltd. – Appellant
Versus
Bharat Parivahan – Respondent
Complaint No. 3586 of 2014
Decided On : 22-12-2017
For the Appellant :Mr. Vishnu Gupta, Advocate
For the Respondent:Mr. Suneel Malhotra, Advocate
The main legal point established in the judgment is the application of the doctrine of subrogation in the context of a complaint under the Consumer Protection Act, 1987, and the shifting of the burden of proof to carriers under common law principles.
Headnote:
Subrogation - Consumer Protection - Consumer Protection Act, 1987, Sections 9, 14(1)(d), Carriers Act, 1865, Common Law - The judgment discusses the application of the doctrine of subrogation in the context of a complaint filed under the Consumer Protection Act, 1987. It also addresses the jurisdiction of the Consumer Forum, the liability of carriers, and the burden of proof under common law principles.
Fact of the Case:
The complainant, a dry fruit and walnut kernels seller, dispatched consignments to different places in India through the opposite party for safe delivery. However, a significant portion of the consignments was not delivered to the consignees, resulting in a loss of Rs. 4,41,936. The insurer reimbursed the amount to the complainant and was subrogated to seek recovery from the carrier.
Finding of the Court:
The court found that the Consumer Forum had territorial jurisdiction to entertain the complaint and that the doctrine of subrogation allowed the insurer to recover the reimbursed amount from the carrier. It also held that the burden of proof shifted to the carriers under common law principles.
Issues: The issues involved the jurisdiction of the Consumer Forum, the applicability of the Carriers Act, the doctrine of subrogation, and the liability of carriers for non-delivery of goods.
Ratio Decidendi: The court held that the Consumer Forum had territorial jurisdiction, the insurer could seek recovery from the carrier through subrogation, and the burden of proof shifted to the carriers under common law principles.
Final Decision: The court directed the opposite parties to reimburse an amount of Rs. 4,41,900 along with interest at 6% from the date of filing of the complaint.
Sunil Hali (Retd.), President
The complainant No. 2 is conducting the business of sale and export of dry fruits including walnut kernels at Bari Brahamina, Jammu. As a regular feature of his business, he has to dispatch dry fruit and walnut kernels of different qualities loaded in cartons to different places all over India by rail or road.
2. A consignment of walnut kernels weighing 660 Kgs packed in 44 cartons was sent by the complainant No.2 to M/s New Ramesh Kiryana Store, Sindhi Commercial Market, Kallupur, Ahmedabad through opposite party No. 1 on 09.01.2014 and the same was handed over to opposite party No. 1 for safe delivery to the said consignee. The value of the said consignment as per the Invoice No. SIS/2013-626 dated 08.01.2014 was Rs. 5,20,617.18. On the same day another consignment of walnut kernels weighing 150 Kgs packed in 10 cartons was dispatched to M/s Tejpal Suppliers, 4 Krishan Kanaiya Complex, Madhopura, Ahmedabad through opposite party No. 1 vide Invoice No. SIS/2013-627 dated 08.01.2014. The net value of this consignment as per the invoice was Rs. 1,23,519.45
3. Both these consignments were handed over to opposite party No. 1 for transportation, who in lieu of receipt of consignment issued G.R.Nos.9448 and 9449 both dated 09.01.2014 to the complainant No.2. The consignments were to be transported in their truck for their safe delivery to the consignees.
4. Both these consignments were insured with the complainant No.1 under Marine Cargo Open Policy No.111800/21/13/02/00000024 for the period 12.09.2013 to 11.09.2014 for Rs. 2.00 crores from Jammu to anywhere in India by rail/road limit per transit and per location being Rs. 70.00 lacs covering all risks to the consignments.
5. The consignment of 18 cartons was delivered to M/s New Ramesh Kiryana Store, Sindhi Commercial Market, Kallupur, Ahmadabad instead of 44 cartons and similarly 02 cartons were delivered to M/s Tejpal Suppliers, 4 Krishan Kanaiya Complex, Madhopura, Ahmedabad instead of 10 cartons, handed over to the opposite party No. 1 for safe delivery. Thus 26 cartons of walnut kernels out of 44 and 08 cartons out of 10 were not delivered to the consignees. The consignees in their communications intimated the complainant No.2 regarding non delivery of aforementioned quantity of cartons, as a consequence of which, complainant No.2, informed the complainant No.1-insurer regarding non delivery of the aforementioned cartons.
6. The Insurance Company deputed one Sh. Agya Pal Sangra, IRDA licensed Surveyor to assess the loss, who vide his report dated 04.03.2014 assessed the net loss at Rs. 4,41,936/-. This loss was caused to the complainant No.2 due to the negligence and carelessness of the opposite party No.1 (carrier) and its employees. The opposite parties were informed by the complainant No.2 about the said loss, as a result of which, a complaint was lodged with them by registered post letter dated 06.02.2014 for reimbursement of the loss.
7. The opposite party No.1 through its letter dated 29.01.2014 informed the complainant No.2 that there was a short delivery and non-delivery of 34 cartons on account of being stolen in transit. Despite having admitted the non-deliver of afore mentioned cartons, the loss was not indemnified by opposite parties No. 1 and 2. The insurer with whom the claim was lodged, reimbursed an amount of Rs. 4,41,900/- vide cheque dated 24.03.2014 to the insured.
8. The complainant No.2 executed a letter of subrogation-cum-power of attorney in favour of complainant No. 1 whereby it subrogated and transferred all its rights for recovery against the opposite party No. 1 (carrier) and authorized it to seek recover of Rs. 4,41,900/- from the opposite party No. 1 (carrier). This was done because the complainant No.2 has received the amount from the complainant No.1. This letter of subrogation-cum-power of attorney authorizes the complainant No. 1 to initiate recovery proceedings for and on their behalf, as such, for effecting
