The liability of carriers for damages arises during transportation unless they prove lack of negligence; rights under a subrogation agreement permit maintenance of a complaint by an insurer.

BEFORE HON'BLE MR. BHARATKUMAR PANDYA, PRESIDING MEMBER HON'BLE MRS. JUSTICE SAROJ YADAV, MEMBER For The Complainant : Mr. Shivam Singh, Advocate Mr. Ishwar Singh, Advocate For The Opposite Party : Mr. Ashok Mathur, Advocate for OP-1 & 2 Mr. Vartul Vishnoi, Advocate for OP-4 OP-3 and 4 Ex parte vide order dated 24.05.2024

JUDGEMENT

PER HON'BLE MR. BHARATKUMAR PA ND YA. PRESIDING MEMBER

1.jihgfedHcebaaZrdY XMWrV. USThSiRvQaPmO NSMinLgKhJ,IH AGdFvEoDcCaBtAe for the Complainants and Mr. Ashok Mathur, Advocate, for OP-1 & 2 and Mr. Vartul Vishnoi, Advocate for OP-4. OP-3 is Ex parte vide order dated 24.05.2024. In IA No. 14986 of 2024, filed by Opposite Party No. 4 - M/s Arihant Trailer Services, the applicant sought recall of order dated 13.11.2014 the ex-parte proceedings by contending that it could not appear earlier as it had no knowledge of the pendency of the consumer complaint and the proceedings before this Commission. It was pleaded that the non-appearance was not intentional or deliberate, and that Opposite Party No. 4 came to know about the case only at a later stage, whereafter the present application was filed seeking an opportunity to contest the matter on merits. This Commission, by order dated 21.10.2024, considered the said explanation and examined the record of service. The Commission noted that Opposite Party No. 4 had already been duly served earlier and was proceeded ex-parte on 13.11.2014, and that the explanation offered in the application did not disclose any sufficient or convincing cause for non-appearance over such a prolonged period. The Commission further observed that the proceedings had substantially progressed and that merely stating lack of knowledge, without substantiating circumstances preventing appearance, was insufficient to recall the ex-parte order. Accordingly, finding no merit in the explanation furnished, IA No. 14986 of 2024 was dismissed, and the ex-parte proceedings against Opposite Party No. 4 were directed to continue as such.

2.edcbaZTYhXisW VCUoTmSRmQiPsOsiNoMn LKhJaIdH GeFaErDliCeBr,A by order dated 11.08.2016, dismissed the present consumer complaint at the threshold on the ground of maintainability, holding that the complainants did not fall within the definition of “consumer” under the Consumer Protection Act, 1986 . Aggrieved by the said order, the complainants preferred an appeal before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court, by order dated 09.08.2023, set aside the order passed by this Commission, held that the complaint is maintainable, and restored Consumer Complaint No. 397 of 2013 to the file of this Comrnission for adjudication on merits, with all issues kept open. The order dated

09.08.2023 passed by the Hon’ble Supreme Court is reproduced hereinbelow:QPONMLKJIHGFEDCBA "ORDER In the instant case the appellant is before this Court assailing the judgment dated

11.08.2016 passed by the National Consumer Disputes Redressal Commission, New Delhi (For short 'NCDRC'j A perusal of the said judgment would indicate that it is held therein that a complaint in a matter of the present nature would not be maintainable since the appellant cannot be held to be a consumer under Section 2 (1 )(d) of the Act.

This issue is no more Consumer Protection res-integra in view of the decision of this Court in the case of National Insurance Company Ltd. Versus Harsolia Motors & Ors., reported in 2023 SCC Online SC 409. In that view, without adverting to any other aspect of the matter and on holding that the complaint filed by the appellant would be maintainable, we deem it appropriate to set aside the order dated 11.08.2016 passed by the NCDRC Consumer Case No. 397 of 2013 and restore the to the NCDRC for consideration of the matter on its merits and in accordance with law.

Since the parties are represented by their learned they shall appear before the National Commission counsel, on 15.09.2023 as the first date for appearance. The National Commission shall thereupon regulate th