State Consumer Disputes Redressal Commission
Heinz India Pvt. Ltd. vs The National Insurance Co. Ltd. on 11 April, 2012
CC/07/29
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/07/29
1. Heinz India Pvt. Ltd.
Reg. Off. at D, Shivsagar, 7th floor, Dr. Annie Besant Road,
Worli,
Mumbai - 400018.
2. The National Insurance Co. Ltd.
Mumbai Divisional Office No. 16 at Commercial Union
House, 9, Wallace Street,
Mumbai - 400 001.
...........Complainant(s)
Versus
1. Best Roadways Ltd.
Office at 103/104, Prestige Chambers, 127-B, Kalyan Street,
Mumbai - 400 009.
............Opp.Party(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
Complainant & their counsel absent.
......for the Complainant
Adv.Kalyani Parmar
......for the Opp. Party
ORDER
(Per Shri Narendra Kawde, Honble Member ) (1) This complaint has been filed jointly by the complainant No.1 & complainant No.2 against the opponent claiming the amount of subrogation of `27,63,343/- from the opponent to be released in favour of the complainant No.2 as assignee of the subrogation rights.
(2) The complaint in brief is that:-
the first complainant is a limited company doing business and the second complainant is limited company engaged in business of insurance. First complainant hired the services of opponent for carriage and safe delivery of the Diesel Generating Set (Engine) from Nhava-Sheva Port to Lucknow. The said consignment was accepted by the opponent and booked the consignment on door delivery basis vide Lorry Receipt No.056799 dated 29/01/2005.
The opponent did not ensure safe delivery to the destination of the said consignment as it was damaged during the transit due to accident on 29/01/2005. Accordingly, the damage survey has been recorded and placed on record. The loss of the consignment was assessed by the surveyors, M/s.Dixit & Co. appointed by the complainant No.2 with whom the consignment was insured.
The first complainant has lodged the monetary claim with opponent on 14/03/2005 as required U/s.10 of the Carrier Act, 1865 within the stipulated time. First complainant further submitted that the second complainant i.e. Insurance Company had settled the claim of the damage preferred by them under the policy of the insurance for the consignment. The first complainant executed letter of subrogation and special power of attorney for `27,63,343/- in favour of second complainant and claimed that the complainants are entitled for indemnification by the opponent for `27,63,343/- as the second complainant is consumer along with the first complainant. Further, it is averred that the opponent is liable for deficiency in service on account of negligence as bailee of the consignment. On the strength of letter of subrogation and special power of attorney executed in favour of the complainant No.2 by the complainant No.1 prayed for direction to opponent to pay the amount of subrogation and requested for release of the same in favour of complainant No.2.
(3) The opponent has filed written statement and affidavit of evidence & written arguements opposing the complaint on all possible counts and more particularly on the basis of judgmement delivered by the Apex Court in - Oberoi Forwarding Agency Vs. New India Assurance Co.Ltd. (2000) 2 SCC 407 and also pleaded that this issue has already been decided by this Honble Commission in Consumer Complaint No. 125/1998, (Aventis Pharma Ltd. Vs. 1.Mr.Jogender Malik & ors.) The opponent further contended that both the complainants are not consumers as definced U/s. 2(1)(d) of Consumer Protection Act, 1986 as they are involved in business for earning profit. Further, it is stated that the complainant No.1 had no cause of action having subrogated its right in favour of complainant No.2 and the complainant No.2 cant validly enforce letter of subrogation and power of attorney issued in their favour.
(4) This is an undated matter taken on board from sine-die list for hearing and disposal.
On the final date of hearing, Adv.Kalyani Parmar for the opponent was present, the complainants preferred to remain absent. Since, this being an old matter and the statement made by the learned advocate for the opponent that the written brief of the arguments has already been served on the complainant, we preferred to hear the case in absence of the complainants and reserved for order.
(5) The learned advocate for the opponent pleaded that the letter of subrogation and power of attorney in favour of the complainant No.2 is executed by the complainant No.1 subsequent to occurring of the damage to the consignment in transit. The complainant No.1 had already claimed the damages from the complainant No.2, insurance company and thereafter the subrogation letter and the power of attorney came to be executed in favour of the complainant No.2. Both the complainants are not consumers as defined U/s. 2 (1) (d) of the Consumer Protection Act, 1986 in as much as they are engaged in business to earn the profit and pleaded that complainant is liable for dismissal. Submission of learned advocate for the opponent that quantum and value of alleged claim has not been proved by the complainants and therefore need not be considered is not tenable in as much as the loss of consignment of the complainant No.1 i.e. consignor and settlement of the claim by the Insurance Company i.e. complainant No.2 is established by evidence. Having regard to this fact, it is not necessary for the complainant No.1 to prove that the loss/damage was due to negligence of the respondent.
(6) Perused the record and documents submitted by the parties. Admittedly, the complainant No.1s claim has been settled the claim in respect of damages under the insurance policy issued by the complainant No.2. The accident in transit for the consignment took place on 29/01/2005, as per the survey report. Power of attorney to receive the amount of `27,63,430/- has been executed by the complainant No.1 in favour of complainant No.2 on 30/12/2006.
(7) We observed that case law in - Oberoi Forwarding Agency Vs. New India Assurance Co.Ltd. (2000) 2 SCC 407 is further interpreted by Hon.Apex Court in (2010) 4 Supreme Court Cases 114 in Civil Appeal No.5611/1999 Page 50 (Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd. & Anr.) Consumer Protection Act, 1986 was amended by Amendment Act, 62 of 2002 w.ef. 15/03/2003 to exclude services availed for commercial purpose. After the said amendment if the service of the carrier availed for any commercial purpose, then the person availing the service will not be a consumer and therefore, as a result the complaint not be maintainable.
The instant case is pertaining to the year 2005 in as much as the accident of consignment took place in the year 2005 which was admittedly for commercial purpose. Therefore, this case squarely falls under the provisions of amended provisions of Consumer Protection Act, 1986 defining the consumer U/s.2(1)(d). This State Commission also decided the issue in Consumer Complaint bearing No.CC/05/63, (Aventis Pharma Ltd. & ors. Vs.
1.Mr.Jogender Malik & ors.) holding that as the complainants were engaged in business and the consignment was for the commercial purpose, therefore, they were held not to be consumer U/Sec.2 (1) (d) of the Consumer Protection Act, 1986 as amended w.e.f.15/03/2003.
(8) Relying on the pleadings of the learned advocate of the opponent and judgement mentioned, supra and record placed before us, we held that this consumer complaint jointly filed by the complainants against the opponent is not tenable in the law and therefore we pass the following order.
ORDER (1) Consumer complaint stands dismissed.
(2) Under the circumstances, parties to bear their own costs.
(3) Inform the parties accordingly.
Pronounced on 11th April, 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER pgg