Savani Roadlines Vs. Sunderam Textiles Ltd. and Anr.
EmailAppeal: Civil Appeal No. 7349 of 2000
(From the Judgment and Order dated 11.03.1999 of the National Consumers Disputes Redressal Commission, New Delhi)
(From the Judgment and Order dated 11.03.1999 of the National Consumers Disputes Redressal Commission, New Delhi)
Petitioner: Savani Roadlines
Respondent: Sunderam Textiles Ltd. and Anr.
Apeal: Civil Appeal No. 7349 of 2000
(From the Judgment and Order dated 11.03.1999 of the National Consumers Disputes Redressal Commission, New Delhi)
(From the Judgment and Order dated 11.03.1999 of the National Consumers Disputes Redressal Commission, New Delhi)
Judges: S. RAJENDRA BABU & S.N. VARIAVA, JJ.
Date of Judgment: Jul 13, 2001
Appearances:
Mr. M.N. Krishnamani, Senior Advocate, Mr. Alok Sangwan, Mr. Somayjit Pasi, Mr. S. Srinivasan and Mr.V. Sudeer, Advocates with him for the Appellants.
Mr. Soli J. Sorabjee, Attorney General, Mr. A.K. Raina and Mr. Anil Kumar Jha, Advocates with him for the Respondents.
Head Note:
CONSUMER PROTECTION
Consumer Protection Act, 1986
Section 2 – “Consumer”- Who is – Insurance company – Acting on “Letter of Subrogation” – If a “Consumer” under the Act. Held that in lieu of New India Assurance Company Ltd.’s case (JT 2000 (1) SC 528), an Insurance Company, acting under Letter of Subrogation is also an assignee and hence is not a “Consumer” or the beneficiary of service. (Para 5)
Cases Reffered:
1. Oberai Forwarding Agency v. New India As-surance Co. Ltd. reported in (JT 2000 (1) SC 508) (Para 6)
2. New India Assurance Company Ltd. v. G.N.Sainani (JT 1997 (6) SC 211) (Para 5)
2. New India Assurance Company Ltd. v. G.N.Sainani (JT 1997 (6) SC 211) (Para 5)
JUDGEMENT:
S.N.VARIAVA,J.
1. This appeal is against an order of the National Consumer Dis-putes Redressal Commission dated 11th March,1999.
2. Briefly stated the facts are as follows:
The first respondent had entrusted to the appellant 125 cartons of goods of the value of Rs.9,30,188/- for transport from Nangu-neri to Itchalkaranji. The goods were not delivered. The first respondent had insured the goods with the second respondent. The first respondent lodged a claim with the second respondent for loss of goods. The second respondent settled the claim of first respondent by paying a sum of Rs. 9,30,188/-. The second respond-ent took a letter which is termed as a “Letter of Subrogation and a Special Power of Attorney”. On the basis of this letter the second respondent filed a complaint before the State Consumer Redressal Forum.The first respondent was also a party to this complaint. The State Consumer Redressal Forum by its order dated 16th December,1998 directed the appellant to pay a sum of Rs.9,30,188/-with interest at 12% per annum.
3.The appellant filed a revision before the National Consumer Redressal Commission which has been dismissed by the impugned order dated 11th March 1999.Hence this appeal.
4. The only question raised before us is whether an insurance company is a consumer viz-a-viz. the appellant as such consumer can file a complaint before the Consumer Forum.
5. In the case of New India Assurance Company Ltd. v. G.N.Sainani (JT 1997 (6) SC 211 = 1997 (6) reported in SCC 383) this Court has held that assignee of a mere right to sue for the loss on account of short landing of goods cannot be regarded as any beneficiary of any service within the meaning of the definition “consumer”. It has been held that such assignee cannot file a complaint under the Act, but can file a suit in a civil court for recovery of the loss.It has been held that the complaint by such assignee would not be maintainable.
6. In the case of Oberai Forwarding Agency v. New India As-surance Co. Ltd. reported in (JT 2000 (1) SC 508 = (2000) 2 SCC 407), it has been held that an insurer compensating the consigner for loss of goods during transit and having an assignment was not beneficiary of the services hired by the consigner from the carrier. It is held that an insurer was not a consumer and could not therefore, maintain a complaint against the carrier of the goods. It is held that even the addition of the consigner as a co-complainant would not enable the ensurer to maintain such a complaint. In this judgment the term of “Letter of Subrogation” (in that case) are also set out. The main terms are more or less identical to the terms of the “Letter of Subrogation” in the present case. On an interpretation of those terms, this Court has held that such a “Letter of Subrogation” was in effect of an assignment. This Court has held that the assignee was not a beneficiary of the service and was not a consumer. It is held that a complaint by the Insurance Company was not maintainable.
7. Faced with this situation Mr. Raina submitted that in both cases i.e. New India Assurance Company Ltd’s case and Oberai Forwarding Agency’s the decisions were based on the fact that there was an assignment. He submitted that if there was no as-signment but mere subrogation then the principles laid down in these two cases would not apply. He submitted that on Subrogation the Insurance Company would merely step into the shoes of the consumer and would be filing the complaint on behalf of the consumer. He showed to this Court the various terms of the Letter of Subrogation and submitted that in this case there was no assignment, but a mere subrogation. He submitted that the com-plaint was thus maintainable.
8. In our view, it is not necessary to decide whether a com-plaint would be maintainable if there was mere subrogation. The main terms of the Letter of Subrogation in this case are identi-cal to the Letter of Subrogation in Oberai Forwarding Agency’s case. On such terms, it has been held that it is an assignment. As it is an assignment the principles laid down in the above mentioned cases apply and the complaint would not be maintain-able. We, however, clarify that it will be open for the Insurance Company to file a claim for recovery of the amounts in a civil court.
9. Accordingly, the Appeal is allowed. There will, however, be no Order as to Costs.
1. This appeal is against an order of the National Consumer Dis-putes Redressal Commission dated 11th March,1999.
2. Briefly stated the facts are as follows:
The first respondent had entrusted to the appellant 125 cartons of goods of the value of Rs.9,30,188/- for transport from Nangu-neri to Itchalkaranji. The goods were not delivered. The first respondent had insured the goods with the second respondent. The first respondent lodged a claim with the second respondent for loss of goods. The second respondent settled the claim of first respondent by paying a sum of Rs. 9,30,188/-. The second respond-ent took a letter which is termed as a “Letter of Subrogation and a Special Power of Attorney”. On the basis of this letter the second respondent filed a complaint before the State Consumer Redressal Forum.The first respondent was also a party to this complaint. The State Consumer Redressal Forum by its order dated 16th December,1998 directed the appellant to pay a sum of Rs.9,30,188/-with interest at 12% per annum.
3.The appellant filed a revision before the National Consumer Redressal Commission which has been dismissed by the impugned order dated 11th March 1999.Hence this appeal.
4. The only question raised before us is whether an insurance company is a consumer viz-a-viz. the appellant as such consumer can file a complaint before the Consumer Forum.
5. In the case of New India Assurance Company Ltd. v. G.N.Sainani (JT 1997 (6) SC 211 = 1997 (6) reported in SCC 383) this Court has held that assignee of a mere right to sue for the loss on account of short landing of goods cannot be regarded as any beneficiary of any service within the meaning of the definition “consumer”. It has been held that such assignee cannot file a complaint under the Act, but can file a suit in a civil court for recovery of the loss.It has been held that the complaint by such assignee would not be maintainable.
6. In the case of Oberai Forwarding Agency v. New India As-surance Co. Ltd. reported in (JT 2000 (1) SC 508 = (2000) 2 SCC 407), it has been held that an insurer compensating the consigner for loss of goods during transit and having an assignment was not beneficiary of the services hired by the consigner from the carrier. It is held that an insurer was not a consumer and could not therefore, maintain a complaint against the carrier of the goods. It is held that even the addition of the consigner as a co-complainant would not enable the ensurer to maintain such a complaint. In this judgment the term of “Letter of Subrogation” (in that case) are also set out. The main terms are more or less identical to the terms of the “Letter of Subrogation” in the present case. On an interpretation of those terms, this Court has held that such a “Letter of Subrogation” was in effect of an assignment. This Court has held that the assignee was not a beneficiary of the service and was not a consumer. It is held that a complaint by the Insurance Company was not maintainable.
7. Faced with this situation Mr. Raina submitted that in both cases i.e. New India Assurance Company Ltd’s case and Oberai Forwarding Agency’s the decisions were based on the fact that there was an assignment. He submitted that if there was no as-signment but mere subrogation then the principles laid down in these two cases would not apply. He submitted that on Subrogation the Insurance Company would merely step into the shoes of the consumer and would be filing the complaint on behalf of the consumer. He showed to this Court the various terms of the Letter of Subrogation and submitted that in this case there was no assignment, but a mere subrogation. He submitted that the com-plaint was thus maintainable.
8. In our view, it is not necessary to decide whether a com-plaint would be maintainable if there was mere subrogation. The main terms of the Letter of Subrogation in this case are identi-cal to the Letter of Subrogation in Oberai Forwarding Agency’s case. On such terms, it has been held that it is an assignment. As it is an assignment the principles laid down in the above mentioned cases apply and the complaint would not be maintain-able. We, however, clarify that it will be open for the Insurance Company to file a claim for recovery of the amounts in a civil court.
9. Accordingly, the Appeal is allowed. There will, however, be no Order as to Costs.
