RELIANCE INDUSTRIES LIMITED vs ASSOCIATED BULK MOVERS

THE complainants have filed this complaint for recovery of Rs. 6,43,434/- with 18% interest thereon from the date of loss till realisation, plus Rs. 30,000/- towards the cost from the opposite party-Associated Bulk Movers.

THE few facts are that the first complainant M/s. Reliance Industries Limited had entrusted the consignment of 13.230 M.T. of Linear Alkyl Benzene (LAB) for carriage, consideration and. safe delivery Ex. Patalganga to Chhindwara (MP). THE said consignment was loaded as per Invoice No. L 0002440 dated 30.9.1994 in Lorry Tanker No. MCY 508. THE said consignment was booked under Lorry Receipt No. 2313 dated 30.9.1994. THE said consignment was lost during transit and on 29.10.1994, the opposite party i.e. carrier, admitted the non-delivery of the entire consignment. THE certificate to that effect was issued on 29.10.1994. THE consignment was valued at Rs. 6,06,688.60 Ps. Vidarbha Engineers of Amravati were appointed as Surveyors for assessment of loss and according to their Marine Survey Report dated 11.10.1994, it was certified that the entire consignment was lost and had become useless. At the relevant time, this consignment was covered under the insurance by complainant No. 2 under insurance policy No. 112300/20/95/0007. THE first complainant after assessment of loss, executed Letter of Subrogation and Special Power of Attorney dated 26.4.1996 as against the payment of Rs. 6,43,434/ - in favour of the Insurance Company. THE complainants have contended that the carrier is responsible for deficiency in service under the provisions of Carriers Act, 1865, and accordingly the claim is preferred as indicated above. The opposite party contested this claim on various grounds. It is admitted that the consignment was taken in the Lorry Tanker No. MCY 508 driven by Shri Bakshi Singh Sewar Singh under the valid driving licence. The said lorry met with an accident on 4.10.1994 near village Karanja Chadge, Amravati, Nagpur Road due to the break down of R/S rear axel. The vehicle, therefore, could not be controlled and it over-turned upside down, and the contents of products drained out from the tank through the lids as well as the cracked portion of the metal body of the Tank. The opposite party had no control whatsoever over this accident. It is also stated that the claim by the Insurance Company on the basis of subrogation is not maintainable and that the complainant has failed to prove the negligence on the part of the carriers.

The learned Advocate for the Opposite party has drawn our attention to the case of Supreme Court reported in III (1997) CPJ 1 (SC)=(1997) 6 Supreme Court Cases 383, in the case of New India Assurance Company Limited v. G.N. Sainani. It is stated that under subrogation, the Insurance Company cannot maintain the claim against the carrier. However, on perusal of the same, it can be stated that the same is not applicable to the facts of the present case. In the first instance, both the Insurance Company and the consignor-M/s. Reliance Industries Limited have jointly filed the complaint. On the date of the accident the insured has insurable interest of the goods and hence, the ratio of the Supreme Court cannot be applied, because in the case of G.N. Sainani, the policy had lapsed on account of the refusal of the Insurance Company to extend the period of coverage arising on account of the goods being delivered at a wrong port.

SIMILARLY, the view of the Kerala High Court, in the case of Arief Trading Company v. United India Insurance Company Limited reported in 1994 (1) Current Civil Cases page 653, is also not applicable in this case, because the Reliance Industries Limited has also joined the complaint. In that case, only the Insurance Company had filed the claim and it was observed by the High Court that subrogation is not an assignment. On the other hand, in the case of Kishan Roadways v. National Insurance Company Limited & Anr., reported in 1996 (2) CPR page 169, it is observed that when the claim is settled by the Insurance Company and the insured executed letter of subrogation in favour of the Insurance Company, the carrier cannot be questioned on the locus standi of the complainant. On the point of negligence under Section 9 of the Carriers Act, the onus is on the carriers to prove the absence of negligence. No such evidence is forthcoming. The breakage of axel, may be on account of defective maintenance. We, therefore, feel that the claim of the complainant has to be allowed. Accordingly, we pass the following order : ORDER "The opposite party-Associated Bulk Movers to pay Rs. 6,43,434/- with 18% interest thereon per annum from the date of complaint till actual payment, plus cost of Rs. 30,000/- to the complainants. The payment shall be recovered by the Insurance Company." Complaint allowed.