Mr. B.K. Taimni, Member
Appellant was the opposite party before the State Commission, where the respondent/complainant M/s. Max India Ltd. had filed a complaint alleging deficiency in service.
2. Undisputed facts of the case are that the respondent/complainant was a manufacturer and supplier of BOPP films and had handed over a number of packages on different dates for its transportation. The valuation of said consignments is Rs. 5,01,315-76 ps. but these consignments remained undelivered as they were destroyed by fire en route. Notice under Carriers' Act was issued by the complainant. Since issue was not getting settled, thus alleging deficiency in service on the part of the appellant, a complaint was filed before the State Commission, who after hearing the parties allowed the complaint and directed the appellant to pay Rs. 5,01,316/- along with interest @ 10% p.a. from the date of loss till the date of payment. Aggrieved by this order, this appeal has been filed before us.
3. In memo of appeal two grounds have been taken ? firstly, there has been no negligence on the part of the appellant and secondly, since the amount has already been paid by the Insurance Company to the respondent, no cause of action survives.
4. The respondent remained absent despite notice, hence we go on to pass the order based on arguments advanced by the learned Counsel for the appellant as also the material on record.
5. The first plea of the appellant is that there was no negligence. It means to be appreciated that we are not looking at the 'negligence' but 'deficiency' in rendering the 'service'. Section 2(l) (g) of Consumer Protection Act, 1986 defines 'deficiencies', which reads as under:
"Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."
6. A plain reading of this will show that the appellant having once accepted the goods, as a common carrier was obliged to deliver the goods at destinations. Admittedly, they were not delivered, hence deficiency in rendering service to the complainant is writ large on the part of the appellant, on the face of it. We see no merit in the plea taken by the appellant that they cannot be held responsible for the loss on account of fire, as the fire was caused on account of improper packing, as also failure on the part of the complainant to take precaution as inflammable goods were packed. No evidence of any expert or any material has been brought on record to substantiate this part, in the absence of which, we see no merit in this.
7. The main plea before us as well as in the Memo of Appeal is that since the appellant has been compensated by the Insurance Company, hence there is no cause of action. The State Commission has comprehensively dealt with this particular point and relying upon a judgment of the Division Bench of Madras High Court in ''Sri Sarada Mills Ltd. v. Union of India representing Central Rly. and Ors., AIR 1966 Madras 381, held that it would no defence to the complainant's action that Insurance Company had paid to the complainant the amount for which the goods were insured. There is no disputing the fact that Insurance Company was not a party and the contract of delivery of goods was between these two parties who are the appellant and respondent before us. The onus cannot be shifted to a third party who is not a party in dispute, i.e., in this case, the Insurance Company. Our view is further strengthened by the fact that when the complainant moved an application before the State Commission to join the Insurance Company as a party, it was the appellant who opposed this application before the State Commission. In our view, at this stage, it does not become of the appellant to raise an objection that certain amount has been paid by the insurer to the complainant. No affidavit to this effect or no report of the Insurance Company has been filed before us to support their this contention. Be that as it may, as per the citation relied upon by the State Commission as also discussions on this point, State Commission, in our view, has adequately dealt with the same point which is sought to
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be raisd before us. We dismiss this plea on the same grounds as per discussion on this point in the order passed by the State Commission. 8. In view of above, we see no merit in this appeal, which is dismissed. 9. A copy of this order may be sent to the New India Assurance Company, 87, Mahatma Gandhi Road, Fort, Bombay, as well as to the Divisional Office at 89, Nehru Place, New Delhi - 110019, for information and for any action deemed necessary at their end.