E.J. Bellie, President

1. The case of the complainants is that on 28.3.1995 a consignment of 160 bags of combed hosiery yarn was entrusted to the opposite party at Dindigul in good condition for safe carriage by road to Calcutta. The consignment was to be delivered to M/s. South Yarn Distributors, Calcutta. It was insured with the 2nd complainant. The consignment was not delivered at all to the consignee. The opposite party issued a certificate dated 25.4.1995 admitting non-delivery of the consignment. The value of the consignment was Rs. 9,28/000/-. The opposite party has not chosen to make good the loss to the 1st complainant in spite of several demands. The 2nd complainant Insurance Company has settled the amount payable to the 1st complainant as per the insurance policy and it has been subrogated to claim the amount paid to the 1st complainant. The non-delivery of the goods is due to the negligence and misconduct of the opposite party. Therefore, the opposite party is liable to pay the loss suffered by the complainants. On these grounds the complaint was filed for directing the opposite party to pay the said sum of Rs. 9,28,000/- with interest thereon atl8% per annum from the date of petition till the date of realisation, and also to pay Rs. 10,000/- as Costs.

2. The opposite party filed a written version contending that the consignment was sent by a lorry through one M / s. Kumaran Roadways and the consignment was loaded in it to be carried upto Ichapuram, but the lorry never reached there and there was no information about me lorry. A police complaint was given. Police are still investigating about the whereabouts of the lorry. In these circumstances, there was no deficiency in service on their part. It is further contended that even if the 1st complainant has subrogated its right to the 2nd complainant, they can make a claim only in a Civil Court and not in the Consumer Forum. Therefore, the complaint is liable to be dismissed.

3. The points for consideration are :

(1) whether there was any deficiency in service on the part of the opposite party; and

(2) if so, what relief can be granted to the complainant ?

4. It is not in dispute that the consignment was delivered to the opposite party for safe carriage. If is also not disputed that the consign ment was not delivered at the destination. The contention of the opposite party appears to be that the lorry in which the consignment was sent to be carried upto Ichapuram did not reach the destination and hence a police complaint has been given and the whereabouts of the lorry are still not known and therefore, it cannot be said mat they are deficient in service. The case of the opposite party cannot be accepted because it is their responsibility to take the goods safely to the destination, and the said explanation given by them cannot be accepted as it would absolve their liability. According to the complainant, the value of the goods is Rs. 9,28,000/-. This is not disputed. This amount, the opposite party is liable to pay to the 1st complainant. The complainants have also claimed interest @ 18% per annum from the date of petition till realisation. This appears to be quite reasonable and therefore, this could be awarded.

5. As regards the 2nd complainant-Insurance Company, it is not disputed that it had settled with the 1st complainant paying the amount to it as per tine terms of the insurance policy and it had been subrogated to the rights of the 1st complainant to recover that amount from the opposite party. As seen from the letter of subrogation dated 19.5.1995, the Insurance Company has paid to the 1st complainant a sum of Rs. 9,28,000/-. Of course, the 2nd complainant-Insurance Company cannot be said to be a consumer vis-a-vis the opposite party, but since the 1st complainant would submit that the amount paid by the Insurance Company may be paid to it out of the amount payable to the 1st complainant by the opposite party, purely as a matter of convenience, it can be considered, and there is no illegality in

it. 6. In the result, there will be an award for a sum of Rs. 9,28,000/- with interest @ 18% per annum from the date of petition till realisation. Out of mis amount, the 2nd complainant-Insurance Company will be entitled to and shall be paid a sum of Rs. 9,28,000/-, and to the balance amount the 1st complainant will be entitled to. The 1s.t complainant will also be entitled to costs of Rs.2,000/-. Complaint allowed with costs.