Judgment:
A. Venkatarami Reddy, President:
1. This appeal is filed by Savani Carrying Corporation i.e. Transport Organisation against the order of the District Forum, Kakinada sitting at Rajahmundry on CD. 298/92, whereby the District Forum directed the appellant i.e. opposite party in the CD. to pay a sum of Rs. 28,490/- with interest at 18% from 4.8.89 and Rs. 500/- towards costs.
2. It is not in dispute that A.P. Paper Mills Ltd., i.e. the second complainant in the CD. and second respondent in this appeal sent 414 bundles of papers from Rajahmundry to M/s. K.K. Traders Pvt. Ltd., Sivakasi through the branch office of Savani Transport Corporation at Rajahmundry. The consignment, during transit was damaged on 3.5.89 due to accident resulting in the paper bundles falling down on the road. The remaining bundles were handed over to the consignee at Sivakasi on 9.5.89. Thereafter a claim was made against the transport company for damages of Rs. 11 lakhs and also police complaint was made. Since the goods were insured with the Oriental Insurance Company i.e. the first complainant in the CD. and 1st respondent in this appeal and as the Transport Corporation failed to pay the damages to the A.P. Paper Mills Ltd. the Insurance Company paid a sum of Rs. 28,490/- to the Paper Mill i.e. consignor who executed a letter of subrogation and Special Power of Attorney in favour of the Insurance Company. Hence the Insurance Company by itself filed a complaint 7.5.92 against the Savani Carrying Corporation claiming a sum of Rs. 28,490/- with interest. Subsequently on 14.7.93 I.A. 104/93 was filed before the District Forum to implead A.P. Paper Mills as the second complainant and the District Forum passed an order on 18.8.93 allowing the I.A. 104/93 and ordered the A.P. Paper Mills to be impleaded as second complainant.
3. The claim who opposed on various grounds such as the District Forum at Rajahmundry has no territorial jurisdiction to entertain the matter and the complaint ought to have been filed only against the partner of the firm as branch office has no independent existence, the first complainant is not a consumer and the lorry driver and the owner are not added as parties and the complaint is barred by limitation.
4. The District Forum held on a consideration of the documents filed before it that as part of the cause of action arose at Rajahmundry where the consignment was booked, the complaint against the Transport Corporation is maintainable; as it is not stated in the objections that there is a partnership-firm and that who is the Managing Partner of the partnership-firm, except merely filing a xerox copy of the partnership deed and hence the complaint cannot be rejected on that ground. The District Forum further held that since under Ex. A-19 the letter of subrogation, the rights of the second complainant to proceed against the opposite party were transferred to the first complainant and as the second complainant was also made party to this complaint who is indisputably a consumer, it therefore, cannot be said that the complaint is not maintainable. The lorry owner and the driver were not necessary parties to the complaint and the complaint is also not barred by limitation.
5. In this appeal preferred, Mr. G.P. Bhagdia the learned Counsel for the appellant raised three contentions. Firstly that the 1st complainant i.e., Oriental Insurance Co. Ltd. is not a consumer within the meaning of the Consumer Protection Act, secondly that as the second complainant was added beyond the period of limitation, the complaint is barred so far as the second complainant is concerned and as the first complainant is not a consumer, the complaint is liable to be dismissed, and thirdly that in any event the District Forum ought to have directed payment of Rs. 24,296.73 Ps. being the loss assessed by the Surveyor and not Rs. 28,490/-.
6. So far as the contention that the Insurance Company is not a Consumer and therefore cannot independently maintain a complaint is concerned, it is well founded in view of the decision of the National Grievances Redressal Commission in M/s. Green Transport Company v. New India Assurance Company Limited, F.A. No. 91 /91 decided on 20th May 1992. In the said decision, the Insurance Company alone filed a complaint against the Green Transport Company on the ground that by virtue of deed of subrogation they stood in the shoes of the transporter and that therefore they are entitled to maintain a complaint. The State Commission upheld the contention of the Insurance Company holding that :
âIn view of the letter of subrogation, the complainant was substituted in place of M/s. Seth Brothers in respect of their rights and claim against the defendant. It cannot be disputed that M/s. Seth Brothers was a consumer as defined in the Act. Consequently in our view the complainant also becomes a consumer. We hold accordingly.â
This view of the State Commission was reversed by the National Commission on the ground that the New India Assurance Company was not the person who hired the services nor had there been any rendering of service as beneficiary with the approval of M/s. Seth Brothers.
âIt had merely insured the consignment which formed the subject matter of contract of carriage. Such being the position, the New India Assurance Company Ltd., cannot be regarded as coming within the definition of Consumer so as to entitle it to maintain the complaint petition before the Consumer Forum.â
It further observed the fact that the Insurance Company had acquired rights of subrogation or a transfer of the right of action which M/s. Seth Brothers had as against the transporter or that it had been granted a special power of attorney would not in any way improve the position of the Insurance Company so far as proceedings under the Consumer Protection Act are concerned. The National Commission therefore set aside the order of the District Forum and dismissed the complaint.
7. But in the instant case, at the time of hearing of the complaint M/s. A.P. Paper Mills Ltd., who booked the consignment was made second complainant. It cannot be disputed that the A.P. Paper Mills is a consumer as it hired the services of the opposite party. Since there are two complainants one which is a consumer, we are inclined to agree with the District Forum that the complaint cannot be dismissed as not maintainable.
8. With regard to second contention, the learned Counsel for the appellant submitted that the damaged goods were delivered to the consignee on 9.5.89. The complaint was presented by the first complainant alone. On 7.5.92 i.e. a few days prior to the expiry of the limitation period of three years, I.A. 104/93 was presented to add the second complainant as a party on 14.7.93 and the same was ordered on 18.9.93. Hence as by the date of the filing of I.A. 104/93, the period of three years limitation had expired, the second complainant could not have filed a fresh complaint as the same would have been barred by limitation by 14.7.93.
9. The learned Counsel for the appellant relied on the Full Bench decision of the A.P. High Court in The Ongole Byragi Mutt, Ongole and Others v. Inala Kannaya and Others. In the said case, it was held by the Full Bench that : â
âA suit is not said to be properly constituted unless all the necessary parties are impleaded. Persons who ought to be joined as parties are called necessary parties. Those are persons necessary to the constitution of the suit i.e. persons in whose absence no effective decree at all can be passed. If necessary parties are not impleaded, the suit is bad for non-joinder and the addition of those parties after the period of limitation will necessitate the dismissal of the suit. If however, at the inception, the necessary parties are impleaded, the non-joinder of other persons are not necessary or indispensable but who joined is only desirable to safeguard their rights and the rights of others and to prevent further litigation does not render the suit as improperly constituted and the joinder of those parties after the period of limitation will not necessitate the dismissal of the suit.â
The Transport Corporation was made party whose presence is necessary and the complaint was instituted in time. The District Forum on an application filed for impleading the A.P. Paper Mills as second complainant ordered the same on 18.8.93 by passing a separate order. But this order of impleading became final as the opposite party appellant did not prefer either an appeal or revision against that order. The District Forum therefore held that it is not open to the opposite party to raise that contention and it operates as res-judicata. It is to be seen that all the provisions of the C.P.C. and Limitation Act are not made applicable to the proceedings under the Consumer Protection Act. The complaint was entertained by the District Forum as it was filed within the period of limitation by the first complainant and the second complainant was added by the date of the hearing of the complaint. The opposite party did not question the order whereby the second complainant was impleaded as party. Having regard to the circumstance that as on the date of the filing of the complaint, the complaint was maintainable, we are not inclined to interfere with the order of the District Forum.
10. We do not see any force also in the third contention. The Insurance Company paid the amount of Rs. 28,490/- to the second complainant and the complaint filed claiming the same amount with interest is not illegal.
11. In the result, the appeal is dismissed. There shall be no order as to costs.
Appeal dismissed.