2000 (2) TMI 791 - SC - Indian Laws

Whether the first respondent insurance company was subrogated to the rights of the second respondent consignor in respect of the lost consignment or whether it was the assignee of the rights of the second respondent in respect thereof? Whether it was a consumer within the meaning of the Consumer Protection Act, 1986, entitled to maintain a complaint thereunder? Held that - Appeal allowed. By reason of the transfer and assignment of all the rights of the second respondent in the first respondents favour, the second respondent retained no right to recover compensation for the loss of the consignment. The addition of the second respondent to the complaint as a co-complainant did not, therefore, make the complaint maintainable.

Issues Involved:
1. Whether the first respondent insurance company was subrogated to the rights of the second respondent consignor in respect of the lost consignment or whether it was the assignee of the rights of the second respondent in respect thereof.
2. If the latter, whether the first respondent was a consumer within the meaning of the Consumer Protection Act, 1986, entitled to maintain a complaint thereunder.

Issue-wise Detailed Analysis:

1. Subrogation vs. Assignment:
The primary issue was to determine whether the first respondent insurance company was subrogated to the rights of the second respondent consignor or whether it was the assignee of those rights. The second respondent had executed a Letter of Subrogation and a Special Power of Attorney in favor of the first respondent after the consignment was lost. The Letter of Subrogation stated: "we hereby assign, transfer and abandon to you all our rights against the Railway Administration Road transport carriers or other persons whatsoever, caused or arising by reason of the said damage or loss and grant you full power to take and use all lawful ways and means in your own name and otherwise at your risk and expense to recover the claim for the said damage or loss and we hereby subrogate to you the same rights as we have in consequence of or arising from the said loss or damage."

The court analyzed the distinction between subrogation and assignment, citing various judgments and legal principles. Subrogation allows the insurer to step into the shoes of the insured to recover from third parties but must be done in the name of the insured. Assignment, on the other hand, transfers all rights and interests to the insurer, allowing them to sue in their own name.

The court found that the Letter of Subrogation, despite using the term "subrogate," effectively assigned all rights of the second respondent to the first respondent. This was indicated by the use of the word "assign," the transfer of all rights, and the authorization for the first respondent to take legal action in its own name. Therefore, the document was deemed an assignment rather than a mere subrogation.

2. Consumer Status under the Consumer Protection Act:
The second issue was whether the first respondent, as an assignee, could be considered a consumer under the Consumer Protection Act, 1986, and thus maintain a complaint. According to Section 2(b) and 2(d)(ii) of the Act, a consumer is someone who hires or avails of services for consideration, including any beneficiary of such services.

The court referred to previous judgments, including New India Assurance Co. Ltd. vs. G.N. Sainani, which held that an assignee of a right to recover loss is not a beneficiary of any service and therefore not a consumer under the Act. The court concluded that since the first respondent was an assignee of the right to recover compensation for the lost consignment and not a beneficiary of the transportation service, it was not a consumer within the meaning of the Act.

Additionally, the court noted that the second respondent, having assigned all its rights to the first respondent, retained no right to recover compensation. Thus, adding the second respondent as a co-complainant did not make the complaint maintainable.

Conclusion:
The appeal was allowed, and the judgment and order under appeal were set aside. The complaint filed by the respondents was dismissed, concluding that the first respondent was not a consumer under the Consumer Protection Act and therefore not entitled to maintain the complaint.

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