Subrogation cases - injustice to Transporters

Hi..Members,

I want to discuss one specific issue with you all legal pundits and for solution.   The topic  is “SUBROGATION”  claims by insurance companies  against  Transporters.

The carriers Act, 1886 ,  T.P Act,  IPC,  Contract  Act 1872  and  etc.,  all  are  applicable for Transporters.  The fact is that  there was no Truck / Bus / Containers  at the time, the  Carriers Act, 1886 was enacted.  The basic transportation was only  Sea or  small size Bullock Carts or Horse Carts or  Hand Carts. Later on  Motor Vehicle was invented. Initially it was running on Coal  and gradually  developed.

The said Carriers Act was  enacted on the basis of the  transportation situation at that point of time. The  system of transportation  drastically changed but , till date  nothing  change is happened  to the Law.

In recent past  a new  trend  is  developed  i.e  Insurance companies claiming on Subrogation against  Transporters.  To some extent  we agree and support that if the transporter , his agents, servant  etc  are  involved.  Even though  the Carriers Act, 1886,    is very old law,  it clearly  says in case of  Act of God or  situation beyond the control of the transporter, the transporter is not liable for the loss.  Surprisingly,  our courts are giving  definition  in very  excellent manner and  even the author of the original Carriers Act cannot under stand. I don’t know whether it can be called  judgments of excellent  brains or not.

Crores of rupees  worth of  shipments are transporting by a  transporter for few bucks as freight charges.  In case of  an eventuality during transportation,  our courts are making Carrier liable  for the  incident happened,  infact  it is not because of  the transporters negligence.    In one surprising  judgment, the court  found the fault of Transporter and directed to make payment to the Insurance company

The Facts are :   An edible Oil container which was passing through the state of Orissa,  caught in a sudden cyclone / hurricane which was devastated the hole state.  All major roads cut due to heavy flush floods.  Communication ,  Electricity every thing was cut.  The  public became very panic. They were under severe draught, no food, had struck  in  water  but not having  water to drink.  They had lost their patience and commonsense.   What ever was appearing to them simply they were looting and for that also they  were fighting each other.

The truck driver was not  an astrologer  or  not having any  idea of  future happenings.  The poor driver also  got struck  in that  terrific situation.  Not only he, several truck like him.  No front way or no back way. In such situation,  the near by  effected people simply looted the Oil.  The situation for that driver and cleaner also not spare.  They also equally victims of the  gods fury. They were also not having food , water for days together.

Fine,  come to the  issue, the   Consigner  claimed from their under writers and  the under writers  in turn on the basis of  subrogation, filed  a suit  for recovery of  value of the shipment.  All courts  were favourable to the Insurance Co.,   The finding  of the court was ,  the driver did not stop the vehicle at safe and secured place.   How  meaning  less it was.  Any ordinary prudent man can say  there was no  secure place  at that point of time. There was no negligence on the part of  transporter or their agents, servants etc., 

In another case  the entire truck was  looted by  High Way Robbers  and killed the Drivers and cleaners.  The police found  the act was of  the  habitual Robbers. In such case,  how  the transporter was liable for the loss. It was not his fault or negligence.

 Was it not beyond the control  of the Transporter.   The another argument  of some of our friends,  not to  drive the vehicle in night.   Such situations  are not only happens  in night it happens in day time also.

Is it  not the  failure of our  Government to provide  safe  driving on roads. Is it not the issue of  Law and Order problem of the state.  Why Government is not having any responsibility.  Why our courts are ignoring such  incidents and  passing  judgments against  poor transporters.  The offenders  do such act in one state and abscond to another state.  There are no cordial relations  between states with in India, it is universal truth. 

It is true, Transporters are always victims of  old Indian Law . It is clear Discrimination