JUDGMENT : Sunil Hali (Retd.), President The complainant No. 2 is conducting the business of sale and export of dry fruits including walnut kernels at Bari Brahamina, Jammu. As a regular feature of his business, he has to dispatch dry fruit and walnut kernels of different qualities loaded in cartons to different places all over India by rail or road. 2. A consignment of walnut kernels weighing 660 Kgs packed in 44 cartons was sent by the complainant No.2 to M/s New Ramesh Kiryana Store, Sindhi Commercial Market, Kallupur, Ahmedabad through opposite party No. 1 on 09.01.2014 and the same was handed over to opposite party No. 1 for safe delivery to the said consignee. The value of the said consignment as per the Invoice No. SIS/2013-626 dated 08.01.2014 was Rs. 5,20,617.18. On the same day another consignment of walnut kernels weighing 150 Kgs packed in 10 cartons was dispatched to M/s Tejpal Suppliers, 4 Krishan Kanaiya Complex, Madhopura, Ahmedabad through opposite party No. 1 vide Invoice No. SIS/2013-627 dated 08.01.2014. The net value of this consignment as per the invoice was Rs. 1,23,519.45 3. Both these consignments were handed over to opposite party No. 1 for transportation, who in lieu of receipt of consignment issued G.R.Nos.9448 and 9449 both dated 09.01.2014 to the complainant No.2. The consignments were to be transported in their truck for their safe delivery to the consignees. 4. Both these consignments were insured with the complainant No.1 under Marine Cargo Open Policy No.111800/21/13/02/00000024 for the period 12.09.2013 to 11.09.2014 for Rs. 2.00 crores from Jammu to anywhere in India by rail/road limit per transit and per location being Rs. 70.00 lacs covering all risks to the consignments. 5. The consignment of 18 cartons was delivered to M/s New Ramesh Kiryana Store, Sindhi Commercial Market, Kallupur, Ahmadabad instead of 44 cartons and similarly 02 cartons were delivered to M/s Tejpal Suppliers, 4 Krishan Kanaiya Complex, Madhopura, Ahmedabad instead of 10 cartons, handed over to the opposite party No. 1 for safe delivery. Thus 26 cartons of walnut kernels out of 44 and 08 cartons out of 10 were not delivered to the consignees. The consignees in their communications intimated the complainant No.2 regarding non delivery of aforementioned quantity of cartons, as a consequence of which, complainant No.2, informed the complainant No.1-insurer regarding non delivery of the aforementioned cartons. 6. The Insurance Company deputed one Sh. The consignees in their communications intimated the complainant No.2 regarding non delivery of aforementioned quantity of cartons, as a consequence of which, complainant No.2, informed the complainant No.1-insurer regarding non delivery of the aforementioned cartons. 6. The Insurance Company deputed one Sh. Agya Pal Sangra, IRDA licensed Surveyor to assess the loss, who vide his report dated 04.03.2014 assessed the net loss at Rs. 4,41,936/-. This loss was caused to the complainant No.2 due to the negligence and carelessness of the opposite party No.1 (carrier) and its employees. The opposite parties were informed by the complainant No.2 about the said loss, as a result of which, a complaint was lodged with them by registered post letter dated 06.02.2014 for reimbursement of the loss. 7. The opposite party No.1 through its letter dated 29.01.2014 informed the complainant No.2 that there was a short delivery and non-delivery of 34 cartons on account of being stolen in transit. Despite having admitted the non-deliver of afore mentioned cartons, the loss was not indemnified by opposite parties No. 1 and 2. The insurer with whom the claim was lodged, reimbursed an amount of Rs. 4,41,900/- vide cheque dated 24.03.2014 to the insured. 8. The complainant No.2 executed a letter of subrogation-cum-power of attorney in favour of complainant No. 1 whereby it subrogated and transferred all its rights for recovery against the opposite party No. 1 (carrier) and authorized it to seek recover of Rs. 4,41,900/- from the opposite party No. 1 (carrier). This was done because the complainant No.2 has received the amount from the complainant No.1. This letter of subrogation-cum-power of attorney authorizes the complainant No. 1 to initiate recovery proceedings for and on their behalf, as such, for effecting such recovery, thus this complaint has been filed by the complainant No.1. 9. The stand of the opposite parties/respondents is that the Commission does not have the jurisdiction to entertain this complaint as their Head Office is located in Jalandhar. It is stated that the consignment was sent through Sarvodaya Express Train No: 12474 and while in transit, it was found that a theft had taken place and some unknown persons had stolen the goods in bogies forming part of said train on its way to Ahmedabad and a FIR No:014/14 of 2014 under Section 379 was registered in this behalf. 10. 10. The other contention raised by the opposite parties/respondents is that these goods were not stolen on account of negligence or carelessness on the part of the opposite parties but the same were stolen while they were in transit in a railway bogie. The further stand of the opposite parties is that the complainant is not a consumer. It is, however, admitted that 34 cartons which were not handed over to the consignees, were stolen. It is further contended by the opposite parties that the assessment made by the Surveyor has been done at the back of the opposite parties No.1 and 2, therefore, they are not bound to indemnify the complainant. The letter of subrogation-cum-power of attorney is not in accordance with law. 11. We have heard the learned counsels for the parties. The facts in this case are not in dispute that the consignments were booked by the complainant No.2 with the opposite party No. 1 and which were required to be delivered to the consignees at their address. Out of 54 cartons, which were required to be delivered only 20 have been delivered. 12. The contention of the opposite parties that this Commission has no jurisdiction is required to be examined. Before adverting to the contention raised, it is necessary to take note of the provisions dealing with the cause of action. section 9 of the Consumer Protection Act, 1987 provides that a complaint shall be instituted in the Forum within the legal limits of whose jurisdiction the opposite party or each of the opposite parties if they are more than one, actually or voluntarily or directly or through a branch office carries on business or personally works for gains. The procedure provided for disposal of the complaints by the Divisional Forum is made applicable to the disposal of dispute by the State Commission. The plain language of the Section envisages that a complaint can be filed within the territorial jurisdiction of this Commission provided the opposite party carries on business directly or through its branch office. 13. In the present case we find from the G.R. issued by the opposite parties No. 1 and 2 that the Head Office of the opposite parties No. 1 and 2 is located at Jalandhar, whereas, its Branch Office is at Jammu near Railway Station. 13. In the present case we find from the G.R. issued by the opposite parties No. 1 and 2 that the Head Office of the opposite parties No. 1 and 2 is located at Jalandhar, whereas, its Branch Office is at Jammu near Railway Station. Along with that various telephone numbers operating at the Branch office are also indicated in the G.R. Therefore, to say that they have no Branch Office at Jammu is belied by their own documents. Having said so, this Commission has the territorial jurisdiction to entertain this complaint. 14. Coming to the second contention raised that there is no dispute as the insurer has already paid an amount of Rs. 4,41,900/- to the complainant No.2 on account floss caused to his goods, which were insured under Marine Cargo Open Policy. Consequently this amount as been reimbursed by the complainant No. 1 to the complainant No. 2. It is also an admitted fact that a letter of subrogation-cum-power of attorney has been executed by the complainant No.2 in favour of the complainant No. 1. Therefore, on the strength of this letter of subrogation-cum-power of attorney, the complainant No. 1 acquires the right to recover this amount from the opposite parties. 15. The doctrine of subrogation provides equitable assignment of the rights and the remedies of the insured in favour of the insurer are implied under the contract of indemnity known as subrogation. This principle is based on two basic principles of equity that no tort feasor should escape liability for his wrong and there should be no unjust enrichment for the insured, who can claim the amount from the insurer as well as carrier. The doctrine of subrogation enables the insurer to step into the shoes of the assured and enforce the rights and the remedies available to the assured. This doctrine is an equitable assignment which is inherent, incidental and collateral to a contract of indemnity, which occurs automatically once the claim of the insured is settled by the insurance company. The claim has to be settled fully by the insurer to the insured. Therefore, where the insurer has reimbursed the entire loss incurred by the insured, it can sue in the name of the insured for the amount paid by it to the insured. 16. The claim has to be settled fully by the insurer to the insured. Therefore, where the insurer has reimbursed the entire loss incurred by the insured, it can sue in the name of the insured for the amount paid by it to the insured. 16. In the present case the complainant No. 1 while invoking the doctrine of subrogation has a right to claim the loss indemnified by it from the carrier. The only condition provided therein is that the claim should have been settled in totality. The nature of the documents executed by the insured in favour of the insurer is a subrogation simple-citer. 17. The document executed whether it is subrogation simple-citer or subrogation-cum-assignment, is relevant only in dispute between the insurer and the insurer. The only condition required to be fulfilled is that the insured has been identified by the insurer as a consequence of which, the insurer is empowered to seek the recovery of the indemnified amount. The carrier may not have any right to contest in this behalf. 18. The next contention raised by the opposite parties is that the Carriers Act is not applicable in the State of Jammu and Kashmir; therefore, the present complaint cannot be maintained. In case of non-application of the Carriers Act, the principle of common law gets attracted to all those cases coming before the Consumer Forum. The burden of proof gets shifted to the Carriers by the application of legal presumption under the common law. 19. We are fortified in this view by the judgment of the Apex Court reported in 2010 (1) Supreme 658 titled Economic Transport Organization vs. M/s. Charan Spinning Mills (P) Ltd. and Anr. The following portion of the judgment is quoted herein below: "Doctrine of Subrogation-Principles governing-The equitable assignment of the rights and remedies of the assured in favour of the insurer, implied in a contract of indemnity, known as 'subrogation', is based on two basic principles of equity-No tort feasor should escape liability for his wrong-No unjust enrichment for the injured, by recovery of compensation for the same loss, from more than one source-Doctrine of subrogation thus enables the insurer, to step into the shoes of the assured, and enforce the rights and remedies available to the assured. Words and Phrases-Subrogation-Term 'subrogation' in this context of insurance, is defined in Black's Law Dictionary as the principle under which an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy." Followings observations of the Hon'ble Supreme Court are also quoted herein below: "29. Again in Economic Transport Organization vs. Dharward District Khadi Gramodyog Sangh-2006 (5) SCC 78, this Court reiterated the principle stated in Patel Roadways and added the following: "Even assuming that section 9 of the Carriers Act, 1865 does not apply to the cases before the Consumer For a under Consumer Protection Act, the principle of common law above mentioned gets attracted to all these cases coming up before the Consumer For a section 14(1)(d) of the Consumer Protection Act has to be understood in that light and the burden of proof gets shifted to the carriers by the application of the legal presumption under the common law. Section 14(1)(d) has to be understood in that manner." 20. The next contention raised by the leaned counsel for the opposite parties is that the loss or damage caused to the goods was not on account of negligence or carelessness of the carrier. It is further contended that proceedings initiated against the carriers requires the complainant to prove that it was due to negligence and carelessness of the career. In this behalf we rely upon the judgment of the Apex Court in case titled "Nath Bros. Exim International Ltd vs. West Roadways Ltd reported in (2000) CP 25 (SC) "(i) Transport Services: Liability of Carrier: Loss or Damage Caused to Goods on Account of His own Negligence or Criminal Act or That of His Agent and Servants -Liability of Carrier to whom goods are entrusted for carriage is that of insurer and absolute in terms, so long goods are in custody of carrier - Sections 3, 4, 5, 6, 8, 9 - Carriers Act, 1865. Held: The liability of a carrier to whom the goods are entrusted for curiae is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. Held: The liability of a carrier to whom the goods are entrusted for curiae is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of its carrier to take due care as he would have taken to his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants. (ii) Transport Service: Expression "Owner's Risk": Meaning: Does Not Exempt Carrier From His own negligence or Negligence of His Servants or Agents." 21. In the judgment it is further observed that failure on the part of the carrier to deliver the goods safely is a breach of duty placed upon him by the common law; and, therefore, an action of tort lies against him for such breach, the owner is not bound to prove any contract. 22. In view of this discussion we allow this complaint and direct the opposite parties No. 1 and 2 to reimburse an amount of Rs. 4,41,900.00 (rupees four lac forty one thousand and nine hundred only) along with interest @ 6% from the date of filing of this complaint. The amount be deposited in this Commission within the period of six weeks.