Delhi District Court
Royal Sundaram Alliance Insurance Co. ... vs KanpurBareily Freight Carriers on 6 August, 2011
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE CENTRAL9: DELHI
Suit No. 67/06
1. Royal Sundaram Alliance Insurance Co. Ltd
Registered Office
21, Patullous Road, Chennai600002
Corporate Office:
46, Whites Road, Chennai600014
North Regional Office:
th
Signatures Tower, 9 Floor, TowerII, South CityI,
National Highway 8, Gurgaon122001
2. Apollo Tyes Ltd.
"Apollo House"
No.7, Institutional Area
Sector32, Gurgaon
Haryana
............Plaintiffs
Versus
KanpurBareily Freight Carriers
Head Office:
2, Transport Nagar,
Meerut, Uttar Pradesh
Also at:
14/A, Patel NagarII,
Suit No. 92/06 Page 1 of 30
G.T. Road, Ghaziabad, Uttar Pradesh .......Defendant
Suit filed on : 22.03.2006
Judgment on : 06.08.2011
JUDGMENT
1. Plaintiff No.1 has filed the present suit for recovery praying for a money decree for a sum of Rs. 19,68720/ in its favour and against the defendant together with interest at a rate of 18% per annum from the date of filing the suit till realisation. The suit of the plaintiff is that plaintiff No. 1 is a company incorporated under companies Act 1956 having its registered office at 21, Patullous Road, Chennai,corporate office at 46, whites Road Chennai and regional office at signature tower ninth floor, TowerII, South City, National Highway8 Gurgaon and is engaged in the business of general insurance. Plaintiff No.1 has filed the present suit through Ms. Malti Jaswal, its erstwhile General Manager who was principal officer of plaintiff No. 1. She was duly competent to sign and verified the plaint Suit No. 92/06 Page 2 of 30 and institute the present suit on behalf of the plaintiff No.1. During the pendency of the present suit Ms. Malti Jaswal left the services of plaintiff No.1 and Sh. Sriniwasan, the General Manager was appointed to represent the plaintiff No.1 who is conversant with the facts of the present case as per his knowledge and as per the knowledge derived from the records and books maintained by plaintiff no. 1 in its regular course of business. Plaintiff No.2 is also a company incorporated under companies Act having its registered office at the address mentioned in the plaint. The plaintiff No.2 has authorized by plaintiff No. 1 by letter of subrogation dated 25.07.2003 to sign, verify the present suit on behalf of plaintiff No. 2 and as such the present suit is being signed, verified and instituted for and on behalf of plaintiff No. 1 and as well as plaintiff No.2. The defendant is a partnership firm engaged in the business of carrying goods from place to place for charges as transporter and fleet owners. The plaintiff No. 2 vide its invoice bearin No. nd SX200530 dated 22 March, 2003 transferred stock comprising of 180 tyres, tubes and flaps from Bakoli, Delhi to Hapur, Uttar Suit No. 92/06 Page 3 of 30 Pradesh and vide invoices bearing No. SX200531, SX200532 transferred stock comprising of 180 tyres, tubes and flaps from Bakoli, Delhi to Meerut, Uttar Pradesh . Plaintiff No. 2 thus for the safe carriage and delivery of said 450 tyres, tubes and flaps entrusted the same to defendant from Bakoli, Delhi to Hapur, Uttar Pradesh vide consignment note bearing No. 050721 dated 22.03.2003 and from Bakoli, Delhi to Meerut, Uttar Pradesh vide consignment Note vide No. 050722 dated 22.03.2003. The said consignment was carried by defendant in a truck bearing registration No. UP15A 9887. The plaintiff No.2 had insured the said consignment carried in truck bearing registration No. UP15 A 9887 with the plaintiff No.1 vide Marine Insurance Open Policy No. M 00 00 00405 (Inland Transit Policy) for the period 01.08.2002 to 31.07.2003 to cover the physical loss or damage in transit to goods insured i.e tyres, tubes flaps and allied items. The defendant failed to deliver the above mentioned consignment and informed the plaintiff no.2 vide its letter dated 28.03.2003 that a truck bearing registration No. UP 15 A 9887 had been robbed near the office of plaintiff no.2 and Suit No. 92/06 Page 4 of 30 due to this reason the consignment could not be delivered at Hapur and Meerut. A report to this effect was lodged by defendant to PS Alipur vide FIR No. 94 dated 23.03.2003. The defendant being a common carrier is deemed to be the insurer of the consignment ensuring the safe transportation and delivery of the consignment entrusted to it. The defendant ought to have taken all the precautions and due care while transporting the consignment entrusted to it by plaintiff no.2 to avoid any loss. The defendant as a common carrier is liable in law to make good, the loss sustained by plaintiff no.2 and the liability of defendant is that of an insurer absolute and unconditional notwithstanding the absence of negligence. Further as per the safe transportation clause of agreement dated 23.12.2000 entered into between plaintiff no.2 and the defendant, the defendant has undertaken the responsibility of any loss to the goods due to any transit, damage, theft, pilferage, fire, road accident, short/nondelivery, strikes, riots etc and confiscation by competent authorites and to keep the plaintiff no.2 indemnified, from and against such losses, claims, demands Suit No. 92/06 Page 5 of 30 etc. Plaintiff no.2 lodged its claim with the defendant for the loss of 450 tyre tubes and flaps due to the negligence on the part of the defendant in taking adequate safeguards to protect the goods and vide its letter dated 28.03.2003, demanded from defendant a sum of Rs. 12,88,390/ , the cost of 450 tyres, tubes and flaps. The defendant though vide its letter dated 28.03.2003 admitted the factum of loss of consignment entrusted to it but failed to settle the claim of plaintiff no.2. The above consignment carried in the truck bearing No. UP15 A 9887 was insured with plaintiff no.1 against all physical loss and damage in transit to the goods insured for consideration, the plaintiff no.2 lodged its claim with plaintiff no.1 for the loss of consignment since the defendant failed and neglected to settle the claim of plaintiff no.2, plaintiff no.1 as insurer settled the claim of plaintiff no.2 and plaintiff no.1 towards the settlement of entire claim of plaintiff no.2 has indemnified the plaintiff no.2 by paying the insured value of the consignment i.e a total sum of Rs.12,78,390/ against receipt dated 25.07.03. Plaintiff No.2 in consideration of the settlement of its entire claim subrogated all Suit No. 92/06 Page 6 of 30 its rights and remedies in favour of plaintiff No.1 by executing the letter of subbrogation dated 25.07.2003 in favour of the plaintiff No.1. Plaintiff No.2 by the said letter of subrogation had assigned, transferred and abandoned all their actionable rights, title and interest in the goods and proceeds thereof to the extent provided by law in favour of plaintiff No.1. The plaintiff no.1 has now stepped into the shoes of plaintiff no.2 and become entitled to receive the amount from defendant. The defendant failed to settle and pay the claimed amount to plaintiff no.2 despite repeated reminders, plaintiff no.1 who has settled the claim of plaintiff no.2 has now become entitled to receive the claim amount from the defendant alongwith an interest @ 18% per annum from the due date of the payment till the date of actual payment. As the defendant has failed to pay the claimed amount to plaintiff no.2, the plaintiffs thus got issued through their advocate a demand notice dated 23.02.2004 demanding from defendant a sum of Rs. 12,78,390/ being the amount paid by plaintiff no.1 to plaintiff no.2 as insured value of the consignment alongwith an interest @ 18% per annum. The Suit No. 92/06 Page 7 of 30 defendant however failed to comply with the notice despite receipt of the same by registered AD. Hence the present suit.
2. The suit has been contested by the defendant who in his WS has taken the preliminary objections inter alia that there was no privity of contract between plaintiff no.1 and defendant and no statutory notice as required under the carriers Act was ever served on the defendant within the stipulated period of six months. Objection has also been taken that the suit is bad for material particulars as it does not disclose the total amount of Marine Insurance Policy and also total amount of invoices issued and utilized by plaintiff No.2 w.e.f 01.08.2002 to 23.03.2003 i.e after the date of issue of consignment notes by the defendant. Objection has also been taken that the suit is bad for nonjoinder of necessary party i.e the insurer of the truck No. UP15 A 9887.It is also stated that the letter of subrogation collusively issued by plaintiff No.2 in favour of plaintiff no.1 does not vest any authority or power to plaintiff No.1 to institute the suit on behalf of plaintiff No.2 and as such in the absence of plaintiff no.2, the suit is liable to be dismissed. On merits, the Suit No. 92/06 Page 8 of 30 defendant has generally denied the avernments made in the plaint. It is however admited that truck No UP 15 A 9887 had been robbed near the office of plaintiff no.2 and a report to that effect was lodged by the driver of truck with PS Alipur, on 23.03.203. It is also stated that defendant is a common carrier and had taken all the precautions and due care in transporting the consignment which a man of ordinary prudence might have taken under the similar circumstances. It is also pleaded that both the plaintiffs have colluded with each other to extract claim amount with malafide intention and with some ulterior motive and that is why plaintiff no.1 without obtaining the complete details of the invoices alongwith their value issued during the policy period and without proper verification of coverage of risk, settled the entire claim of plaintiff no.2 and obtained the letter of subrogation from plaintiff no.2 with the sole objective of receiving the amount of claim from defendant. The receipt of the notice has not been denied. It is however submitted that notice of demand dated 23.02.2004 was got served on the defendant after the statutory period of six months and in the absence of Suit No. 92/06 Page 9 of 30 proper notice, the suit under Carrier's Act is not maintainable. It is denied that the defendants, its servants,agents were negligent and careless while loading and unloading the goods. It is also stated that though there was no valid and effective agreement in force between plaintiff no.2 and the defendant yet the plaintiff no.2 had arbitrarily and forcibly deducted Rs. 1,98,000/ from the freight charges. The defendant has also claimed the plea of set off with regard to said amount of Rs. 1,98,000/ forcibly deducted by plaintiff no.2 from the freight charges. In the replication, the plaintiff has reaffirmed the contents of the WS and reaffirmed its claim. It is stated that required notice was duly served on defendant which has been deliberately denied by the defendant.
3. On the pleadings of the parties following issues were framed for consideration on 22.03.2007:
i)Whether the plaintiff is entitled to claim any amount from the defendant, if so what amount it is ?OPP
ii)Whether the plaintiff is entitled to claim interest, if so, at what rate on what amount and for what period?OPP Suit No. 92/06 Page 10 of 30
iii)Whether there is no privity of contract between plaintiff no.1 and defendant, if so its effect?OPD
iv)Whether the suit is bad for nonjoinder of necessary parties?OPD
v)Whether the plaintiff has no cause of action?OPD
vi)Whether the suit is bad for statutory notice?OPD
vii)Whether any amount is liable to be set off, as mentioned in the additional pleas, if so, its effect?
viii) Relief.
An additional issue was also framed on application U/o 14 Rule 5 CPC moved on behalf of defendant on 30.11.2010 i.e (Vii A)"Whether the suit has been instituted by duly authorised person?OPP"
4. In order to establish its claim, affidavit of Shri G. Vinay Prakash, Senior Executive (Legal) of the plaintiff has been filed in evidence which is Ex. PW1/A. On the other hand, on behalf of defendant affidavit of Shri Tarun Suri, partner of the defendant has been filed which has been tendered as DW1/A.
5. I have thoroughly gone through the testimony of witnesses Suit No. 92/06 Page 11 of 30 and perused the record. I have also given the thoughtful consideration to arguments addressed by ld. Counsel for the parties. My findings on various issues are as under: Finding on Issue No.3
6. Ld counsel for defendant has argued that there was no agreement between plaintiff No.1 and defendant and the agreement if any was between plaintiff no.2 and defendant. Thus the suit is liable to be dismissed on this ground. This is a suit filed by insurance company after having paid the insurance claim to the insured on the basis of subrogation letter issued by insured in favour of insurer i.e plaintiff no.1. I rely on the judgment of Hon'ble High Court of Delhi in New India Insurance Company Ltd Vs Raman Roadways & Others 176 (2001) DLT
381. In the cited case also, in the similar circumstances, letter of subrogation was issued in favour of the plaintiff and it was held that the plaintiff is entitled to sustain an action against defendant no.1 & 2. It was held that common carrier's liability law is absolute and is akin to that of an insurer. The plaintiff is entitled to seek recompense from defendant no.1 and 2, having stepped Suit No. 92/06 Page 12 of 30 into the shoes of defendant no.3 and the stand taken by defendant no.1 and 2 that there is no privity of contract between plaintiff and defendant no.1 and 2 is liable to be rejected at the threshold. It was held that the suit is maintainable in the eyes of law and liability of defendant no.1 ;and 2 being absolute, they can not wriggle out of it. In view of the law laid down by Hon'ble High Court, even if there is no direct privity of contract between plaintiff no.1 and defendant, on the basis of subrogation letter, the suit is maintainable and the objection taken by the defendant is liable to be rejected. Issue no.3 is thus decided in favour of plaintiff and against the defendant. Finding on Issue No.4
7. The defendant has taken the objection that the insurer of the truck bearing registration NO. UP 15 A 9887 was insured with M/s New India Assurance Company Ltd, Meerut on the date of incident, the insurer of the truck, in which the goods are carried, is thus a necessary party. The objection is not tenable since agreement on the basis of which the plaintiff No.1 has filed the present claim was between plaintiff no.2 and the defendant. The Suit No. 92/06 Page 13 of 30 insurer of the truck, which was robbed of the goods has nothing to do with the said agreement. In New India Assurance Company Ltd Vs Raman Roadways (Supra) also it was held that the driver for the purpose of civil suit was neither a proper nor a necessary party. Thus, in my view neither the driver of the truck nor the insurer are necessary parties to the suit. Issue No.4 is decided against the defendant and in favour of the plaintiff. Finding on Issue No.5
8. The onus to prove the said issue had been placed on the defendant. The defendant however has failed to explain as to how the suit of plaintiff is without any cause of action. The plaintiff no.1 after having paid the claim to the plaintiff no.2 has sufficient cause of action against the defendant, the transporter of the goods. Issue No.5 is decided against the defendant and in favour of the plaintiff.
Finding on Issue No.6
9. The defendant has also taken the objection that no statutory notice as required under Carriers Act was ever served upon the defendants within the stipulated period of six months and as Suit No. 92/06 Page 14 of 30 such the present suit merits dismissal. The issue in question is a mixed question of law and fact. Section 16 of the Carriage by Road Act 2007 lays down "no suit or other legal proceedings shall be instituted against a common carrier for any loss, or damage to consignment, unless notice in writing of the loss or damage to the consignor has been served on the common carrier before institution of the suit and other legal proceedings and within 180 days from the date of booking of the consignment by the consignor. PW1 in his testimony deposed that plaintiff no.2 lodged a claim with the defendant for loss of 450 tyres, tubes and flaps due to negligence on part of defendant in taking the adquate safegaurds to protect the goods and vide its letter dated 28.03.2003 demanded from the defendant a sum of Rs. 12,88,390/, the cost of 450 tyres, tubes and flaps. The defendant though vide its letter dated 28.03.2003 admitted the factum of loss of consignment entrusted to it, yet it failed to settle the claim of plaintiff no.2. The copy of letter dated 28.03.2003 demanding from the defendant a sum of Rs. 12,88,390/ is Ex. PW1/8. PW1 has not been crossexamined Suit No. 92/06 Page 15 of 30 at all on the claim notice Ex. PW1/8. Ex. PW1/8 is also purported to have been duly received on 28.03.2003 itself. The goods were transported to defendant on 22.03.2003 and the claim in lieu of the loss of the consignment has been sent on 28.03.2003 i.e within six days. Even otherwise, in the present case admittedly FIR No. 94/2003 P.S Alipur, UP with regard to the robbery of the goods being transported in the truck of defendant was lodged by the servant of defendant itself on 23.03.2008. Thus the defendant otherwise also had sufficient knowledge regarding the loss of the goods. In view of above discussion, issue no.6 is decided in favour of the plaintiff and against the defendant.
Finding on Issue No.7
10. Though the defendant has taken the plea that plaintiff no.2 had arbitrary and forcibly deducted Rs. 1,98,000/ from the freight charges, and has claimed set off Rs. 1,98,000/, his plea in this regard can not be looked into since no court fees has been filed by the defendant alongwith the WS. The defendant is thus not entitled to any set off as claimed. Issue No.7 is also Suit No. 92/06 Page 16 of 30 decided against the defendant and in favour of the plaintiff. Finding on additional Issue No. 7 A
11. Ld counsel for the defendant has argued that the suit is liable to be dismissed since it has not been instituted by a duly authorised person. It is argued that initially the suit was filed by Ms. Malti Jaswal and subsequently Shri S. Srinivasan, Deputy General Manager was allegedly appointed as an attorney in place of Ms. Malti Jaswal. It is argued that no authorisation in favour of Ms. Malti Jaiswal or Shri S. Srinivasan has been filed on record by the plaintiff. Ld counsel has also placed reliance on the judgment of Hon'ble Delhi High Court in "Lucas Indian Services Ltd. Vs Sanjay Kumar Aggarwal" 2010 (173) DLT 438 in support of his arguments. The relevant provision regarding suits by and against corporations is Order 29 Rule 1 which lays down "In suits by or against the corporations, any pleading may be signed and verified on behalf of corporation by the secretory or by Director or any other officer of corporation who is able to depose to the facts of the case". Further, Order 6 Rule 14 of CPC lays down that every pleading shall be signed by the party Suit No. 92/06 Page 17 of 30 or his pleader provided that where a party is, by reason of absence or other good cause, unable to sign the pleadings, it may be signed by any person duly authorised by him to sign the same or sue or defend on his behalf. PW1 testified that Shri S. Srinivasan is authorised and competent to institute the suit and he had seen Shri S. Srinivasan signing the documents in the usual course of business and identity his signatures on the plaint. The certified true copy of authorisation letter in favour of Shri S. Srinivasan is Ex. PW1/1. It may also be pointed out that the plaint was allowed to be amended vide orders dated 24.04.2009 on an application moved on behalf of the plaintiff for incorporating the fact that Ms. Malti Jaswal the earlier Principal Officer of the plaintiff had left the services of plaintiff and Shri S. Srinivasan, the General Manager Legal of plaintiff was authorised to represent the plaintiff company. After the amendment of the plaint, the authorisation in favour of Ms. Malti Jaswal need not be proved. During crossexamination of PW1, it came on record that Ex. PW1/1 is the board of resolution passed in favour of Shri Anthony Jacob and the extract of Suit No. 92/06 Page 18 of 30 minutes of meeting Ex. PW1/D1 did not confer the power of Shri Antony Jacob to institute the present suit or delegate his power to other officer. A perusal of Ex. PW1/D1 reveals that vide the minutes of meeting of board of Directors dated 06.05.2004, Mr. Antony Jacob, Managing Director was authorised to exercise all the powers and functions for and on behalf of the company as detailed in the power of attorney initialled by the chairman for the purpose of identification. The plaintiff however did not produce on record the power of attorney of Shri Antony Jacob. Ld counsel for the plaintiff has relied on the judgment of Hon'ble Supreme Court in United Bank of India Vs Naresh Kumar and Others 1996 (vii) AD SC 208 whereby the appeal against the dismissal of the suit was allowed and it was held " the court has to be satisfied that Shri N.K. Rohatagi put sign on plaint on behalf of appellant. The suit had been filed in the name of appellant company; full amount of the court fee had been paid by the appellant bank; documentary as well as oral evidence had been lead on behalf of appellant in the trial of the suit before the SubJudge, Ambala had continued Suit No. 92/06 Page 19 of 30 for about two years. It is difficult in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the suit. The only reasonable conclusion which can come is that Shri Rohatagi must have signed the plaintiff and in any case it must be held that appellant had ratified the action of Shri L.K. Rohatagi in signing the plaint and thereafter in continuing with the suit." It was further held "in addition thereto and de hor Order 29 Rule 1 of CPC, as company is juristic entity, it can duly authorise any person to sign the plaint or WS on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the CPC. A person may be expressly authorised to sign the pleadings on behalf of the company for example by Bord of Directors passing the resolution to that effect or by power of attorney being executed in favour of any individual. In absence thereof and in cases where the pleadings have been signed by one of its officers, a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be expressed or implied. The court can on the basis of evidence Suit No. 92/06 Page 20 of 30 on record and after taking all circumstances of the case, specially with regard to conduct of trial, come to conclusion that corporation had ratified the act of signing of the pleadings by its officer." Hon'ble Supreme Court was of the view that the Courts below could have held that Sh. L.K. Rohatagi must have been empowered to sign the plaint on behalf of appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that appellant bank must have ratified the action of Sh. L.K. Rohatagi in signing the plaint. If for any reason, whatsoever, the courts below were still unable to come to this conclusion, then either the appellate courts ought to have exercised their jurisdiction U/O 41 Rule 27 (1) (b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Sh. L.K. Rohatagi or to any other competent person to be examined as witness in order to prove ratification of the authority of L.K. Rohatagi to sign the same. Such a power should be exercised by the court in order to ensure that injustice is not done by rejection of a genuine claim.
Suit No. 92/06 Page 21 of 30
It is also pertinent to mention that at the final stage, Ld counsel for the plaintiff also placed on record the GPA executed by the Board of Directors and signed by the Chairman in favour of Mr. Antony Jacob which authorises Mr. Antony Jacob to sue, prosecute and defend all actions and proceedings for and against the company and for the purpose, to sign and verify vakalatnamas, plaints, WS, petitions, claims, objections, memorandum of appeal and petitions and applications of all kinds and to file them in any such court or offices for the purpose to appoint and instruct or dispense any advocates, vakil, pleader, solicitor or other legal practitioner and to substitute any other instead, if necessary. Ex. PW1/D1 also authorises Mr. Antony Jacob to subdelegate the powers to other exectives and other officers of the company. Even if the general power of attorney placed on record at the final stage is not considered, the present suit is being deligently perused by the plaintiff for last more than 5 years which leads to an inference that Sh. S. Srinivasan was duly authorised to file the present suit. Ex.PW1/1 executed by Sh. Antony Jacob, the Managing Suit No. 92/06 Page 22 of 30 Director, which is Ex.PW1/1 duly authorises Sh. S. Srinivasan to sue, prosecute and defend all the actions and proceedings for against the company and for the purpose to sign and verify Vakalatnamas, plaints, written statements, petitions, claims and objections, memorandum of appeal and petitioner and applications of all kinds and to file them in any such courts or offices and for the purpose to appoint and instruct or dispense any advocate, pleader, Solicitor or other legal practitioner and to substitute any other instead, if necessary. The judgment cited by Ld. Counsel for defendant in Lucas Indian Services Ltd. Vs. Sanjay Kumar Aggarwal (Supra) is not applicable to the facts and circumstances of the present case since in the cited case, the resolution dated 29.11.94 was not produced whereas in the present case the plaintiff has produced the extracts of minutes of meeting dated 06.05.2004 which is Ex.PW1/D1 vide which Mr. Antony Jacob has been authorised to exercise all powers and functions for on behalf of the company as mentioned in the power of attorney signed by the chairman as well as the certified copy of authorisitation of Sh. S. Srinivasan which is Ex.PW1/1. Suit No. 92/06 Page 23 of 30 In the present case the plaintiff has also ratified the signing the amended plaint by Sh. S. Srinivasan by producing the power of attorney in favour of Sh. Antony Jacob. In view of above discussion, additional issue no. 7A is decided in favour of the plaintiff and against the defendant.
12. Finding on Issue No.1 PW1 in his testimony mainly reiterated the contents of the plaint and proved the invoices dated 22.03.2003 collectively as Ex.PW1/4 (three in number). The value of the invoices is Rs. 7,84,610/, Rs.4,63,070/ and Rs.40,710/. The carbon copy of the consignment notes of truck no. UP15K 9887 bearing no. 050721 dated 22.03.2003 and 050722 dated 22.03.2003 amounting to Rs.7,84,610/, Rs.5,03,780/ respectively with the consignor's name as Appollo Tyres Ltd. from Bakoli - Delhi to Hapur and BakoliDelhi to Meerut respectively are collectively Ex.PW1/5. PW1 testified that plaintiff No.2 had insured the said consignments carried in truck no. UP15K 9887 with plaintiff no. 1 vide Marine Insurance Open policy for the period from 1.8.2002 to 31.07.2003 to cover the physical loss or damage in Suit No. 92/06 Page 24 of 30 transit to the goods insured, the copy said policy is MarkA. The defendant failed to deliver the consignment and informed the plaintiff no. 2 vide letter dated 28.03.2003 which is Ex.PW1/6 that the truck bearing no. UP15k9887 had been robbed near office of plaintiff no. 2. A report to this effect was also lodged to PS Alipur by the defendant vide FIR No. 94 dated 23.03.2003, the copy of which is MarkB. The copy of agreement between plaintiff no. 2 and the defendant is Ex.PW1/7 and plaintiff no. 2 had lodged a claim the defendant for a loss of 450 tyres, tubes and flaps due to negligence on the part of the defendant to take adequate safeguards to protect the goods vide its letter dated 28.03.2003 and demanded a sum of Rs.12,88,390/ being the cost of goods, the copy of letter is Ex.PW1/8. Since the defendant failed and neglected to settle the claim of plaintiff no. 2, the plaintiff no. 1 being insurer settled the claim of plaintiff no. 2 by paying the sum insured of consignments to the tune of Rs.12,78,390/ against the receipt dated 25.07.2003. The discharge voucher dated 25.07.2003 is Ex.PW1/9. The plaintiff no. 2 then authourised plaintiff no. 1 vide letter of subrogation Suit No. 92/06 Page 25 of 30 dated 25.07.2003 to sign and verify the present suit on behalf of plaintiff no. 2, the original letter of subrogation is Ex.PW1/3. The defendant despite repeated requests and reminders and the letter dated 30.08.2003 issued by plaintiff no. 1 to defendant and duly received by the defendant, failed and neglected to make the payment to plaintiff no. 1, the office copy of letter dated 30.08.2003 and original duly signed AD are collectively Ex.PW1/10. The plaintiff no. 1 also issued a legal notice dated 23.02.2004 to defendant, the legal notice alongwith AD card duly received by the defendant is Ex.PW1/11. The defendant has mainly contested the case the plaintiff no. 1 on the ground that there was no negligence on the part of defendant and the goods could not reach the destination since they were robbed on the way. The defendant has also contested the claim on the ground that plaintiff no. 1 gave the amount to plaintiff no. 2 without proper investigation of the claim and in collusion with plaintiff no. 2.
The plea with regard to the lack of negligence is not sustainable. As per terms and conditions of the agreement Suit No. 92/06 Page 26 of 30 between plaintiff no.2 and defendant the parties have agreed that the contractor will ensure the safe delivery of goods in its original packing and also take necessary precautions against any damage to goods. The contractor shall be responsible for any loss to the goods due to any transit damage, theft, pilferage, fire, road accidents, short/nondelivery, strikes, riots etc. and confiscation by a competent authority and shall keep the company indemnified of, against such losses and from such losses, claims, demands etc. In Patel Roadways Ltd. Vs. Birla Yamha Ltd. (2000) 4 SCC 91, it was held that the common carrier for loss of or damage to goods entrusted to it for transportation is absolute, like that insurer and is subject to the only exception of loss or damage having being caused due to act of God. In view of section 9 of the Carriers Act, negligence in the part of carrier need not be established by complainant/owner of goods. In the present case the goods were not delivered at the destination since the truck of defendant, which was carrying the goods was robbed. Robbery can not be termed as act of God. Even as per the terms and conditions of the agreement, Suit No. 92/06 Page 27 of 30 defendant is responsible for loss of goods due to theft. It has also been argued that plaintiff no.1 has paid the claim to plaintiff no.2 without any proper investigation in collusion with plaintiff no.2. The contention of Ld. Counsel for defendant in this regard is also not sustainable since it is within the knowledge of defendant that the goods transported through its truck was robbed on the way and thus the goods did not reach at the destination.
13. The value of the goods transported through defendant has also been mentioned in the consignment notes dated 22.03.2003 which are collectively Ex.PW1/5. The value of the goods has also been mentioned in the invoices Ex.PW1/4 (collectively). Thus, there is no dispute with regard to the value of the goods consigned to defendant. In the facts the plaintiff no.1 need not prove the internal investigation conducted by it before making the payment of insurance claim. The plaintiff no.1 has sufficiently established payment of insurance claim of Rs.12,78,390/ to plaintiff no.2 vide the discharge voucher Ex.PW1/9. After payment of the claim to plaintiff no.2, plaintiff Suit No. 92/06 Page 28 of 30 no.1 has stepped into the shoes of plaintiff no.1 vide subrogation letter Ex.PW1/3 duly executed by plaintiff no.2 in favour of plaintiff no.1. In view of the subrogation letter and agreement between the plaintiff no.2 and the defendant, plaintiff No.1 is entitled to reimbursement of the claim amount of Rs.12,78,390/ from the defendant. Issue no.1 is accordingly decided in favour of the plaintiff and against the defendant. Finding on Issue No.2
14. Plaintiff no.1 has also claimed an interest @18% per annum on the said amount from 22.03.2003 to 20.03.2006 i.e. the filing of suit and also pendentelite and future interest at the said rate. There is no agreement with regard to payment of any interest in the agreement dated 23.12.2000, executed between plaintiff no.2 and defendant. It only lays the penalty clause vide which a penalty of Rs.150 per truck per day for delay upto 5 days and Rs.300/ per truck per day in case beyond 5 day is imposed on the contractor. It also lays down in the event of any short/nondelivery, the company will recover the value of such goods from the contractor's bills prevailing net dealer price of Suit No. 92/06 Page 29 of 30 the products plus 15% to cover freight, administrative and other incidental expenses. Plaintiff no.1 has claimed the interest w.e.f. 22.03.2003 whereas the claim has been paid to plaintiff no.2 on 25.07.2003. No interest has been paid to plaintiff no.2 by plaintiff no.1 thus, it is not entitled for any interest at all w.e.f. 22.03.2003 to 25.07.2003. Further, the legal notice has been sent to defendant on 24.02.2004 and claimed interest @ 18% per annum . Considering that there is no agreement with regard to rate of interest, I award an interest @9% per annum on the principal amount of Rs.12,78,390/ to plaintiff no.1 w.e.f. date of filing the suit till its realisation.
Relief.
In view of my findings on the aforesaid issues, suit of the plaintiff is decreed for a sum of Rs.12,78,390/ along with an interest @ 9% per annum w.e.f. date of filing of suit till its realization. Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 06.08.2011 ADDL. DISTRICT JUDGE
CENTRAL9: DELHI
Suit No. 92/06 Page 30 of 30
Suit No. 67/06
03.08.2011
Present: None.
No time left for orders.
Put up for orders on 06.08.2011.
(SUKHVINDER KAUR)
ADDL. DISTRICT JUDGE
CENTRAL9: DELHI.
06.08.2011
Present: None.
Vide separate judgment,
suit of the plaintiff is decreed for a sum of
Rs.12,78,390/ along with an interest @ 9% per annum w.e.f. date of filing of suit till its realization. Decree Sheet be prepared accordingly. File be consigned to Record Room.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGE CENTRAL9: DELHI.
Suit No. 92/06 Page 31 of 30