Delhi District Court
Iffco Tokio General Insurance Company ... vs M/S Dolsun Containers Pvt. Ltd. (Kota ... on 13 December, 2019
IN THE COURT OF SH. SANJEEV KUMAR-II, ADDITIONAL
DISTRICT JUDGE-04, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI.
Civil Suit No. 7025/16
1. IFFCO Tokio General Insurance Company Ltd.
2nd Floor, 10, Shaheed Jeet Singh Marg,
FAI Building, Qutub Institutional Area,
New Delhi-110067.
Through its Attorney ...........Plaintiff
2. M/s Samtel Colour Ltd.
Village Chhapraula, Bulandsahar Road,
Ghaziabad, U.P.
Through its regd. Office at 52, Community Centre,
New Friends Colonly, New Delhi,
Through the plaintiff No.1. ..........Co-Plaintiff
Versus
M/s Dolsun Containers Pvt. Ltd. (Kota Branch)
Through its registered office at:
H-17C, Saket, New Delhi-110017.
Through its Manager/Director ...........Defendant
Date of institution of the suit : 02.05.2012
Date reserved for judgment : 25.11.2019
Date of pronouncement of judgment :13.12.2019
JUDGMENT
1. This is a suit for recovery of Rs.6,92,950/- alongwith interest @ 12 C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 1/32 percent filed by the plaintiffs against the defendant.
2. The brief facts of the case is that the plaintiff No.1 is a Limited General Insurance Company, duly incorporated under the Indian Companies Act and carrying on the business of general insurance and having its branch/divisional office amongst other places, at Customer Service Center 2nd Floor, 10, Shaheed Jeet Singh Marg, FAI Building, Qutub Institutional Area, New Delhi-110067. Mr. Rajeev Chaudhary (Vice-President, Claims) being the attorney of the plaintiff No.1 is fully authorized to sign, verify and institute the present case for and on behalf of the plaintiff No.1. The suit is being filed, signed, verified by the duly authorized person.
3. Further case of the plaintiffs is that plaintiff No.2 is a manufacturer and supplier of Colour Picture Tubes to the various cities in India under the name and style of M/s Dolsun Containers Pvt. Ltd., and their goods are being supplied generally by roads. The plaintiff No.2 being the necessary party have been impleaded as co-plaintiff (non-claimant). The defendant is a common carrier of goods undertaking business and is engaged in the transportation of goods of customers, including plaintiff No. 2, from one place to another for hire and reward. The plaintiff C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 2/32 No.2/consignor had booked and transferred their stock from Ghaziabad to its stockist at Kota (Rajasthan). The consignment of colour picture tunes containing 21" Colour Picture Tubes 538 No., 21" Panel Ultra Slim 788 nos. and 21" Funnel Ultra slim-19 Nos through the defendant carrier vide its truck No. RJ 20GA 1576 under GR No. 052 dated 11.05.2011 and against Invoice No. 201101154 valued Rs. 3,24,696/- 201101155 valued Rs. 8,310/- and 201101160 valued Rs. 5,13,778/- all dated 11.05.2011. The freight charges were paid at higher rate to the defendant for covering the transit losses. The defendant has failed to deliver the said goods in safe and sound condition to the consignee as the truck carrying the consignment reported met with an accident with a bullock-cart enroute on 12.05.2011 at Jolly Gaon, Zewar Road, Secunderbad, U.P. resulting into the death of a person and injuring the other person and the truck overturned alongwith confinement. Due to the said accident, the goods were damaged/broken as such 804 out of 1335 numbers items were delivered in damaged conditions. In this regard, an FIR for rash and negligent driving under Section 279/337/338/304-A/407 of the Indian Penal Code was registered against the truck driver at Police Station Secundrabad, Distt. Bulandsahar, UP on 12.05.2011, resulting that the plaintiff No.2 suffered the loss to the tune of Rs. 6,92,950/- by deducting C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 3/32 of salvage value and Rs. 10,000/- on account of excess clause as per terms and conditions of the policy, as assessed by the Surveyor and Loss Assessor M/s Ajay Chopra Associates.
4. Further case of plaintiffs is that the plaintiff No.2 served a monetary claim dated 23.05.2011 upon the defendant on 25.05.2011 by registered post for a sum of Rs. 7,33,000/- to compensate the plaintiff No.2 as required under Section 16 of the Carriage By Road Act, 2007 (in short "C.R. Act, 2007") as well as Section 10 of Carriers Act, 1865 and Claim Bill for a sum of Rs. 6,92,950/- was raised with the plaintiff's company No.1, as insurance claim. The defendant avoided the same on one or the other pretext and they instead of settling the claim of the plaintiff No.2, issued Damaged/Shortage Certificate dated 02.06.2011. The plaintiff No.1 considering the Surveyor Report as well as Damaged/Shortage Certificate issued by the defendant, settled and passed the claim of the plaintiff No.2 for a sum of Rs. 6,92,950/- against total loss, deducting by Rs. 28,740/- as salvage value + Rs. 10,000/- on account of excess clause as per the terms and conditions of the policy. The said payment was paid to the plaintiff No.2 vide Cheque No. 819814 of Deutsche Bank, New Delhi against the insurance claim. As such the consignment in question was insured with the plaintiff No.1 vide its C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 4/32 Marine Open Policy No. 21615278. The plaintiff No.2 in lieu of aforesaid payment, executed a letter of subrogation in favour of the plaintiff's company No.1 as provided under Section 79 of Marine Insurance Act, by abandoning, transferring and assigning all their actionable rights, titles etc. in favour of the plaintiff No.1, to enable them to recover the same from the defendant, which they have already paid to the plaintiff No.2. Therefore, the plaintiff No.1 is entitled to claim and recover the aforesaid amount from the defendant, as provided under Sections 8, 9 & 10 The Carriers Act and Section 10, 12 & 16 of The Carriage by Road Act, 2007. Therefore, the defendant is liable to make good the aforesaid loss, caused during transit of the goods undertaken by the defendant, as per the provisions laid down under the above said Acts as the loss were caused due to the negligence of the defendant and their employees etc. Since the defendant has failed to deliver the said consignment in safe and sound condition to the consignee. Therefore, it is statutory and presumptive proof of negligence on the part of the defendant and/or its employees etc.
5. Written statement was filed on behalf of defendant wherein the defendant disputed and denied the contents of plaint. It is stated in the written statement that the present suit of the plaintiff is malafide, C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 5/32 misconceived and devoid of material particulars. The plaintiff is guilty of gross misrepresentation and suppression of material, true and correct facts. As such, the present suit of the plaintiff is liable to be dismissed with exemplary cost. The defendant is a common carrier and the plaintiff No.2 hired the services of the defendant for transportation of Colour Picture Tubes from its Ghaziabad and Kota factory to various places and accordingly entered into a contract dated 16.08.2010. One of the freight vehicle bearing registration No. RJ 20 GA 1576 carrying the good of the plaintiff No.2 in terms of the aforesaid contract met with an accident on 12.05.2011 at around 12:30 midnight on Zewar Road, Sikandrabad, U.P. As per the provisions of law governing the law of carriage of freight by vehicle, the said vehicle was duly insured with the National Insurance Company under Goods Carrying Commercial Vehicle (Open) Policy vide policy No.370803/31/10/6300009209 and under Carrier's Legal Liability Policy vide policy No. 370803/46/10/9700000245, as such, the said vehicle was insured against all the losses caused in case of an accident including damages/loss of goods in transit. The defendant, immediately after the aforesaid accident, informed the National Insurance Company about the said accident and requested for immediate spot survey vide letter dated 12.05.2011. The said information was also given to the C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 6/32 plaintiff No.2 in terms of the aforesaid contract. Thereafter, the plaintiff No.2 issued notice dated 23.05.2011 for mandatory claim under carriers Act against the defendant and requested for issuance of the damage certificate for the loss of goods in the said accident. The defendant accordingly, without prejudice, issued Damaged/Shortage Certificate dated 02.06.2011. In the said Certificate, it was specifically mentioned that the goods were transported at owner's risk and the certificate was issued at the request of the plaintiff No.2 for the purpose of lodging a claim with the insurance as material was damaged due to accident which was beyond control of the defendant. The suit of the plaintiff is bad for misjoinder and non-joinder of parties as the National Insurance Company Ltd is proper and necessary party to the present suit in view of the insurance polices taken from the National Insurance Company under Goods Carrying Commercial Vehicle (Open) Policy vide policy No. 370803/31/10/6300009209 and under Carrier's Legal Liability Policy vide policy No. 370803/46/10/9700000245. Therefor, if the plaintiffs are entitled for any amount, as alleged in the present suit or at all, the same has to be paid by the aforesaid National Insurance Company Ltd. and not by the defendant.
6. In the Replication, the plaintiff has denied the contents of the C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 7/32 written statement. Plaintiff has reiterated & reaffirmed the contents of the plaint.
7. From the pleadings of the parties, the following issues were framed on 27.01.2017.
ISSUES
1. Whether the plaintiff is entitled for the suit amount, as prayed for? OPP
2. Whether the plaintiff is entitled to the interest, if so, at what rate and for which period?
3. Relief.
8. In support of its evidence, the plaintiff examined one witness, namely, Sh. Manwendra Singh (PW-1). PW-1 tendered his evidence by way of affidavit Ex.PW1/A and reiterated and reaffirmed the contents of the plaint in his affidavit. He has relied upon following documents:
1. Ex. PW1/1 is tax invoice cum delivery challan dated 11.05.2011.
2. Ex. PW1/2 is tax invoice cum delivery challan dated 11.05.2011.
3. Ex. PW1/3 is tax invoice cum delivery challan dated 11.05.2011.
4. Ex. PW1/4 is goods receipt dated 11.05.2011.
5. Ex. PW1/5 is survey report dated 06.06.2011.
6. Ex. PW1/6 is notice for monetary claim dated 23.05.2011.
7. Ex. PW1/7 is claim bill dated 08.06.2011.
8. Ex. PW1/8 is damaged/shortage certificate dated 02.06.2011.
C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 8/32
9. Ex. PW1/9 is discharge voucher dated 21.06.2011.
10. Mark 'A' is the copy of bank slip.
11. Ex. PW1/11 is Certificate under Section 65B of Indian Evidence Act.
12. Ex. PW1/12 is letter of subrogation.
13. Ex. PW1/13 is legal notice dated 29.08.2011.
14. Ex. PW1/14 is notice under Order 12 Rule 8 CPC.
15. Ex. PW1/15 is copy of Power of Attorney in favour of Sh. Rajeev Chaudhary.
9. PW-1 has deposed that the plaintiff No.2 had booked and transported their stock from Ghaziabad to its stockist at Kota (Rajasthan). The consignment of coloured picture tubes containing 21" coloured picture tubes 538 in nos., 21" panels Ultraslim -738 Nos. and 21" Funnel Ultraslim -19 Nos., through the defendant's carrier vide its Truck No. RJ 29GA 1576 (correct number is RJ 20GA 1576) under G.R. No. 052 dated 11.05.2011 (Ex.PW1/4) and against Invoice No. 201101154 valued Rs. 3,24,696/- (Ex. PW1/1), Invoice No. 201101155, valued Rs. 8,310/- (Ex. PW1/2) and Invoice No. 201101160 valued Rs. 5,13,778/- (Ex. PW1/3) all dated 11.05.2011. The freight was undertaken to be paid at its destination. The defendant has failed to deliver the said consignment in safe and sound condition to the consignee as the truck carrying the consignment reported met with an accident enroute on 12.5.2011, C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 9/32 resulting into a death of person and injuring the other person. Due to this, the goods were damaged/broken as such out of 1335 items were delivered in damaged condition. In this regard, an FIR for rash and negligent driving Under Secton 279/337/338/304A/407 of Indian Penal Code was registered against the truck driver at Police Station Sikandrabad, District Bulandhshahr, U.P on 12.05.2011, resulting that the plaintiff No.2 suffered the loss to the tune of Rs. 6,92,950/- by deducting of salvage value plus Rs. 10,000/- on account of excess clause as per terms and conditions of the policy as loss assessed by the Surveyor and Loss Assessor M/s Ajay Chopra Associates, Survey Report dated 06.06.2011 which is Ex. PW1/5. The plaintiff No.2 served a monetary claim dated 23.05.2011 (Ex. PW1/6) upon the defendant on 25.05.2011 by registered post for a sum of Rs. 7,33,000/- to compensate the plaintiff No.2 as required under Section 16 of the Carriage By Road Act, 2007 as well as under Section 10 of Carriers Act, 1865 and Claim Bill was also raised upon the plaintiff No.1 for a sum of Rs. 6,92,949.91 rounded up as Rs. 6,92,950/-, the same is Ex. PW1/7. The defendant avoided the same on one or the other pretext as they instead of settling the claim of the plaintiff No.2 issued a Damaged/Shortage Certificate dated 02.06.2011 ( Ex. PW1/8) thereby admitted the damage and loss of Rs. 7,31,690/-. C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 10/32 The plaintiff No.1 considering the Survey Report as well as Damaged/Shortage Certificate issued by the defendant, settled and passed the claim of the plaintiff No.2 for a sum of Rs. 6,92,950/- against total loss, deducted by Rs. 28,740/- as salvage value plus Rs. 10,000/- on account of excess clause as per terms and conditions of the policy as loss assessed by the Surveyor. The said payment was paid to the plaintiff No.2 vide Cheque No. 819814 of Deutche Bank, New Delhi against the insurance claim. Discharge Voucher and Bank Slip are Ex. PW1/9 & 10. Computerized copy of the Policy No. 21615278 with Certificate under Section 65B of Indian Evidence Act is Ex. PW1/11. The plaintiff No.2 in lieu of the above said payment executed a letter of Subrogation in favour of the plaintiff No.1, by abandoning, transferring and assigning all their rights, interest etc. in favour of the plaintiff No.1, to enable them to recover the same from the defendant which is Ex. PW1/12. The plaintiff No.1 through their counsel served a recovery notice dated 29.08.2011 on 30.08.2011 through registered post upon the defendant for a sum of Rs. 6,92,750/-, the same is Ex. PW1/13. The counsel for the plaintiff also served a notice under Order 12 Rule 8 of the Code of Civil Procedure upon the defendant for producing the original documents which are in possession of the defendant but the defendant has failed to do so, the C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 11/32 same is Ex. PW1/14.
10. In its defence, the defendant company examined one witness, namely, Sh. Sunil Sethi (DW-1). DW-1 tendered his evidence by way of affidavit Ex.DW1/A and reiterated and reaffirmed the contents of the Written Statement in his Evidence by way of Affidavit. He has relied upon following documents:
1. Ex. DW1/1 is Resolution dated 30.06.2012.
2. Mark 'A' is copy of Insurance Policy No. 370803/31/10/6300009209.
3. Mark 'B' is copy of Insurance Policy No. 370803/46/10/9700000245.
4. Mark 'E' is the copy of Letter dated 12.05.2011 written by the defendant to National Insurance Company.
5. Mark 'C' is the copy of Letter dated 05.06.2012 written by the defendant to National Insurance Company.
6. Mark 'D' is copy of Reply dated 12.06.2012 written by National Insurance Company to the defendant.
11. I have heard final arguments advanced by learned counsel for the parties and perused the record.
12. Sh. M.R Khan, learned counsel appearing for the plaintiff has submitted that the plaintiff no.2 had booked and transferred their stock through defendants from Ghaziabad to its stockist at Kota, Rajasthan. The C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 12/32 defendant had failed to deliver the said consignment in safe and sound condition to the consignee as the truck carrying the consignment met with an accident and en-route on 12.05.2011, due to which the goods were damaged / broken. The defendant issued a damage / shortage certificate dated 02.06.2011, thereby admitted the damage and loss of Rs.7,31,690/-. The plaintiff no.1 considering the survey report as well as damage certificate settled and passed the claim of the plaintiff no.2. The plaintiff no.2 in lieu of above-said payment, executed a letter of subrogation in favour of plaintiff no.1 by transferring and assigning all their rights interest etc. in favour of plaintiff no.1 to enable it to recover the same from the defendant. The defense of the defendant that goods were transported at owner's risk is of no consequences. The law does not required that letter of subrogation should be notarized. Section 12 of the C.R. Act, 2007 has been referred. The accident occurred due to negligence of the defendant and therefore, the defendant is liable for the loss / damages to the plaintiff no.2 and is liable towards plaintiff no.1 in view of the letter of subrogation, executed by the plaintiff no. 2 in favour of the plaintiff no.1. He has placed reliance upon the decisions i.e Nath Bros. Exim International Ltd. vs. Best Roadways Ltd. (2000) 4 Supreme Court Cases 553; Patel Roadways Ltd. vs. Birla Yamaha Ltd. (2000) 4 C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 13/32 Supreme Court Cases 91; Hussainbhai vs. Motilal AIR 1963 Bombay 208 (V 50 C 44); The Gaya Muzaffurpur Roadways Co. & Ors. vs. Fort Gloster Industries Ltd. & Anr. AIR 1971 Calcutta 494 (V 58 C 112); Indian Roadways Corporation & Ors. vs. Unneerikutty 1991 ACJ 515; Rolta India Ltd. vs. ELBEE Services Ltd. AIR 2001 Delhi 353;
13. Sh. M.A Khan, learned counsel appearing for the defendants has submitted that the suit has been filed by the plaintiffs but the plaintiff no.2 is a formal party. The goods were booked by the plaintiff no. 2 to the defendant and the truck carrying the said goods met with accident. It is mentioned in the damaged/shortage certificate Ex. PW-1/8 that "the goods were transported at owner's risk. The certificate was issued at the request of our valued party preliminary for the purpose of lodging a claim with their underwriters with whom the subject consignment is insured, as material was damaged due to accident which was beyond our control". The letter of subrogation Ex. PW-1/12 is illegal and is not as per law. The said letter is not notarized. No stamp has been affixed upon the said letter in the box given in the said letter. The name of the defendant is not mentioned in the said letter and it is not mentioned that the plaintiff no.1 has been transferred with a right to recover the suit amount from the defendant. The incident / accident is also not mentioned in the letter of C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 14/32 subrogation. There is no findings by any authority or court of law that the said accident was occurred due to negligence or fault of the defendant. The Survey report Ex. PW-1/5 is dated 06.06.2011 and it is mentioned in its clause no. 5.0 that G.R. was at owner's risk. It is also mentioned in clause no. 7.0(c) of the said report that the loss certificate was not obtained from the careers and insured advised to procure a damage certificate. The damage certificate Ex. PW-1/8 was issued prior to the survey report Ex. PW-1/5 and said damage certificate has not been proved by the plaintiffs. In clause no. 19 of survey report says that right of recovery has not been protected. After 06.06.2011, when survey report was given, no claim has been raised. Plaintiff no. 2 has not been produced. The suit has also not been signed by the plaintiff no.2. No affidavit of plaintiff no.2 has been placed on record. No evidence by way of affidavit of plaintiff no.2 has been produced by the plaintiffs. The subrogation is only for the inter policy and not for the accident. The terms and condition No. 10 of the the Goods Receipt (Ex. PW-1/4) stipulated that the company takes absolutely no responsibility for delay or losses in transit due to accident strikes or any other cause beyond its control and due to break down of vehicle on route and for the consequences there of. The plaintiffs have not lodged protest against the said terms and C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 15/32 conditions with the defendant. Learned counsel has placed reliance upon the decision, namely, Milap Carriers Transport Vs. National Insurance Company Ltd, AIR 1994 AP 24.
14. My findings on the issues are as follows :
ISSUES No.1:Whether the plaintiff is entitled for the suit amount, as prayed for? OPP.
15. It is admitted between the parties that plaintiff No.2/consignor had booked and transferred their stock from Ghaziabad to its stockist at Kota, Rajasthan through carrier i.e defendant; that the goods receipts dated 11.05.2011 (Ex.PW1/4); that defendant is a common carrier of goods and is engaged in the transportation of goods of customers from one place to another; that the defendant has failed to deliver the said goods of the plaintiff No.2 in safe and sound conditions to the consignee as the truck bearing no. RJ-20GA-1576 carrying the consignment met with an accident with a bullock-cart enroute on 12.05.2011 at Jolly Gaon, Jewar Road, Sikandrabad, Utter Prades resulting into the death of a person and injuring the other persons and the truck overturned alongwith the consignment, due to the said accident, the goods were damaged/broken as such 804 items were delivered in damaged condition; that an FIR for rash C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 16/32 and negligence driving under Section 279/337/338/304A/407 of the Indian Penal Code, 1860 was registered against the truck driver at Police Station Sikandrabad, District Bullandsehar, Uttar Pradesh on 12.05.2011; that the plaintiff No.2 suffered the loss to the tune of Rs. 6,92,950/- as mentioned in damaged / shortage certificate (Ex. PW-1/8) and as assessed by the Surveyor and Loss Assessor M/s Ajay Chopra Associates in its Surveyor Report dated 06.06.2011 (Ex. PW1/5); that Plaintiff No.2 issued notice dated 23.05.2011 for monetary claim (Ex. PW1/6) to the defendant; that defendant issued damaged/shortage certificate dated 02.06.2011 (Ex.PW1/8). The defendant has also not disputed Tax Invoice- cum-Delivery Challan dated 11.05.2011 (Ex.PW1/1), Tax Invoice-cum- Delivery Challan dated 11.05.2011 (Ex.PW1/2), Tax Invoice-cum- Delivery Challan dated 11.05.2011 (Ex.PW1/3), Goods Receipt dated 11.05.2011 (Ex.PW1/4) and Claim Bill dated 08.06.2011 (Ex.PW1/7).
16. One of the main defences of the defendant is that goods were transported at owner's risk and material had damaged in accident which was beyond the control of the defendant and the accident had not occurred due to rash or negligence of the defendant. In this regard, Learned Counsel for the defendant has submitted that there is no findings by any authority or court of law that the said accident was occurred due to C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 17/32 negligence or fault of the defendant; that the Survey report Ex. PW-1/5 is dated 06.06.2011 and it is mentioned in its clause no. 5.0 that G.R. was at owner's risk; that clause no. 19 of survey report says that right of recovery has not been protected. In order to consider the submission of learned counsel for the defendant with regard to transportation of the goods at owner's risk and no proof regarding rash or negligence of the defendant in transporting the goods and causing accident, certain provisions of the C.R. Act, 2007 and judgments passed by the Hon'ble Supreme Court of India and Hon'ble High Courts are required to be mentioned here.
17. Section 10 of The C.R. Act, 2007 reads as under :
"10. Liability of common carrier.- (1) The liability of the common carrier for loss of, or damage to any consignment, shall be limited to such amount as may be prescribed having regard to the value, freight and nature of goods, documents or articles of the consignment, unless the consignor or any person duly authorized in that behalf have expressly undertaken to pay higher risk rate fixed by the common carrier under section 11.
(2) The liability of the common carrier in case of any delay up to such period as may be mutually agreed upon by and between the consignor and the common carrier and specifically provided in the goods forwarding note including the consequential loss or damage to such C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 18/32 consignment shall be limited to the amount of freight charges where such loss, damage or delay took place while the consignment was under the charge of such carrier:
Provided that beyond the period so agreed upon in the goods forwarding note, compensation shall be payable in accordance with sub- section (1) or section 11:
Provided further that the common carrier shall not be liable if such carrier proves that such loss of, or damage to, the consignment or delay in delivery thereof, had not taken place due to his fault or neglect or that of his servants or agents thereof."
18. Hence, it is clear from the Section 10 (1) of the Section 10 of C.R. Act, 2007 that the common carrier is liable for loss of, or damaged to any consignment limited to such amount as may be prescribed having regard to the value, freight and nature of goods, documents or articles of the consignment. It is also clear from Proviso II of the Section 10 of C.R. Act, 2007 that common carrier shall not be liable if such carrier proves that such loss of, or damaged to, the consignment of delay in delivery thereof, had not taken place due to his fault or neglect or that of his servants or agents thereof. Hence, it is for the common carrier to prove that such loss of, or damaged to, the consignment or delay in delivery thereof had not taken place due to his fault or neglect or that of his servants or agents thereof. The consignor / plaintiff is not required by the C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 19/32 law to prove the fault of negligence of the common carrier or that of his servants or agents in causing loss of, or damaged to, the consignment or delay in delivery thereof.
19. Section 12 of The C.R. Act, 2007 reads as under :
"12. Conditions limiting exonerating the liability of the common carrier. - (1) Every common carrier shall be liable to the consignor for the loss or damage to any consignment in accordance with the goods forwarding note, where such loss or damage has arisen on account of any criminal act of the common carrier, or any of his servants or agents.
(2) In any suit brought against the common carrier for the loss, damage or non-delivery of consignment, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the common carrier, or any of his servants or agents.
(3)..........
Provided..........
Explanation..........."
20. Section 12(1) of the C.R. Act, 2007 also make it clear that common carrier is liable to the consignor for the loss or damaged to any consignment in accordance with the goods forwarding note where such loss or damaged has arisen on account of any criminal act of the common C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 20/32 carrier, or any of his servants or agents. Section 12 (2) of the C.R. Act, 2007 makes the clear that in any suit brought against the common carrier for the loss, damage or non-delivery of consignment, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the common carrier, or any of his servants or agents. Hence, from the Proviso II of Section 10 and Sub-section 2 of Section 12 of C.R. Act, 2007, it can be said that in a suit brought against the common carrier for the loss, damage or non-delivery of consignment, plaintiff is not required to prove the negligence or criminal act of the common carrier, or any of his servants or agents in causing loss and damage the said loss, damaged or non-delivery of consignment and further that it is for the common carrier to prove that such loss of, or damage to the consignment had not taken place due to his fault or neglect or that of his servants or agents. In this regard, following judgments can also be referred.
21. In Nath Bros. Exim International Ltd. (supra), Hon'ble Supreme Court considered The Carriers Act, 1865. In that case, learned counsel for the respondent contended that the goods were booked at 'OWNER'S RISK' and, therefore, if any loss was caused to the goods, the carrier would not be liable. The Hon'ble Supreme Court held that the expression C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 21/32 "at owner's risk" does not exempt a carrier from his own negligence or the negligence of its servants or agents.
22. The facts in case of Rolta India Limited (supra) decided by the Hon'ble Delhi High Court was that the plaintiff No.1 was awarded a contract by the Forest Survey of India, Dehradun (FSOI) for supply of installation and erection. The articles were handed over to the defendant in its capacity as common carrier. The defendant undertook the consignment by road from Delhi to Dehradun and agreed to accept the consignment from the plaintiff, consignor for consideration and also undertook to carry and deliver the complete consignment safely and in its original form without any exception at the office of FSOI. For the period of transportation the entire consignment was got insured by the plaintiff No.1 with plaintiff No.2 under Marine Policy (Cargo) for a total sum of Rs. 3,83,00,000/- to cover risk. All the equipments were loaded in four trucks owned and/or chartered and under power and control of the defendant at 11:00 p.m on 17-1-1996. On 18-1-1996 the plaintiff No.1 was informed that there was a collision of one of the truck of the defendant with another truck coming from opposite direction, due to which substantial damage to the subject packages and contents therein caused. Plaintiff No.2 made payment to plaintiff No.1 in full and final C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 22/32 settlement after receipt of final survey report. A letter of subrogation and Special Power of Attorney was executed in favour of the plaintiff No.2 by the plaintiff No.1 whereby under the provisions of Marine Insurance Act and the letter of subrogation, plaintiff No.2 were assigned and were subrogated to the rights and remedies of plaintiff No.1 in respect of the said consignments and as such plaintiff No.2 are entitled to prefer and prosecute the suit in their own names, though out of abundant caution, plaintiff No.1 is also joined as a co-plaintiff. Hon'ble Delhi High Court decreed the suit holding/observing that the common carrier is liable to pay the loss of or the damage caused to the goods accepted as carrier and the only defence available to the common carrier is that the loss or damage was not caused due to its negligence which even otherwise is assumed.
23. In Patel Roadways Ltd. (supra), Hon'ble Supreme Court held/observed in Para No. 47 that from the conspectus of views taken in the decisions of different High Courts noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer; this position is made further clear by the provisions in section 9, in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 23/32 plaintiff to establish negligence; even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act; this is also the position notwithstanding a special contract between the parties.
24. Hence, in view of Section 10 and 12 of the C.R. Act, 2007 and the judgments as referred above, I do not find any force in the submission of learned Counsel for the defendant with regard to transportation of the goods at owner's risk and no proof regarding rash or negligence of the defendant in transporting the goods and causing accident. It is for the defendant to prove that said loss of, or damage to, the consignment had not taken place due to his fault or neglect or that of his servants or agents. Defendant has failed to prove the same. It is admitted by the defendant that FIR for rash or negligence driving under Section 279, 337, 338, 304A and 407 of the Indian Penal Code was registered against the said truck driver of the defendant.
25. In respect of letter of subrogation Ex. PW-1/12, PW-1 has deposed that plaintiff No.1 considering the survey report as well as damaged certificate issued by the defendant, settled and passed the claim of the C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 24/32 plaintiff No.2 for a sum of Rs.6,92,950/- against the total loss, deducted by Rs.28,740/- as salvage value plus Rs. 10,000/- on account of excess close as per terms and conditions of the policy as loss assessed by the surveyor. The said payment was paid to the plaintiff No.2 vide Cheque no. 819814 of Deutche Bank, New Delhi against the Insurance Claim. Computerized copy of the policy No. 21615278 with certificate under Section 65B of Indian Evidence Act is Ex. PW-1/11. It is also deposed in this regard that the plaintiff No.2 in lieu of the above-said payment executed a letter of subrogation in favour of plaintiff no.1, by abandoning, transferring and assigning all their rights, interest etc. in favour of the plaintiff no.1 to enable them to recover the same from the defendants. Said letter of subrogation is Ex. PW-1/12.
26. In respect of letter of subrogation, learned counsel for the defendant has submitted that same is not validly executed and there is no mention that plaintiff No.1 has been transferred with a right to recover the suit amount from the defendant and the name of the defendant is not mentioned and further that same is not notarized.
27. Hon'ble Supreme Court in case of Economic Transport Organization, Delhi v. Charan Spinning Mills Private Limited (2010) 4 C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 25/32 SCC 114 summarized the principles relating to subrogation as follows:
"(i) Equitable right of subrogation arises when the insurer settles the claim of the assured, for the entire loss. When there is an equitable subrogation in favour of the insurer, the insurer is allowed to stand in the shoes of the assured and enforce the rights of the assured against the wrongdoer.
(ii) Subrogation does not terminate nor puts an end to the right of the assured to sue the wrong-doer and recover the damages for the loss. Subrogation only entitles the insurer to receive back the amount paid to the assured, in terms of the principles of subrogation.
(iii) Where the assured executes a Letter of Subrogation, reducing the terms of subrogation, the rights of the insurer viz-a-viz the assured will be governed by the terms of the Letter of Subrogation.
(iv) A subrogation enables the insurer to exercise the rights of the assured against third parties in the name of the assured.
Consequently, any plaint, complaint or petition for recovery of compensation can be filed in the name of the assured, or by the assured represented by the insurer as subrogee-cum-attorney, or by C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 26/32 the assured and the insurer as co-plaintiffs or co-complainants.
(v) Where the assured executed a subrogation-cum-assignment in favour of the insurer (as contrasted from a subrogation), the assured is left with no right or interest. Consequently, the assured will no longer be entitled to sue the wrongdoer on its own account and for its own benefit. But as the instrument is a subrogation- cum-assignment, and not a mere assignment, the insurer has the choice of suing in its own name, or in the name of the assured, if the instrument so provides. The insured becomes entitled to the entire amount recovered from the wrongdoer, that is, not only the amount that the insured had paid to the assured, but also any amount received in excess of what was paid by it to the assured, if the instrument so provides. "
28. In case of M/S Transway Cargo Lifters PVT. LTD. v. National Insurance Co. LTD. & Anr. (RFA No.729/2005 decided on 19.04.2016), Hon'ble Delhi High Court held/observed that applying the law regarding subrogation as observed in by Hon'ble Supreme Court in case of Economic Transport Organization (supra), the arguments of counsel for appellant / defendant of the respondents/ plaintiff having not proved C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 27/32 Letter of Subrogation, the respondent No.1 / plaintiff being not entitled to sue in its own name, no power of attorney on behalf of respondent No.2 / plaintiff to institute the suit having been proved, no witness of respondent No.2 / plaintiff having been examined, are of no avail. It was further observed :
"13. This Court, in National Insurance Co. Ltd. Vs. Mukesh Tempo Service (Carrier) MANU/DE/3196/2010 held (i) that there is no particular form of notice prescribed in the Carriers Act, 1865 and it is sufficient if carrier is informed about the loss of the goods; (ii) that Section 3 of the Act where the liability of carrier is limited, applies only to carriage of goods specified in Schedule to the Act (it is not the plea of the appellant / defendant here that the goods were scheduled goods); (iii) that as per law laid down in Patel Roadways Limited Vs. Birla Yomana Ltd.
AIR 2000 SC 1461 the liability of a carrier is absolute and referring to Section 9 of the Act it was held that it is not necessary for the plaintiff to establish negligence; (iv) reliance was placed on South Eastern Carriers (P) Ltd. Vs. Oriental F&G Insurance Co. Ltd. MANU/KE/0653/2003 where it was held that a carrier is answerable for the loss even when not C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 28/32 caused by negligence or for want of care on its part; (v) that the Insurance Co. is competent to sue in the name of insured also;
(vi) that notwithstanding the impersonal nature of testimony of witnesses of Insurance Co. and discrepancy in documents, their genuineness is established from the consignor of the carrier having not preferred any claim against the carrier for recovery of compensation for the loss of the goods. To the same effect is the another recent judgment of this Court in Road Transport Corporation Pvt. Ltd. Vs. National Insurance Co. Ltd.
MANU/DE/6854/2011 where qua objection of authority to sue having not been proved, relying on United Bank of India Vs. Naresh Kumar supra it was held that once a company such as a banking company or even an insurance company has pursued a suit to the hilt, the suit cannot be thrown out on technicalities."
29. In view of Economic Transport Organization, Delhi (supra), M/S Transway Cargo Lifters Pvt. Ltd. (supra), National Insurance Company Ltd. (supra) and Road Transport Corporation Pvt. Ltd. (supra), the submission of learned Counsel for the defendant in respect of letter of subrogation (Ex. PW1/12) are of no avail. The plaintiff has proved the letter of subrogation (Ex. PW1/12) in which Insurance Policy C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 29/32 No. 21615278 of plaintiff No.2 and claim No. 21067613 are mentioned. Therefore, by said letter of subrogation (Ex. PW1/12), plaintiff No.2 has subrogated his right in favour of the plaintiff No.1 by abandoning, transferring, assigning all their rights, interest etc. in favour of the plaintiff No.1 to enable the plaintiff No.1 to recover the same from the defendant. Plaintiffs have also proved that plaintiff No.1 settled and passed the claim of plaintiff No.2 for a sum of Rs. 6,92,950/- in view of survey report and damaged/shortage certificate. Plaintiffs have also proved that said payment was made by the plaintiff No.1 to the plaintiff No.2 vide Cheque No. 819814 of Deutche Bank, New Delhi against the said insurance claim. In this regard, discharge voucher dated 21.06.2011 and bank slip have been proved as Ex. PW1/9 and Mark 'A' respectively. A Certificate under Section 65B of Indian Evidence Act has also been proved by the plaintiff as Ex. PW1/11. Plaintiff has also proved notice for monetary claim (Ex. PW1/6) and claim Bill dated 08.06.2011 (Ex. PW1/7) and legal notice dated 29.08.2011 (Ex. PW1/13).
30. In respect of filing of plaint by the plaintiff no.2 and non-signing the plaint by the plaintiff no.2., learned counsel for the defendant has submitted that plaintiff no. 2 has not been produced and the suit has also not been signed by it; that no affidavit of plaintiff no.2 has been placed on C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 30/32 record. The submission of learned counsel for the defendants can not be accepted and in this regard judgment passed by the Hon'ble Delhi High Court in case of M/s Gati Ltd. vs. The Oriental Insurance Co. Ltd. & Anr. (RSA 196 of 2011 decided on 13.12.2011) can be referred wherein it observed/held that for filing the suit, the plaint may not be signed by all the co-plaintiffs and the same can be maintained even if the plaint has been signed and verified by one of the co-plaintiffs; that there is no rule providing that a person named as co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint which was held by the Hon'ble Privy Counsel in Mohini Mohun Das and Ors. vs. Bungsi Boodan Sah Das and Ors. (1890) ILR 7 P.C. 580 and is the established since then. In this regard, South Eastern Carriers (P) Ltd. (supra) can also be referred.
31. In view of the above discussions, Issue No.1 is decided in favour of the plaintiff No.1 and against the defendant.
ISSUES No.2: Whether the plaintiff is entitled to the interest, if so, at what rate and for which period?
32. Plaintiff has prayed in the plaint 12% interest on the decretal amount. Keeping in view the facts and circumstances of the case, I am C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 31/32 of the view that the plaintiff No.1 is entitled to interest @ 9% per annum on the decretal amount from the date of filing of the suit till its realization.
RELIEF
33. Hence, the suit of the plaintiffs is decreed in favour of the plaintiff No.1 and against the defendant for a sum of Rs. 6,92,950/- alongwith 9% interest per annum from the date of filing of the suit till its realization. Plaintiff is also entitled for the cost of the suit. Decree sheet be prepared accordingly. File be consigned to the Record Room.
Announced in the open court. (SANJEEV KUMAR-II)
Dated: 13.12.2019 Additional District Judge-04
South District, Saket Courts,
New Delhi
Digitally signed by
SANJEEV SANJEEV KUMAR
KUMAR Date: 2019.12.13
16:54:47 +0530
C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 32/32 C.S. No. 7025/16 IFFCO Tokio General Insurance Company Ltd. & Anr. vs. M/s Dolsun Containers Pvt. Ltd. 33/32