Karnataka High Court
Basavaraj Yellapa Pundi vs National Insurance Company Limited And ... on 11 February, 2005
Equivalent citations: IV(2005)ACC392
Author: Manjula Chellur
Bench: Manjula Chellur
JUDGMENT Manjula Chellur, J.
1. The appellant before this Court is the defendant before the Trial Court. The respondents are the plaintiffs 1 and 2 before the Trial Court.
2. The brief facts that led to the filing of the present appeal is as under:
The first appellant is the first plaintiff before the Trial Court. The second plaintiff executed subrogation letter in favour of the second plaintiff for recovery of Rs. 1,07,713 which came to be paid by the first plaintiff to the second plaintiff in respect of loss or damage caused to the goods insured under policy No. 602605/21/24/55/92 and declaration No. 1328. All the rights and remedies in consequence of the damage caused to the goods were assigned in favour of the first plaintiff. The second plaintiff is the consignor who was dealing in cotton as Commission Agent at APMP Yard, Saundatti. He had insured 50 docras of DCH 32 Koppas 99.70 quintals with the plaintiff No. 1, a transit insurer by paying the insurance premium for carrying the cotton goods from Saundatti to Raichur. The consignee is one M/s. Ghanshyamdas Boob, Cotton Merchants, Raichur. The insurance of the goods for Rs. 1,40,000 was taken on 10.1.1993.
3. The second plaintiff is the consignor and insured so far as the goods are concerned. Plaintiff No. 2 entrusted the said goods to the appellant-defendant who is no other than owner of the truck bearing No. CNB 6678 and is dealing in Transport Carrier Business at Bailahongal. The goods were consigned to the carrier on 10.1.1993 for taking the same to the destination so as to reach M/s. Ghanshyamdas Boob at Raichur. The said truck carrying the above mentioned cotton goods caught fire near Chikkerur village, Kowtal Taluk, Raichur District on Lingasugur-Raichur Road on 11.1.1993 at about 1.30 a.m. As a result the entire cotton goods described above was burnt in the said fire.
4. The plaintiff No. 2 the insured and the consignor approached the plaintiff No. 1 claiming damages or compensation for the loss of goods under the consignment by virtue of consignment transit policy taken from plaintiff No. 1. The amount came to be settled at Rs. 1,07,713. In this regard a letter of subrogation came to be executed on 27.5.1993 and plaintiff No. 2 also received the said amount of Rs. 1,07,713. The defendant being the Transport Carrier of the goods under consignment is alone responsible for the loss caused in the transit and liable to make good the loss or damage caused to the goods.
5. The plaintiff No. 2 also claimed the damages caused to his goods from the defendant on 20.2.1993 by issuing a notice and plaintiff No. 1 issued a notice dated 20.12.1995 demanding the amount of Rs. 1,07,713 the amount settled by the first plaintiff in favour of the second plaintiff. With these averments a suit came to be filed for recovery of Rs. 1,07,713 together with interest at 12% p.a. from 27.5.1993 till the date of realization with costs.
6. The defendant appeared and filed written statement admitting the paragraphs 1 and 2 of the plaint and he also admitted that he transported the cotton goods of plaintiff No. 2 in his public carrier truck bearing No. CNB 6678 on 10.1.1993. Regarding the accident and damage caused to the entire goods at Chikkerur village on Lingasugur-Raichur Road also admitted. According to the defendant-appellant the driver of the vehicle was holding a valid licence and there was no negligence on his part, therefore, the loss caused on account of fire was unexpected or unknown and it is not the liability of the appellant. According to him the vehicle in question was insured with Oriental Insurance Company, Bailahongal and is valid from 10.11.1992 to 25.12.1993. Therefore, for non-joinder of necessary party i.e., Oriental Insurance Company, the suit is bad According to them it is Oriental Insurance Company which has to pay the damage or loss. It also denied the liability between the plaintiff Nos. 1 and 2 and according to him he never received the intimation before the settlement. It is further contended that there was no settlement of any sort between the defendant and second plaintiff to make good the loss or damage caused during the transit of second plaintiff's goods, therefore, it is liable to pay the suit claim. If also questioned the territorial jurisdiction of the Court below. With these averments he has sought dismissal of the suit.
7. On the basis of the above pleadings the following issues were framed:
(1) Whether the plaintiffs prove that the defendant is responsible for loss of 50 docras of DCH-32 Koppas during transit?
(2) Whether the plaintiffs prove that the defendant is liable to pay Rs. 1,07,713 towards the value of 50 docras of DCH-32 Koppas?
(3) Whether the plaintiffs prove that defendant is liable to pay interest at 12% p.a. from 27.5.1993 till the date of payment?
(4) Whether the defendant proves that the suit is bad for non-joinder of Oriental Insurance Company?
(5) Whether the plaintiffs are entitled to decree prayed for?
(6) What order or decree?
Additional Issue : Whether this Court has no territorial jurisdiction to entertain this suit?
8. On behalf of the plaintiffs, PW 1-Administrative Officer of the plaintiff Insurance Company was examined and got marked 18 documents and on behalf of the defendant DW 1 i.e. the defendant himself was examined and two documents i.e., Exs. D1 and D2 were marked.
9. So far as the territorial jurisdiction, the Court below has held that the Trial Court i.e., Civil Judge (Sr. Dn.) Bailahongal has territorial jurisdiction to try the suit. The Court below by referring to Section 20 of CPC held Court at Bailahongal also got jurisdiction to try the suit as it comes within the jurisdiction of Kowtal Taluk where the accident had taken place. So far as these issues are concerned, the Court has held all the issues in favour of the plaintiff and decreed the suit for recovery of Rs. 1,07,713 with interest at 6% p.a. only from the date of suit in favour of the plaintiff No. 1. Aggrieved by the said judgment and decree, the present appeal is filed by the appellant-defendant carrier.
10. According to the learned Counsel for the appellant, the powers exercised by plaintiff No. 1 whose suit was based on the alleged subrogation letter at Ex. P1 is nothing but a power of attorney on behalf of the second plaintiff. In the absence of plaintiff No. 2 entering the witness box and explaining the facts, any amount of evidence on behalf of the plaintiff No. 1 will not cure the defect and, therefore, in view of the judgment reported in 2004 AIR SCW 7064, the suit deserves to be dismissed. He further questioned the maintainability of the suit without requisite notice under Section 10 of Carriers Act. Though he raised defence under Sections 8, and 9 of the Carriers Act, the learned Counsel for the appellant fairly submitted that he would restrict his arguments so far as Section 10 of the Act.
11. According to the learned Counsel for the plaintiff No. 1 by virtue of subrogation letter at Ex. P1, he steps into the shoes of second plaintiff, therefore, all the rights and liabilities, of second plaintiff got assigned to the first plaintiff by virtue of Ex. P1. Under the Carriers Act, he further contends that he need not establish the negligence or otherwise of the driver of the carrier and, therefore, there cannot be any finding or opinion so far as Section 9 is concerned. According to him even otherwise the evidence let in before the Trial Court would indicate that the accident was not one arising out of Act of God, but on account of the negligence on the part of the carrier. He also refers to several decisions in order to sustain the judgment and decree of the Court, they are:
1. Karnataka Transport Corporation v. National Insurance Company Limited .
2. The Oriental Insurance Co. Ltd. and Anr. v. Vaishali Transport Forwarding Agency 1991 (3) KLJ 198.
3. Inter State Transports v. Pfizer limited .
4. General Manager, Southern Railway v. Agarwal Traders 2001 ACJ 184.
5. Oriental Insurance Co. v. Prakash Road Lines (P) Ltd. .
12. So far as additional issue is concerned, as already stated above, there is no dispute and we need not consider the same. So also with regard to issue No. 4, the contention is that suit is bad for non-joiner of necessary party i.e., the Oriental Insurance Company, the insurer of the truck.
13. Admittedly, the accident has occurred between 10.1.1993 and 11.1.1993 at about 1.30 a.m., in the mid-night. According to the defendant the truck along with the goods were completely burnt and he received the compensation of Rs. 1,60,000 from Insurance Company i.e., Oriental Insurance Company. He has also admitted categorically that the risk of the consignee is not covered under the policy of the fruck. However, in order to know the terms and conditions of that policy covering the carrier, the said document is not produced. In that view of the matter the Trial Court was right in saying Oriental Insurance Company was not a necessary party to the proceedings.
14. According to the plaintiffs, plaintiff No. 2 entrusted 50 docras of DCH-32 Koppas nearly 99.70 quintals of cotton to appellant-defendant for taking the goods from Saundatti to Raichur. The consignee was Ghanshyamdas Boob, Cotton Merchants, Raichur. The declaration which is marked at Ex. P18 produced by the plaintiffs would go to show this was a Marine Declaration Form for a sum of Rs. 1,40,000. In other words the DCH cotton docras insured with the first plaintiff for an amount of Rs. 1,40,000 i.e., transit insurer. As a matter of fact the appellant has not denied carrying the cotton goods in his truck. It also finds the name of the consignor and the consignee. The truck number is also mentioned. The destination was Raichur, the loading of the goods was from Saundalti. The first plaintiff gave this Marine Insurance claim in favour of the second plaintiff. The name of M/s. Ghanshyamdas Boob, consignee also finds a place. According to the plaintiff No. 1 on account of the goods being burnt or destroyed during the transit, second plaintiff approached the first plaintiff when the defendant did not make good the loss caused to the second plaintiff on the basis of the policy. The first plaintiff settled claim at Rs. 1,07,713 and also assigned all the rights and claims in favour of the first plaintiff All this is evidenced at Ex. P1 the subrogation letter dated 27.5.1993. Ex. P2 further establishes the first plaintiff-Insurance Company having settled the claim had even paid the money to the second plaintiff. Paras 1, 2, and 3 of the plaint refer to these facts.
15. The written statement filed on behalf of the defendant is perused. According to them paras 1 and 2 of the plaint with regard to the consignment being sent from Saundatti to Raichur and the status of the parties are true and correct. He also admits that the goods carried in the carrier i.e., truck No. CNB 6678 was completely burnt at Chikkerur. According to him the entire truck was also burnt. At para 8 of the written statement he says the settlement of amount of Rs. 1,07,713 cannot be made behind his back as neither the plaintiffs did contact this defendant nor informed him about such settlement. Therefore, he calls upon the plaintiff to establish the said fact. Though he admits the basing of the suit on subrogation letter by the plaintiff as mentioned in the plaint at para 1 which is again referred to at para 3, the defendant does not say anything about the para 3 while he admits the details mentioned at paras 1 and 2. However, his only contention seems to be settlement of claim between the parties as Rs. 1,07,713 without sending any prior intimation to him. Therefore, he calls upon them to establish this fact.
16. The entrustment of the goods is admitted by the defendant in favour of the second plaintiff on 10.1.1993. He also admits the fire accident and the loss caused to the cotton goods in the fire. Therefore, there was not much of serious challenge with regard to Ex. P1 subrogation letter and so also Ex. P18 declaration and the insurance policy at Ex. P7. According to him even if the goods are lost or any damage caused to the goods, he is not at all liable as the goods of the second plaintiff were carried at owner's risk and he sought exemption from liability, as the accident was an Act of God.
17. At this juncture it would be necessary to cull out Section 9 of the Carriers Act of 1865 which is as under:
Section 9 : Plaintiffs, in suits for loss, damage, or non-delivery, not required to prove negligence or criminal act.--In any suit brought against a common carrier for the loss, damage or non-delivery of goods (including containers, pallets or similar articles of transport used to consolidate goods) entrusted to him for carriage, 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 carrier, his servants or agents.
18. The very section would indicate that in a claim made by the plaintiff for loss, damage or non-delivery, the plaintiffs are not required to prove negligence or criminal act in any suit filed by them against the common carrier claiming compensation, damages etc. At any cost the plaintiff is not required to prove the negligence so far as the loss, damage or non-delivery of the goods entrusted to the carrier. The moment the goods are not delivered to the consignee as per the contract between the consignor and the carrier he becomes liable to pay any loss caused on account of non-delivery of the goods. In the present case his defence is it was an Act of God i.e., the goods along with the truck being gutted in the fire accident, therefore, he is not liable to pay any damage or loss neither through the second plaintiff nor the first plaintiff who claims the suit claim under a subrogation letter. DW 1 is no other than the defendant. Admittedly he was not present in the vehicle at the time of the accident. The person who could have given the details of the accident must be the person like driver or cleaner or any coolie who was present in the vehicle at the time of the accident. No witness is examined except defendant himself to establish the said Act of God as a cause for the fire accident.
19. Even from the evidence of PW 1 and DW 1 and the documents produced before the Court nothing in this regard is forthcoming to substantiate the contention of the defendant/appellant. Therefore, in the absence of any convincing and clinching evidence on behalf of the defendant that accident was not due to his negligence, but it was due to an Act of God, the Trial Court has rightly come to conclusion that the defendant failed to establish the burden placed on him in this regard.
20. As a matter of fact soon after the accident Ex. P10 came to be written by the defendant to the consignor i.e., second plaintiff and the consignee i.e., Ghanshyamdas Boob, Raichur, bringing to their notice about the occurrence of the accident and the loss of goods. Even this letter does not indicate what was the reason which was beyond the control of the carrier for the occurrence of the accident. The Court in this regard has rightly relied upon Sections 151 and 152 of the Indian Contract Act with regard to the duties and liabilities of the Public Carrier or Bailey. He categorically admits that the entire goods were gutted in the said accident. The insurance was taken tor Rs. 1,40,000.
21. The main contention of the appellant seems to be the arrangement or settlement of amounts between the plaintiff Nos. 1 and 2 cannot be passed on to him as provisions of Section 10 of Carriers Act was not complied with by the second plaintiff. In this regard similar defence was raised before the Trial Court that there was no oral agreement between him and second plaintiff that he would be liable to pay damages if loss is caused to the goods carried in the public carrier. When once he admits that he was a public carrier and took the responsibility of transporting the goods from the second plaintiff from Saundatti to Raichur, the rights and liabilities of the parties are definitely subjected to the provisions of Carriers Act of 1865. On the other hand the appellant-defendant has not produced any documents to show that the arrangement between the plaintiff and him was to carry the goods at the risk of the owner, no receipt of such nature is forthcoming before the Court. In this regard the learned Counsel for the first respondent refers to the Judgment of Division Bench of this Court in Inter State Transport v. Pfizer Limited (supra) wherein it is held as under:
Suit for damages against carrier for delivery of goods in a damaged, deteriorated and soiled condition on account of carelessness, negligence, rashness and misconduct on the part of carrier, its servants and agents; resisted on the ground of accident to vehicle for reasons beyond its control with liability denied also on grounds of plaintiff's non-compliance with Sections 3 and 4 of the Act and protection under terms of G.C. Note. Suit being decreed, in appeal, on the contentions that plaintiffs having alleged negligence burden was on them to prove to plead and prove occurrence of accident beyond its control; plaintiff's non-compliance with Sections 3 and 6 of the Act absolving liability of defendant; that Insurance Policy did not relate to specific goods consigned; Surveyor was not competent to assess damages and failure on his part to issue notice to defendant or its agents at the time of survey.
The effect of Sections 6 and 8 of the Act is, that a common carrier is liable for loss and damage caused due to its negligence or misconduct of its agents or servants, and that liability cannot be limited by contract. Therefore, it is futile to contend that the liability for any damages due to negligence or misconduct on the part of the defendant, its employees, servants and agents is excluded by a clause more particularly specified in the G.C. Note. The condition that "the goods to be sent at owner's risk and that no responsibility would be taken in the case of fire or accident" do not and cannot protect a common carrier if the damages flowed from its negligence or misconduct. So it was incumbent on the defendant to prove that there was no negligence or misconduct on its part.
By reading above said judgment it is further clear that the rights and liabilities arising on account of the appellant carrying the goods of the consignee as a public carrier cannot be restricted or restrained by virtue of a contract. Therefore, such defence raised by the appellant was rightly rejected. It was also held in this case that when once plaintiff establishes that accident has occurred or the goods never got delivered to the consignee, the liability of the defendant cannot be absolved unless and until he establishes the fact that such loss or damage was beyond his control, in other words, in spite of taking due diligence and care, such accident occurred beyond the control of him.
22. The main argument of the learned Counsel in this appeal was with regard to Section 10 of Carriers Act, 1865, which reads as under:
Section 10: Notice of loss or injury to be given within six months--No suit shall be instituted against a common carrier for the loss of, or injury to, goods (including containers, pallets or similar articles of transport used to consolidate goods) entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months from the time when the loss or injury first came to the knowledge of the plaintiff.
23. Now it is relevant to consider facts of the case because if such compliance is not done, the plaintiffs will not be entitled for the suit claim.
24. In this regard we have Exs. P4 and P5. Ex. P5 is the copy of the letter dated 20.2.1993 addressed by the second plaintiff-consignor to the carrier i.e., the appellant herein lodging his claim defining the details of his claim. As a matter of fact he says 50 docras of cotton was valued at Rs. 1,40,000 and he requested the appellant to make the payment within 7 days from the date of receipt of the letter. According to the plaintiffs Ex. P4 is the acknowledgement dated 22.2.1993. The receipt of this letter and the signature of the appellant on the acknowledgement i.e., Exs. P4 and P5 are very much under challenge before this Court. According to the appellant the plaintiffs having failed to establish that this letter was actually received by the appellant herein they have to walk out of the Court or the respondents have to be non-suited.
25. When we look at the evidence of the defendant in this regard as a matter of fact he actually says for the first time he has seen the postal acknowledgement card marked as Ex. P4 said to contain his signature. He never says the signature found at Ex. P4 do not belong to him. Very evasively he says for the first time he saw the acknowledgement Ex. P4. Such answer cannot be considered as denial or refusing the very signature of him at Ex. P4. He tried to put forth his denial by saying he has not received Ex. P5. In view of the discussion above with regard to his answer at Ex. P4 he half-heartedly gave such evidence before the Court. On the other hand if his signature at Ex. P4 is compared with the signature at the Vakalatnama, written statement and the summons sent by the Court, the signature seems to be that of the same person. The address given in the cause title to which the suit summons have been sent or served and the address given in the notice i.e., at Ex. P5 and also the acknowledgement are one and the same. As a matter of fact in the appeal memo in the cause title the very same address is mentioned by the appellant.
26. Under these circumstances it is very clear and definite that in order to absolve his liability the defendant tried to deny the very receipt of notice at Ex. P5. In this background if such claim is put forth by the consignor i.e., 2nd plaintiff, it is irrelevant whether such notice was also issued by Insurance Company i.e., the 1st plaintiff. A question came up before the High Court of Karnataka in the Oriental Insurance Company and Anr. v. Vaishali Transport Fowarding Agency (supra) why mandatory notice as contemplated under Section 10 of the Carriers Act should be issued. In other words this Court had an occasion to deal with the purpose behind issuing such notice as contemplated under Section 10 of the said Act. The insistency to issue such notice before institution of the suit is with the object of bringing to the notice of the concerned person, the loss caused by its non-delivery, short delivery or loss of the consignment. When the mandatory requirement is not complied with it is within the Courts power to dismiss the suit or non-suit the plaintiff. However, this does not make it obligatory on the part of the plaintiff to mention the issuance of such notice in the plaint itself. It was held in the above case as under:
Para 11: The insistence to issue a notice to common carrier before institution of the suit is to bring to his knowledge the loss occassioned by his nondelivery, short delivery or loss of the consignment. The Courts will get the jurisdiction to dismiss the suit, if it finds necessary, only if the common carrier make a grievance of it and a plea is raised in the written statement. The plaintiff is not obliged to state the fact of issue of notice under Section 10 in the plaint. It is implied under Order 6 Rule 6 of the Civil Procedure Code. This section is intended to bring to the notice of the common carrier the total damage in the monetary terms, where the carrier is ignorant of this. There will be cases where after delivery of consignment, the damage will be noticed much later.
Para 12: But in this case, the respondent has not delivered the goods at all. So non-delivery of goods is within his knowledge. He exhibited such knowledge by giving a non-delivery certificate dated 7.8.1987. Hence the plea of non-issue of notice is only hyper technical.
Para 13: The Trial Court also ommitted illegality by presuming a jurisdiction which is not vested, when it proceeded to dismiss the suit on the ground of non-issue of notice without giving an opportunity to the petitioners to explain this aspect of the matter when they are duly represented by a learned Advocate.
27. As already stated above it was the appellant-defendant who brought to the notice of the consignor and the consignee about the occurrence of the accident and the goods being gutted in the fire. This is at Ex. P10.
28. Then coming to another angle of dispute or controversy between the parties that second plaintiff never entered the witness box and how much reliance one could place on the evidence of first plaintiff in such event? The rights accrued to the assignee on account of assignment and how that should be enforced is a subject under Transfer of Property Act. This Court held in the case of Oriental Insurance Company v. Prakash Road Lines (supra) while dealing with similar issues:
The assignment takes effect from the date it is made. The effect of Subsection (1) of Section 130 is to confer without notice to the person who is liable to satisfy the claim, a legal title on the transferee as opposed to an equitable title only. This is intended to enable the transferee to sue on his own name. The transfer or assignment of actionable claim takes place no sooner the document is executed as per Sub-section (1) of Section 130 of T.P. Act. Such a transfer can even be without consideration as is evident from the words 'with or without consideration' contained in the very sub-section. The validity of transfer or assignment of actionable claim does not depend upon the giving of notice to the person who is liable to satisfy the claim.... The proviso does not affect the assignment nor does it postpone the date of coming into effect of the assignment. If the assignee or the assignor gives notice of transfer of an actionable claim to the person who is liable to satisfy the claim, such person is prevented and is not entitled to settle the claim with the assignor. He can thereafter settle the claim with the assignee only. But this does not mean that the assignment is not effective or is not valid until the notice is given to the person who is liable to satisfy the claim.
What is assigned or transferred to the plaintiff-insurer is not the property in the goods but an actionable right of the insured against the respondent, which includes the right to recover damages which ITI had against the carriers--when there was a full and complete transfer or assignment of right to claim damages from the carriers by the ITI in favour of the appellant-insurer, there was no need to join the ITI either as plaintiff or as defendant. The appellant alone was entitled to maintain the suit. This transfer or assignment of the aforesaid right of the ITI falls under Section 130 of the Transfer of Property Act. Sub-section (2) of Section 130 of the T.P. Act specifially provides that the transferee of an actionable claim may upon the execution of such instrument of transfer as per Sub-section (1) sue or institute proceedings for the same in his own name without obtaining the transferor's consent to such suit or proceedings and without making him a party thereto.
29. In this case also the insurer of the goods settled the claim of the consignee for the loss caused in accordance with the terms of the policy on the basis of letter of subrogation. The Trial Court dismissed the said suit on the ground that the consignee was not made a party to the suit and the consignee not being the owner of the goods. Its rights could not have been subrogated. Aggrieved by the same the matter came up in an appeal before the High Court.
30. It was held the assignment takes effect from the date it is made. It is further held that the effect of Sub-section (1) of Section 130 is to confirm, without notice to the person who is liable to satisfy the claim, a legal title on the transferee i.e., has an equitable title only. The main intention was to enable the transferee to sue in his own name i.e., in the present case it is the first respondent-Insurance Company who is the transferee of the rights under subrogation letter Ex. P1. It was further held that what is assigned or transferred to the insurer is not the property in the goods but an actionable right of the insured against the person who is liable to pay. He. is none other than the appellant herein. In view of the complete transfer or assignment of rights accrued to the consignee i.e., the second plaintiff in favour of the insurer, the first plaintiff has full and complete right to claim damages from the carrier and it was held in the above case that even when the transferor of right was not a party to the suit, such suit was maintainable.
31. As a matter of fact in the present case the second plaintiff is made as a party who is no other than the consignor of the goods and the transferor of the rights under Ex. P1-subrogation letter. When it came to the question of Section 10, it was held that a notice under Carriers Act is contemplated within the period of 6 months without reference to the Provisions of Marine Insurance Act. The object of the notice was only to put a carrier on guard against the proposed claim. Therefore, it was held, by assignment of rights of the consignee in favour of the insurer-the first plaintiff by virtue of Section 10 of the Act must necessarily include the assignor of the plaintiff i.e., the consignee of the goods. In other words what it says is if the notice contemplated under Section 10 of the Carriers Act was issued on behalf of the consignee who insured the goods with the insurer and in a case where a suit is filed by the insurer on the basis of subrogation letter such situation would include the first plaintiff as he gets all the rights and obligations of the insured in his favour under letter of subrogation i.e., Ex. P1. Therefore, the notice issued by the second plaintiff would be considered as notice issued by the first plaintiff for the purpose of Section 10 of the Carriers Act. With regard to the service of notice, as already stated above, there is enough material that the appellant-defendant received such notice issued by the second plaintiff but he did not choose to reply the same.
32. The learned Counsel for the appellant lastly submitted even if the subrogation letter gives or assigns or transfers all the rights of him in favour of insurer-the first plaintiff, in the absence of the second plaintiff being examined before the Trial Court with regard to the details of accident and issuance of Section 10 notice the suit deserves to be dismissed. He relies upon a decision in Janaki Vashdeo Bhojwani and Anr. v. Industrial Bank and Ors. VII :1 (2004) BC 399 (SC) : 2004 AIR SCW 7064. It was with regard to Order 3 Rules 1 and 2 of CPC, whether power of attorney holder could depose in place and instead of principal. It was held as under:
Order 3 Rules 1 and 2 empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'acts' employed in Order 3, Rules 1 and 2, confines only in respect of 'acts' done by the power of attorney holder in exercise of poker granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
33. From the reading of the above decision it is noticed that the acts done by the power of attorney in pursuance of the terms and conditions of power of attorney, the power of attorney holder can depose for the principal in respect of such acts alone, but he cannot depose for the acts done by the Principal and not by him. Relying on this principle, the learned Counsel for the appellant submits that so far as the occurrence of the accident and the goods being lost in the fire is concerned, no doubt the appellant being the owner of the truck was very well aware of the said fact. But so far as the issuance of notice referred to at Ex. P5 and the receipt of acknowledgement by the second plaintiff which is marked at Ex. P4, it is within the special knowledge of the second plaintiff alone, therefore, the first plaintiff's evidence cannot be taken into consideration. Hence according to him for want of mandatory notice under Section 10, the suit has to be dismissed.
34. If the present case was in pursuance of power of attorney executed by the second plaintiff in favour of first plaintiff authorising the first plaintiff only to do those acts which are enumerated under power of attorney or the agreement, then the acts done by the second plaintiff in his individual capacity cannot be definitely held to be within the knowledge of the first plaintiff. The relationship between the first and second plaintiffs is altogether on a different footing in the present case. Their relationship is an insurer and the insured. The relationship between the second plaintiff and the defendant-appellant is that of the consignee who entrusted the goods to the public carrier i.e., the appellant. By occurrence of the accident or under the law of the land, the carrier would be responsible for all the losses caused to the consignee if the goods are not delivered intact as they were handed over to the carrier. For all the losses caused to the consignee, the carrier alone is responsible. By virtue of insurance policy being taken in respect of the goods that were transported by the consignee in the truck of the appellant, a different relationship altogether between the insurer and the insured comes into existence. By virtue of the policy the first plaintiff becomes liable to compensate the losses caused to the second plaintiff. Ex. P1 is a document or agreement which has come into existence after settlement of the claim made by the second plaintiff. By virtue of this settlement, Ex. P1 has come into existence. Under Ex. P1 all the rights that accrued to the second plaintiff got assigned or transferred to the first plaintiff. This is not a case where the first plaintiff was fighting for the rights of the second plaintiff as the power of attorney. In the case of power of attorney, the power of attorney has no rights to be called as his own right by virtue of power of attorney. He is authorised only to act in accordance with the terms and conditions of the power of attorney. There is no transfer of right from principal to the power of attorney. But in the case of subrogation the actionable claim or the right that accrued to the plaintiff on account of the loss caused to the second plaintiff due to the fire accident got assigned or transferred to the first plaintiff. In other words the first plaintiff steps into the shoes of the second plaintiff. By virtue of transfer of such right he gets the right to sue the defendant or the carrier. Therefore, the facts and circumstances in the case of Apex Court referred to above are not at all applicable to the facts of the present case as the facts and circumstances are totally different. Under these circumstances viewed from any angle the case of the appellant deserves to be rejected.
35. Accordingly, this appeal is dismissed. No order as to costs.