Delhi District Court
National Insurance Co. Ltd vs Om Logistics Limited on 23 April, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CNR No. DLWT01-008027-2016
Civ DJ/613634/16
1. National Insurance Co. Ltd.,
Registered office/Head Office
3, Middleton Street,
Kolkata - 700071.
Through Sr. Divisional Manager,
Divisional Office No.22,
5/67, Padam Singh Road,
4th Floor, Pal Mohan House,
Karol Bagh, New Delhi -110005.
2. M/s TEVA API India Ltd.,
Plot No. 26, 28, 21,
Ecotech-11, Udyog Vihar, Greater Noida,
Distt. Gautam Budh Nagar, U.P. .......Plaintiffs
Vs.
Om Logistics Limited,
130, Punjabi Bagh Transport Centre,
Ring Road, New Delhi -110035. .........Defendant
Date of institution :-21.10.2016
Order Reserved On:- 12.04.2022
Date of Decision:- 23.04.2022
SUIT FOR RECOVERY OF Rs.42,44,331/-
JUDGMENT
1. The present suit was filed for recovery of Rs.42,44,331/- alongwith interest by Plaintiffs namely M/s National Insurance Company Limited and M/s TEVA API India Ltd. against the defendant namely Om Logistics Limited, alleging the following facts:-
National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 1/27"The Plaintiff no.1 is an Insurance Company, duly incorporated and registered under the Indian Companies Act, 1956 and Sh. K.K. Arora posted at Divisional Office No.22, 5/67, Padam Singh Road, 4th Floor, Pal Mohan House, Karol Bagh, New Delhi is a Principal Officer of the plaintiff no.1 company and is duly empowered to sign, verify the present suit. The Plaintiff no.2 who is the consignee of the suit consignment for valuable consideration is the insured of plaintiff no.1. It has authorized the plaintiff no.1 by way of letter of subrogation and special power of attorney to file suit in the Court against the defendant and Sh. K.K. Arora, Sr. Divisional Manager of plaintiff no.1 has also signed, instituted and verified the suit on behalf of plaintiff no.2. The defendant is a common carrier within the meaning of Carriage by Road Act, 2007 and at all material times used to carry on business as carrier of goods by roads from one place to another for consideration. The plaintiff no.2 booked a consignment of Lithium Hexamethyl Disilazide Solution vide Invoice No. DOM/197 dated 28.10.2013 for a sum of Rs.42,44,331/- vide G.R. (Goods Receipt) No. 8829892 dated 28.10.2013 with the defendant for the carriage from Vishakhapatnam to Malanpur, National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 2/27 Distt. Bhind, Gwalior, Madhya Pradesh. The defendant undertook to transport the said consignment from Vishakhapatnam to Malanpur, Distt. Behind, Gwalior, Madhya Pradesh. The defendant provided the above services for the valuable consideration paid by plaintiff no.2. The defendant is, therefore, liable to compensate the plaintiff no.2 for the damage of the consignment in question being a common carrier under the Carriage by Road Act, 2007. The defendant took the delivery of the consignment and was dispatched vide the aforementioned Invoice and G.R by the Truck No. AP-28-TA-5781. While transporting consignment, the driver of the truck reached near Kattangur Nalgonda District, Andhra Pradesh on 29.10.2013 and a fire had occurred in the truck while on board, resulting into the damage of the whole consigned goods completely. Due to the fire, the original Invoice No. DOM/197 dated 28.10.2013 and G.R. No. 8829892 dated 28.10.2013 were destroyed in the fire. An FIR No. 170/2013 dated 30.10.2013 at PS Kattangur, Distt. Nalgonda has been lodged. The goods got damaged because of the negligence of the carrier and the same amounts to breach of duty on the part of defendant which has failed to deliver the National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 3/27 consignment in safe and sound condition at its destination. A registered notice dated 23.11.2013 was sent u/s 16 of the Carriage by Road Act, 2007 and served by the plaintiff no.2 on the defendant whereby the defendant was called upon to pay the loss caused to the plaintiff no.2 to the tune of Rs.42,44,331/-. The defendant also acknowledged the loss caused to the plaintiff no.2 and issued the damage/shortage/loss of consignment certificate dated 14.12.2013. The defendant should have taken proper care for the safety of the consignment just to avoid any loss to the consignment entrusted to them. In the present case, the defendant acted negligently and there is no dispute to the fact that the consignment was completely lost. The defendant is a common carrier and its liability is governed by the Carriage by Road Act, 2007 and Section 12 deals with the provisions pertaining to the liability of common carrier for the loss/damage to the goods entrusted for carriage. The plaintiff no.2 being the insured of the plaintiff no.1 vide Policy No. 354500/21/13/4400000009 in the name of plaintiff no.2 covering all risk from 01.04.2013 to 31.03.2014. The plaintiff no.2 intimated the plaintiff no.1 regarding the damage of the consignment. The plaintiff no.1 appointed National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 4/27 surveyor namely Professional Insurance Surveyors and Loss Assessors Pvt. Ltd. On 31.10.2013 for assessing the claim. The Surveyor submitted the Assessment Report dated 13.02.2015 thereby assessing a claim to the tune of Rs.41,09,029/-. After receiving the said report, the plaintiff no.1 scrutinized the claim as per their contractual obligations and settled the claim of plaintiff no.2 for the suit amount of Rs.42,44,331/- and made the said payment to the plaintiff no.2 and after receipt of said compensation, the plaintiff no.2 has assigned, transferred, abandoned and subrogated all their rights, claims and beneficial interest to recover and realized on its own name, the amount of compensation for and on behalf of plaintiff no.2 from the defendant in favour of plaintiff no.1. Alternatively, it is pleaded that plaintiff no.2 being the consignor and owner of subject matter is entitled to claim compensation for the loss from the defendant. Alternatively, it is pleaded that both the plaintiffs jointly and severally having suffered the loss are entitled to claim the suit amount. The plaintiffs are also entitled to interest @ 18% per annum which is commercial rate of interest. The cause of action arose on 28.10.2013 when the consignment was booked and dispatched and again National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 5/27 arose when the truck and consignment gutted with fire on 29.10.2013 and then arose on 23.11.2013 when the plaintiff no.2 served a notice upon the defendant demanding payment for the damaged consignment and then arose when the defendant issued damage certificate dated 14.12.2013. It again arose on subsequent dates when the plaintiff no.1 made payment to plaintiff no.2 and letter of subrogation was executed by plaintiff no.2 in favour of plaintiff no.1. Based on said averments, plaintiffs moved to the Court seeking decree for a sum of Rs.42,44,331/- in favour of plaintiff no.1 or plaintiff no.2 or jointly in favour of plaintiffs alongwith pendente-lite and future interest @18% per annum."
2. Summons of the suit were served upon the defendant who filed its written statement.
3. In the written statement, defendant took preliminary objections viz. the present case is against the law and the plaintiff has not approached the Court with clean hands and thus the present suit liable to be dismissed. The present suit is not filed by plaintiffs through any of its duly authorized persons. Mr. K.K. Arora is not at all authorized to sign, verify or institute the present suit against the defendant. At the time of booking of goods, a person is having the option of booking the goods either on Owner's risk or on Carriers Risk. In case the person opted for National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 6/27 carriers risk then the defendant charges extra for that. In the present case, the plaintiff opted for the goods to be carried at its own risk i.e. on owner risk basis and thus the extra amount for that is also not paid and the risk was not insured through the defendant. The defendant is not liable to pay the claimed amount in view of Sections 10 and 11 of the Carriage by Road Act, 2007 and rules framed therein. No cause of action ever arisen in favour of the plaintiff and against the defendant to file the present suit. No valid letter of subrogation or power of attorney was ever given in favour of plaintiff no.1 by plaintiff no.2. The alleged letter of subrogation and power of attorney is not validly executed by the person from plaintiff no.2 in favour of plaintiff no.1 and the document is not duly notarized. The present suit is liable to be dismissed as no notice u/s 16 of Carriage by Road Act, 2007 was ever servved upon the defendant. The present suit is liable to be rejected under Order 7 Rule 10 and 11 CPC as the present suit before Delhi Courts is not maintainable as no cause of action ever arisen in Delhi. The plaintiff no.2 works for gain at Gautam Budh Nagar, UP and the alleged consignment was going from Vishakhapatnam to Malanpur and merely because the defendant is having its registered office at Delhi, the present suit before this Court cannot be tried and entertained at Delhi.
4. On merits, defendants refuted the version of the plaintiffs by referring to aforesaid preliminary objections and same are not repeated here for the sake of brevity. It was explained that the plaintiff no.2 booked a consignment with defendant vide GR No. 8829892 dated 28.10.2013 with the defendant for the carriage from Vishakhapatnam to National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 7/27 Malanpur, Distt. Bhind, Gwalior, Madhya Pradesh. However, as the consignment was in packed condition, therefore, it cannot be stated that it contained Lithium Hexamethyl Disilazide Solution vide Invoice No. DOM/197 dated 28.10.2013 for a sum of Rs.42,44,331/-. It is submitted that the defendant undertook to transport the said consignment in safe condition from Vishakhapatnam to Malanpur, Distt. Bhind, Gwalior, Madhya Pradesh. At the time of booking of goods, a person is having the option of booking the goods either on Owner's risk or on Carriers Risk. In case the person opted for carriers risk then the defendant charges extra for that. In the present case, the plaintiff opted for the goods to be carried at its own risk i.e. on owner risk basis and thus the extra amount for that is also not paid and the risk was not insured through the defendant. The notice dated 23.11.2013 u/s 16 of Carriage by Road Act, 2007 is denied by the defendant. It is submitted that though the defendant has taken utmost care and caution while transporting the consignments but it could not avoid the loss to the consignment as well as to the vehicle carrying it which is only due to force majeure. It is submitted that the damage certificate was issued 'Strictly without prejudice' and is protected u/s 23 of Indian Evidence Act. It is further submitted that the defendant was not given any notice of appointment of surveyor and the alleged inspection by surveyor was conducted in the absence of the defendant. It is submitted that as per the report of surveyor, the plaintiff no.2 transported the highly inflammable chemicals without their being properly packing it which resulted in the leakage of chemical resulting into the accident.
5. No replication has been filed by the plaintiffs to the written National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 8/27 statement of the defendants.
6. After completion of pleadings, vide order dated 16.05.2017, the following issues were framed:-
1) Whether the suit of the plaintiff is bad for want of notice under Section 16 of Carriage by Road Act, 2007? OPD.
2) Whether this Court has no territorial jurisdiction to try the present suit? OPD.
3) Whether the suit of the plaintiff has not been filed by duly authorized person? OPD.
4) Whether the plaintiffs are entitled to a decree for a sum of Rs.42,44,331/- as prayed for? OPP
5) Whether the plaintiffs are entitled for interest on the aforesaid amount? If so, at what rate and for which period? OPP
6) Relief.
7. After settlement of issues, matter was fixed for plaintiff's evidence.
8. Plaintiffs examined one witness to prove its case and examined Sh. Mahesh Naithani, Sr. Divisional Manager as PW1 who tendered his evidence by way of affidavit as Ex.PW1/A in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
Exhibit Description of document National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 9/27 Mark A Copy of Certificate of Incorporation. Mark B Copy of Resolution and power of attorney Mark C Invoice dated 28.10.2013. Ex.PW1/3 GR No. 8829892 Ex.PW1/4 Consignment note dated 30.10.2013. Ex PW1/5 FIR with English translation. Ex PW1/6 Final report dated 31.12.2013. Mark D Notice dated 22.11.2013. Ex PW1/8 Postal receipt Ex PW1/9 Damage certificate dated 14.12.2013. Ex.PW1/10 Certificate of defendant dated 26.06.2015. Mark E Certificate of common carrier registration Ex.PW1/12 Insurance policy Ex.PW1/13 Surveyor report dated 13.02.2015. Ex.PW1/14 Letter of subrogation issued in favour of plaintiff no.1. Ex.PW1/16 Discharge voucher Ex.PW1/17 Certificate u/s 65B of Indian Evidence Act. PW-1 was cross-examined and discharged.
9. After examining the said witness, plaintiffs closed their evidence.
10. Matter was then fixed for defendant's evidence.
11. In their defence, defendant has only examined Sh. Vinay Kumar, Manager (Legal & Liasion) as DW1. He tendered his evidence by way of affidavit as Ex.DW-1/A in which he reiterated the contents of written statement which are not repeated here for the sake of brevity.
National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 10/27DW-1 relied upon following documents:-
Exhibit Description of document Ex.DW1/1 Resolution dated 24.08.2016. Ex.DW1/2 Resolution dated 02.01.2019.
Note:- Today, Ld. counsel for plaintiff has made a statement that he wants to withdraw his objection with regard to mode of proof of documents Ex DW1/1 & Ex DW1/2. Accordingly, those documents are relevant and admissible in law.
DW1 was cross-examined on behalf of the plaintiffs and discharged. Subsequently, defendant closed its defence evidence.
12. Consequently, matter was fixed for final arguments and after hearing final arguments, matter was fixed for judgment. Thereafter, written submissions were filed on behalf of defendant and relied upon following citations:-
(i) AIR 2004 SC 5147 titled as "Arvind Mills Ltd. Vs M/s Associated Roadways."
13. Ld. counsel for plaintiff relied upon following citations:-
(i) 2012 (130) DRJ 487 titled as "Pick Up Carriers Vs National Insurance Co. Ltd. & anr."
(ii) (2000) 4 SCC 553 titled as "Nath Bros. Exim International Ltd. Vs Best Roadways Ltd."
14. During Course of arguments, Ld. counsel for the plaintiff submits that plaintiff no.1 is the insurer company and the plaintiff no.2 is the consignee of the suit consignment and the consignment was damaged due to negligence of defendant and the defendant has issued shortage/damage/loss of consignment certificate and on the basis of that National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 11/27 plaintiff no.1 has paid the suit amount to the plaintiff no.2 and plaintiff no.2 issued a subrogation Certificate in favour of plaintiff no.1 and being subrogee the present suit for recovery is filed by duly authorised and competent person and as the defendant has its office in Delhi and discharge voucher was issued by plaintiff no.1 and plaintiff no.2 from Karol Bagh office giving rise to cause of action in Delhi and the suit is within the territorial jurisdiction of this Court. It is further argued that notice and other formalities were duly complied on the basis of that damage certificate was issued by defendant. On the other hand, Ld. counsel for defendant submits that the suit is not filed by duly authorised and competent person. This Court has no territorial jurisdiction to entertain the present suit as plaintiff no.2 has its office in UP. The suit is bad for non-issuance of notice under Section 16 of the Carriage by Road Act, 2007. The suit is bad by virtue of Section 10 & 11 of the Carriage by Road Act, 2007. There was no negligence on the part of the defendant. The consignment was carried at owner's risk and not at carriers risk and the damage certificate is a prejudiced document under Section 23 of the Indian Evidence Act and cannot be read against defendant.
15. It is relevant here, before appreciation of evidence and deciding the issues, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 12/27 making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
16. In subsequent paragraphs, this Court will be deciding the issues as settled in the present suit.
National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 13/27ISSUE - WISE FINDINGS ARE AS UNDER :-
ISSUE NO. 11) Whether the suit of the plaintiff is bad for want of notice under Section 16 of Carriage by Road Act? OPD.
17. The onus to prove this issue is upon defendant and in their written statement, defendant took preliminary objection viz. that the The present suit is liable to be dismissed as no notice u/s 16 of Carriage by Road Act, 2007 was ever served upon the defendant.
18. It is relevant here to consider provisions of Section 16 of The Carriage by Road Act, 2007 reads as under:-
"16. Notice for institution of a suit - No suit or legal proceeding shall be instituted against a common carrier for any loss of, or damage to the consignment, unless notice in writing of the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceeding and within one hundred and eighty days from the date of booking of the consignment by the consignor."
19. It is submitted by Ld. Counsel for defendant that the notice u/s 16 of Carriage by Road Act, 2007 is mandatory and the alleged notice dated 22.11.2013 was not sent to the defendant and the only postal receipt which was exhibited as Ex.PW1/8 shows that the same has been sent to one Umesh Chand who is not concerned with the defendant.
20. To rebut his submissions, it is submitted by Ld. Counsel for plaintiffs that the notice dated 22.11.2013 was marked as Mark D and it was sent through Registered post. It is further submitted that the notice National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 14/27 Mark-D clearly mentions the fact that loss caused was of Rs.42 Lakhs. He further argued that the damage certificate Ex.PW1/9 was issued by the defendant which corroborates the fact that the notice Mark D was duly served upon the defendant.
21. On careful scrutiny of the testimony of PW1 Mahesh Naithani, in para no.7 of his affidavit in examination-in-chief, he has stated that notice was sent under Section 16 of the Carriage by Road Act, 2007 which was served upon defendant vide postal receipt Ex.PW1/8 and the same is acknowledged by defendant by issuing damage/shortage/ loss of consignment certificate dated 14.12.2013 exhibited as Ex.PW1/9 and the certificate dated 26.06.2015 is in the nature of corrigendum was also issued as Ex.PW1/10.
22. Further, the testimony of PW1 has remained unrebutted and on careful examination of Notice dated 22.11.2013 Mark-D, the postal receipt Ex.PW1/8, damage certificate Ex.PW1/9 and certificate of defendant Ex.PW1/10, it becomes clear that Ex.PW1/9 mentions consignment note No. 8829892 dated 28.10.2013 and same is a Damage Certificate issued by defendant Om Logistics Ltd. and Mark-D is a monetary claim for consignment No. 8829892 dated 28.10.2013 by plaintiff no.2 to defendant. Thus, it becomes clear that claim through notice Mark-D was sent on the basis of which damage certificate Ex.PW1/9 was issued. Considering overall facts and circumstances as discussed above, the defendant has failed to prove that plaintiff has not intimated or failure of notice towards the defendant. Accordingly, the corollary of documents has established preponderance of probabilities National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 15/27 that the defendant has the notice.
23. Thus, issue no.1 is decided in negative i.e. against the defendant and in favour of plaintiff.
ISSUE NO. 2.
2)Whether this Court has no territorial jurisdiction to try the present suit? OPD.
24. Ld. Counsel for the defendant has taken the objection that this Court has no territorial jurisdiction to try the present suit. It is stated that the plaintiff no.2 works for gain at Gautam Budh Nagar, UP and the alleged consignment was going from Vishakhapatnam to Malanpur and merely because the defendant is having its registered office at Delhi, the present suit before this Court cannot be tried and entertained at Delhi.
25. In response, Ld. Counsel for plaintiff has submitted that there is no dispute to the fact that the defendant is having its registered office at Delhi and works for gain at Delhi. He further argued that as per document Ex.PW1/16, the discharge voucher by plaintiff no.1 to plaintiff no.2 was done from the office of the plaintiff no.1 at Karol Bagh, Delhi. Thus, the cause of action arose in Delhi.
26. It is relevant here to consider the provisions of Section 20 Civil Procedure Code, 1908, which is reproduced as under:-
"20. Other suits to be instituted where defendants reside or cause of action arises. -- Subject to the limitations aforesaid, every suit shall be instituted in a Court within National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 16/27 the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.
Explanation--A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
27. As the defendant has its registered office at Delhi and discharge voucher issued by plaintiff no.1 from his Karol Bagh Office, Delhi to plaintiff no.2. Accordingly, a part of cause of action also arises in Delhi and as per the provisions of Section 20 Civil Procedure Code, 1908, this Court has territorial jurisdiction to try and entertain the present suit.
28. Accordingly, the issue no.2 is decided in negative i.e. against the defendant and in favour of plaintiff.
ISSUE NO. 3.
3) Whether the suit of the plaintiff has not been filed by duly authorized person? OPD.
29. Ld. Counsel for the defendant has taken the objection that the present suit has not been filed by a duly authorized person.
National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 17/2730. In Para no.1 of the plaint and affidavit in evidence, the fact with regard to empowerment to sign, verify the present suit is stated and documents i.e. Certificate of Incorporation Mark-A and Power of Attorney Mark B are relied upon on behalf of plaintiff. During the course of cross-examination, it is deposed by PW1 that he has been working in the office of plaintiff as Senior Divisional Manager since 01.01.2017 and he brought the original Identity Card to show that he is the Senior Divisional Manager of plaintiff company. The testimony of PW1 Mahesh Naithani remained unrebutted in cross-examination.
31. Here, it is relevant to mention the observations of Hon'ble Supreme Court in Bank of India Vs. Naresh Kumar 1996 (6) SCC 660, which are as under :-
"...9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name, Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity, it is obvious that some person has to sign the pleadings on behalf of the company, Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation like Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. .."National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 18/27
32. Thus, considering the fact that the suit is contested to the hilt and PW1 Mahesh Naithani is the Senior Divisional Manager of plaintiff company and his testimony remained unrebutted in the cross- examination as no suggestion was given that the copies of the document Mark B are forged and fabricated. In view of the position of law as stated in Union Bank of India's case (supra), this Court is of the view that the present suit is filed by a duly authorized person. Thus, this issue no.3 is decided in the negative, that is, in favour of the plaintiff and against the defendant.
ISSUES NO.4
4) Whether the plaintiffs are entitled to a decree for a sum of Rs.42,44,331/- as prayed for? OPP
33. As per the case of plaintiffs, the plaintiff no.1 is the Insurance Company and the plaintiff no.2 is the consignee of the suit consignment for valuable consideration and the same was issued with plaintiff no.1 and the consignment was damaged due to negligence of defendant and on the basis of the certificate of shortage/damage/loss of consignment i.e. Ex.PW1/9 & Ex.PW1/10 and further on the basis of Insurance Policy ( Ex PW1/12) and surveyor report (Ex.PW1/13), the plaintiff no.1 has paid the amount to plaintiff no.2 and a letter of subrogation Ex.PW1/14 was issued in favour of plaintiff no.1. Thus, the plaintiff no.1 being the subrogee and assignee of all rights, claims, beneficial interest, title and remedy and having suffered the loss is entitled to recover the full amount from the defendant.
National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 19/2734. Per qua defendant, at the time of booking of the goods, an option was there for booking the goods either on 'owner risk' or on 'carrier risk' and in case a person opted, as in the present case also, at its own risk i.e. on owner risk then the risk was not insured with the defendant as extra charges for carriers risk was not paid. Further, no valid letter of subrogation or power of attorney was ever given in favour of the plaintiff no.1 by plaintiff no.2. The defendant denies that the consignment contained Lithium Hexamethyl Disilazide Solution. The defendant also denied any negligence on their part and stated to act as a prudent man with utmost care and safety measures and the loss could not be avoided as it is only due to force majeure and the damage certificate Ex.PW1/9 was issued 'strictly without prejudice' and is protected u/s 23 of the Indian Evidence Act and as per the report of Surveyor Ex.PW1/13, the plaintiff no.2 has transported the highly imflammable chemicals without their being proper packing and which resulted in accident.
35. On careful perusal and examination of Letter of Subrogation Ex.PW1/14 and special power of attorney purporting to be executed by plaintiff no.2 M/s TEVA API India Ltd in favour of plaintiff no.1, National Insurance Co. Ltd, on receipt of Rs.42,44,331/- (Rupees Forty Two Lakhs Forty Four Thousand Three Hundred and Thirty one) from plaintiff no.1 under Policy No. 354500/21/13/4400000009, has assigned, transferred and abandoned in favour of plaintiff no.1 all their actionable rights, title and interest in and to the goods including all the rights and remedies. The document of subrogation and special power of attorney was proved by PW1 Mr. Mahesh Naithani. The document Ex.PW1/14 has been assailed by defendant on the ground that the same has not been National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 20/27 duly notarized. However, this Court finds no merit in the contention of the defendant as the document Ex.PW1/14 has been duly notarized and the testimony of PW1 has remained unrebutted in cross-examination.
36. The submission of the defendant that the loss of goods is due to force majeure and there was no negligence on the part of the defendant, it has to be scrutinized in the light of Section 17 of Carriage by Road Act, 2007. The provisions of Section 17 of Carriage by Road Act, 2007 are reproduced as under :-
"17. General responsibility of common carrier - Save as otherwise provided in this Act, a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage, arising from any cause except the following, namely -
(a) act of God.
(b) act of war or public enemy.
(c) riots and civil commotion.
(d) arrest, restraint or seizure under legal process.
(e) order or restriction or prohibition imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a Sate Government authorized by it in this behalf.
Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery of the consignment if the common carrier could have avoided such loss, destruction, damage or deterioration or non-delivery had the common carrier exercised due diligence and care in the carriage of the consignment."
Thus, on perusal of Section 17, it gets crystal clear that a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit except the five given exceptions as contained in National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 21/27 the provision of Section 17 of the Carriage By Road Act, 2007. Further, no evidence was produced to prove that there was due care and caution taken by the defendant.
37. Now, applying the same principles to the case at hand, none of the five exceptions are applicable to the present case.
38. Ld. Counsel for plaintiff has relied upon the judgment of Hon'ble Supreme Court in Nath Bros. Exim International Ltd. v. Best Roadways Ltd., (2000) 4 SCC 553, wherein it has been observed as under :-
"27. From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants."
39. It is relevant to mention here that the aforesaid judgment of Nath Bros. Exim International Ltd's case the principle contained in Para 27 as stated above is applicable to the facts and circumstances of the present case.
40. The submission of the defendant that the defendant is not liable to pay the claimed amount in view of Section 10 & 11 of the Carriage By National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 22/27 Road Act, 2007 has to be considered and appreciated in the light of Section 10 & 11 of The Carriage By Road Act, 2007. It is relevant here to consider the provisions of Section 10 of the Carriage By Road Act, 2007.
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 authorised in that behalf have expressly undertaken to pay higher risk rate fixed by the common carrier under Section 11.
(2) The liability of 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 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.
41. On perusal of Section 10 (1) of The Carriage By Road Act, 2007, the liability of common carrier shall be limited to such amount as may be prescribed having regard to the value, freight, documents and nature of goods or articles of the consignment and if the same be considered with evidence on record in the present case i.e. Ex PW1/4, consignment note, the gross value on it is mentioned as Rs.42,44,351/-. Thus, the provision of Section 10 does not bar the claim of the plaintiff as the claim of the plaintiff is within the limit of the value of consignment.National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 23/27
42. As far as, Section 11 of The Carriage By Road Act, 2007, it is relevant here to consider the provisions of Section 11 of the Carriage By Road Act, 2007 which reproduced as under:-
11. Rates of charge to be fixed by common carrier for carriage of consignment at a higher risk rate - Every common carrier may require payment for the higher risk undertaken by him in carrying a particular consignment at such rate of charge as he may fix and correspondingly, his liability would be in accordance with the terms as may be agreed upon with the consignor:
Provided that to entitle such carrier to claim payment at a rate higher than his ordinary rate of charge, he should have exhibited a printed or written notice, in the vernacular language of the State, of the higher rate of charge in the place or premises where he carries on the business of common carrier.
43. The provisions of Section 11 of Carriage by Road Act, 2007 embodies conditions for requirement of payment for the higher risk on the part of carrier. Further, as per proviso of Section 11 for higher rate than carriers ordinary rate, the carrier should have to exhibit a printed or written notice but in the case at hand there is no evidence on the part of the defendant/ carrier to show that the said condition was complied.
Accordingly, Section 11 is not applicable in the present case due to non fulfillment of the conditions given under Section 11 of The Carriage by Road Act, 2007.
44. If the submission of the defendant that the consignment was in packed condition and it cannot be said that it contains Lithium Hexamethyl Disilazide Solution be seen in the light of the evidence on record i.e. Ex PW1/4 (consignment note) it has in consignment details description specific mention of "Lithium Hex". Thus, the consignment contains Lithium Hexamethyl Disilazide Solution is duly proved by National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 24/27 evidence on record. This fact remains irrebutable in cross-examination of PW1. Accordingly, the submission of ld. counsel for the defendant that the consignment was in packed condition and it cannot be said that it contains Lithium Hexamethyl Disilazide Solution is not sustainable.
45. If the submission of the defendant that the damage certificate was issued "strictly without prejudice" and is protected under Section 23 of The Indian Evidence Act, 1872, the same on careful examination with evidence on record i.e. Ex PW1/9 (shortage/ damage /loss of consignment) issued by defendant then on the foot of it is written " This certificate is issued at the request of consignee solely for the purpose of lodging their claims against issues....". Thus, the certificate was issued for the purpose of claim with the insurer. Accordingly, the Protection under Section 23 of Indian Evidence Act is not available to the defendant as per the contents of defendant's own certificate Ex PW1/9 and the same remains irrebutable in cross-examination of PW1. Thus, the submission of defendant is not sustainable.
46. The defendant has failed to prove and has not lead any evidence except vague submission that they have took proper care and caution with respect to the consignment. Further by virtue of Section 12 (2) of the Carriage by Road Act, 2007, it shall not be necessary for the plaintiff to prove the negligence of carrier.
47. As far as, objection to surveyor's report, the defendant has not proved any malafide of the surveyor or collusiveness with the plaintiff National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 25/27 while issuing the surveyor report Ex PW1/13. Further, the surveyor report has specifically mentioned the net assessed loss as Rs.41,09,029/-. Thus, in absence of any independent evidence the objection of defendant is not sustainable.
48. Thus, issue no.4 is decided in affirmative i.e. in favour of plaintiff and against the defendant.
ISSUE NO.5 :-
5) Whether the plaintiffs are entitled to interest on the aforesaid amount? If so, at what rate and for which period? OPP
49. The onus to prove this issue with regard to interest is upon the plaintiff. No evidence has been led by either of the parties regarding the amount of interest. In view of findings given on issue no.4 in the judgment and considering the normal rate of interest, plaintiff is entitled to the interest @6% per annum from the date of filing of the suit till the date of realization on amount of Rs.42,44,331/-.
50. Thus, issue no. 5 is decided in affirmative i.e. in favour of plaintiff and against the defendant.
ISSUE No.6 RELIEF
51. In the light of aforesaid discussion, the suit of the plaintiff stands decreed and a decree for a sum of Rs.42,44,331/- with interest @6% per National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 26/27 annum from the date of filing of the suit till the date of realization is passed in favour of the plaintiff no.1 and against the defendant.
52. Cost of the suit is also awarded in favour of the plaintiff.
53. Decree sheet be prepared accordingly subject to payment of deficient court fees.
54. File be consigned to the record room after due compliance.
Announced in the Open Court (Syed Zishan Ali Warsi)
on 23.04.2022 Additional District Judge-05
West District, THC, Delhi
National Insurance Company & Anr. Vs. Om Logistics Ltd. Page No. 27/27