Delhi District Court
United India Insurance Co. Ltd vs Vaibhav Carriers on 6 July, 2011
IN THE COURT OF SHRI AMIT KUMAR, SCJ/RC(WEST)
TIS HAZARI COURTS, DELHI
S154/02
United India Insurance Co. Ltd.,
Through its Manager
Delhi Regional Office
8th Floor, Kanchanjunga Building,
Barakhamba Road, New Delhi ....Plaintiff
Versus
1. Vaibhav Carriers,
1st Floor, 247, Delhi Road,
Near Ajantas Cinema,
Merrut250002
2. M/s Royal Chemicals & Polymers,
Regd. Office, B82, Defence Colony,
New Delhi - 110024 ....Defendant
Date of institution of the suit : 02.07.2002
Date of reserving Judgment : 06.07.2011
Date of pronouncement : 06.07.2011
JUDGMENT
1. Present is a suit seeking recovery of a sum of Rs.67,428/ filed by an insurance company on the basis of a letter of subrogation issued in their favour by the insurer defendant No.2 who is proforma defendant, against the carrier defendant No.1 on the averments that IPCL Limited booked a consignment from Gandhar, Gujarat to New Delhi through defendant No.1 to be delivered to defendant No.2 at New Delhi. The consignment note dated 14.06.99 shows that the chemicals weighing 28.90 M.T. were to be delivered at Delhi through a truck bearing No. UP15E7595 but the entire chemical was not delivered and there was a shortage of 12250 Kg. It is further stated in the suit that the goods were insured with the plaintiff through a Marine Policy No.040702/21/26/04/134/98 in the name of defendant No.2 and since there was a shortage of delivery, a claim was lodged for the lost consignment with the plaintiff and the plaintiff appointed their surveyor who submitted its report dated 21.06.99 and after conducted a protracted inquiry, a sum of Rs. 67,428/ was disbursed to defendant No.2 by the plaintiff as full and final settlement for their insurance policy. Subsequently, a letter of subrogation was issued in favour of plaintiff by defendant No.2 on basis of that this suit has been filed for recovery of a sum of Rs. 67,428/ against defendant No.1 and defendant No.2 is only a proforma defendant.
2. Only defendant No.1 appeared after service of summons and filed written statement and took preliminary objection that this court does not have the territorial jurisdiction as well as the suit being not instituted by a competent person and there being no privity of contract between defendant No.1 and 2 and also between the plaintiff and defendant No.1 and it was also claimed that survey report is manipulated document and the goods were supplied specifically at the owner's risk and therefore, defendant No.1 is not liable. On merits, it was claimed that there was loss of chemical because of accident and there was no negligence or misconduct by the employees, servants or agents of defendant No.1.
3. On the pleadings of the parties, following issues were framed on 28.07.03:
1. Whether the present court does not have the jurisdiction to try the present suit? OPD
2. Whether there is no privity of contract between the defendants 1 and 2? If so, its effect? OPD1
3. Whether the alleged cost, balance, loss accrued due to factors beyond the control of defendant No.1? If so, its effect? OPD1
4. Whether the suit is bad for misjoinder of parties? OPD1
5. Whether the suit has been filed by a proper and competent person? OPP
6. Whether the plaintiff is entitled for a decree of Rs.67,428/ with interest? If so, at what rate and for what period against the defendant No.1? OPP
7. Relief
4. Plaintiff to prove its case has examined its assistant manager M.L. Bhatt as the sole witness whereas the defendant has examined its manager Pankaj Jain as the only witness. My findings on the issues are as under:
5. ISSUE NO.1 :
The onus of proving this issue was on the defendant
6. ISSUE NO.2 :
The onus of proving this issue was on defendant No.1 and the same being a legal issue, it was argued by the counsel for defendant No.1 that the alleged insurance policy was an agreement between the defendant No.2 and the plaintiff and further the goods were booked with defendant No.1 by IPCL Ltd. and not by defendant No.2 and therefore, there is no privity of contract with defendant No.1 by any of the parties and therefore, defendant No.1 is not liable to pay any sum to the plaintiff. I have considered his submissions. Admittedly, the goods were to be delivered to defendant No.2 and were booked by IPCL for the benefit of defendant No.2. The company IPCL only acted as an agent for defendant No.2 and defendant No.1 cannot claim that there was no privity of contract between the two. A carrier is bound to deliver the goods as an insurer of the goods to the consignor who in this case was defendant No.2 and not IPCL as argued by the counsel for defendant No.1. Record also shows that a notice dated 22.07.99 was issued to defendant No.1 by defendant No. 2 as Ex. P4 which is not disputed by the defendant witness in his cross examination and in pursuance to that notice, a letter Ex. P5 was issued by defendant No.1. Though this letter was issued without prejudice and its contents cannot be read against defendant No.1, but the fact remains that such letter was issued and the same is not disputed and thereafter, there was a contract between defendant No.1 and defendant No.2.
7. As far as privity of contract qua the insurance policy is concerned, though plaintiff has failed to prove the said insurance policy, but had there been any insurance policy in existence, defendant No.1 would have been liable in view of letter of subrogation issued by defendant No.2 in favour of plaintiff. In those circumstances, the plaintiff will step into the shoes of defendant No. 2 and since defendant No.2 could have claimed the loss from the defendant No.1, the plaintiff could have also done so. It is however specified that the insurance policy has not been proved by the plaintiff for which findings in detail are given in subsequent issues. This issue, therefore, is decided against defendant No.1
8. ISSUE NO.3 :
The onus of proving this issue was also on the defendant since as per section 9 of the Carriers Act, 1865, if a suit is brought against a common carrier for loss or damage to the goods, the onus is on the defendant to show that nondelivery was not because of their negligence and not viceversa. In this regard, defendant has not led any evidence to show that the loss was not because of negligence on their part. The manager examined by them admittedly was not present on the spot when the alleged accident / leakage took place. This witness is a manager posted at Merrut whereas the accident which caused the leakage took place at BarodaNew Delhi Highway more specifically at Halol. The testimony given by him is only hearsay or on the basis of office record which has not seen the light of the day. The defendant, therefore, has failed to establish that the loss did not take place because of their negligence. This issue, therefore, is decided against them.
9. ISSUE NO.4 :
The onus of proving this issue was also on the defendant who has failed to show as to how the suit is bad for misjoinder of parties. Plaintiff has already specified that defendant No.2 is only a proforma defendant whereas the recovery is sought against defendant No.1 who is a necessary party to this suit. Otherwise also, the suit cannot be dismissed for misjoinder of parties though there is none in this case. This issue, therefore, is also decided against the defendant No.1
10. ISSUE NO.5 :
The onus of proving this issue was on the plaintiff. Record shows that the suit has been filed by one R. Kumar, deputy manager of the plaintiff. As per PW1, R. Kumar was authorized vide meeting held on 20.02.1987 Ex. P1. Copy of minutes have been placed on record vide its resolution. Board of directors of the plaintiff authorized all the senior divisional manager, divisional manager and assistance divisional managers to file the suits for an on behalf of the plaintiff company. There is nothing in the cross examination to disbelieve the resolution Ex. P1 and the copy of the minutes have been placed on record and therefore, suit has been instituted by duly authorized person. This issue is decided in favour of the plaintiff.
11. ISSUE NO.6 :
The onus of proving this issue was on the plaintiff also who has claimed this amount on the basis of a letter of subrogation Ex. P2. This letter of subrogation was issued on the basis of an alleged insurance company taken by defendant No.2 from the plaintiff. It means that the insurance policy is the base of this letter of subrogation on the basis of which the amount was claimed by defendant No.2 from the plaintiff and by plaintiff from defendant No.1. The insurance policy has not seen the light of the day. The onus was on the plaintiff to prove that a valid insurance policy was in existence on the day when the claim was filed by defendant No.2. In this regard, plaintiff has not placed the said policy on record nor its covering note nor has examined any witness by summoning the said record from defendant No.2. They have merely issued a notice u/o XII rule 8 CPC Ex. P11 vide which they asked exparte defendant No.2 to produce the insurance policy and when none was produced, they did not take any steps for proving the same through secondary evidence.
12. It is also important to note even the letter of subrogation Ex. P2 is blank in respect of the insurance policy and thereby making this letter of subrogation, an invalid document. This letter of subrogation admittedly was issued for an alleged insurance policy and once the policy number is not mentioned. The letter of subrogation in itself become invalid. The insurance policy must have been proved on record by the plaintiff to claim reimbursement of the alleged disbursed amount. Without the insurance policy, it cannot be ascertained as to whether on the relevant date, there was a valid insurance or not or whether the loss suffered by defendant No.2 was covered by the insurance policy or not. The onus was on the plaintiff to prove all these facts, but he has failed to prove the same. Ld. Counsel for the plaintiff though has placed much reliance on the letter Ex. P5 to argue that vide this letter, defendant No.1 has admitted shortage of material of the value of approximately Rs. 1 Lakh and the same should be sufficient to hold that they are liable for paying this amount. I have considered his submissions, but the same has no force for two reasons. Firstly, it was for the plaintiff to prove that this alleged loss was covered by an insurance policy for which a letter of subrogation was issued in favour of the plaintiff and secondly, this letter cannot be read against the defendant No.1 as an admission being barred by section 23 of the Indian Evidence Act. This letter Ex. P5 shows that it has been issued without prejudice to their rights and contentions and therefore, it was agreed between the parties that it cannot be used as an evidence against defendant No.1 and therefore, the same is barred by section 23 of the Indian Evidence Act and as such no reliance can be placed upon this document and since plaintiff has failed to prove that there was a valid subrogation letter in its favour as well as the insurance policy existing on the relevant date in favour of defendant No.2, the plaintiff has failed to prove this issue, onus of which was on them. This issue is decided against the plaintiff.
13. RELIEF :
In view my findings given on issue No.6, plaintiff is not entitled to any relief and the suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (AMIT KUMAR)
on 06.07.2011 SCJ/RC(WEST)
TIS HAZARI COURTS,
DELHI