Delhi District Court
United India Insurance Company Ltd vs M/S Supreme Road Carriers Pvt. Ltd on 20 May, 2011
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST):
KKD COURTS: DELHI
SUIT NO.1611A/06
Unique Case Identification No: 02402C0134372006
United India Insurance Company Ltd.
Delhi Regional Office:1
Kanchangunga, 8th Floor,
Barakhamba Road,
New Delhi 110 001 .........Plaintiff No.1
M/s P.S.L. Holding Ltd.
B96, Greater KailashI
New Delhi110048 .........Plaintiff No.2
Versus
M/s Supreme Road Carriers Pvt. Ltd.
H.O.:F207, Sikka Mansion
5, LSC, Savita Vihar
Delhi110092 .............Defendant
Date of Institution : 13.03.2003
Reserved for Order : 16.05.2011
Date of Decision : 20.05.2011
Suit No. 1611A/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 1/24
Final Order : Suit Decreed.
SUIT FOR RECOVERY OF RS.1,53,930.00(RUPEES ONE
LAKH FIFTY THREE THOUSAND NINE HUNDRED THIRTY
ONLY) AGAINST THE DEFENDANT UNDER THE CODE OF
CIVIL PROCEDURE, 1908 READ WITH THE CARRIERS
ACT, 1865.
J U D G M E N T
Plaintiff has filed this suit with a prayer for a decree in sum of Rs.1,53,930/ in favour of plaintiffs and against the defendant with cost of suit and pendentelite and future interests on abovesaid amount @ 24% per annum from the date of damage of suit goods till date of realization of decretal amount.
2. In brief case of plaintiff is that Plaintiff No.1 is a Public Sector Insurance Company carrying on the business of General Insurance and having its registered office at 24, White House, Chennai600 014, and one of its branch office at 124 A, Katwaria Sarai (opp. Qutub Hotel), New Delhi and is "the insurer" of the suit goods. As alleged, plaintiff No.2 is "insured" of plaintiff No.1 and has subrogated its rights in favour of plaintiff no.1 vide a Letter of Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 2/24 Subrogation and Special Power of Attorney and has been impleaded as a proforma plaintiff only. Further plaintiffs have alleged that defendant is a Common Carrier in whose custody the suit goods was damaged/destroyed due to their carelessness and mishandling. As alleged, plaintiff no.2 has insured Coated Linepipes of different descriptions under policy No.040602/21/27/30/99 and entrusted a quantity of 35 numbers of it with an invoice value of Rs.8,65,877.63 to defendant for dispatch from Gandhidham to Piyala vide Release Note No.003141 dated 18.03.2000. Defendant had taken custody of the suit goods and issued consignment Note No. 656 PSL, DS No.266 dated 18.03.2000 ExGandhidham to Piyala and dispatched the same. Plaintiffs have further alleged that during road transit an accident took place due to carelessness and mishandling of defendant and suit goods were considerably damaged and the same was delivered at the destination on 27.03.2003 in damaged condition. M/s N.G. Hingorani a Surveyor and Loss Assessor was deputed by Plaintiff No.1 to conduct survey and assessment of damaged suit goods. The Surveyor assessed damage caused to the suit goods as under:
Suit No. 1611A/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 3/24
(i) Cost of one bare pipe with coating Rs. 25,167.62
charges
(ii) Recoating of 26 Nos - 3 LPE pipes Rs. 1,32,583.82
(Total length = 317.49 mtrs)
(iii) Steel pipe repair - 02 Nos Rs. 522.00
(iv) Cutting and Relevelling - 04 Nos. Rs. 2,088.00
Total Rs. 1,60,361.44
Less : Salvage value of 01 damaged non Rs. 6,000.00
repairable pipe ()
Net loss Rs. 1,54,361.00
As alleged, defendant has also admitted the quantum of damage of suit goods and extended a damage certificate dated 04.05.2000. After ascertaining the quantum of damage/loss, plaintiff no.2 had served, as alleged, on defendant a Loss Notice dated 11.04.2000 under the provisions of Section 10 of the Carriers Act, 1865 thereby requesting defendant to settle their claim at the earliest but defendant failed to settle and compensate to plaintiff no.2 in terms of claim dated 11.04.2000 lodged u/s. 10 of the Carriers Act and plaintiff no.2 filed their claim with plaintiff no.1 as the consignment Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 4/24 was insured with them. The plaintiff no.1 have settled the claim filed by the plaintiff no.2 and paid them full and final payment of Rs.1,53,930/ to plaintiff no.2 to the extent of loss sustained by them. Thereafter, plaintiff no.2 had executed a Letter of Subrogation and Special Power of Attorney and further directed to plaintiff no.1 to recover the same amount from defendant. However, plaintiff no.2 has also been made a proforma plaintiff though they have authorised plaintiff no.1 to institute the present suit even on their behalf. As alleged, even otherwise, plaintiff no.1 upon making payment of said amount paid to Insured/plaintiff no.2, gets a right under statute to claim reimbursement of Rs. 1,53,930/ from Defendant. Hence this suit.
3. This suit was filed under the provisions of Order XXXVII CPC. Vide order dated 6/04/2004, Ms. Smita Garg : Civil Judge : Delhi granted unconditional leave to appear and defend the suit to defendant.
4. Defendant has contested suit of plaintiff by filing contesting WS. In the WS, defendant has taken certain preliminary objections such as that the suit has been filed without the legal and Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 5/24 valid authority of plaintiff no.2 in as much as no resolution of Board of directors of plaintiff no.2 company has been placed on record; that the commercial invoice having agreed terms in writing "Not responsible for damage, breakage and leakage, suit of plaintiff is not maintainable; that suit of plaintiff is not maintainable in as much as commercial invoice, as per Insurance Policy, is in respect of purchase order dated 19.02.99 but commercial invoice placed on record is dated 24.11.99; that suit is not maintainable as no notice as mandatory u/s 10 of the Carriers Act has been served on defendant prior to filing of this suit; that suit of plaintiff is not maintainable as in the consignment note plaintiffs have not given the details of goods and cost thereof as per section 3/4 of the Carriers Act; that M/s. P.S. Holding Ltd. Is not the owner of the goods and therefore suit of plaintiffs is not maintainable and that there is no negligence on the part of defendant in transportation of the goods and there is no criminal act on the part of driver of defendant and hence suit is not maintainable.
On Merits, averments made in plaint have been denied but issuance of consignment note has not been denied by defendant Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 6/24 and as per defendant consignment note is a matter of record. As per defendant, there was no negligence, carelessness or mishandling on the part of defendant in transporting the goods and driver of the truck has not been prosecuted in the case as there was no rash or negligent driver on the part of driver of vehicle. As per defendant, as per survey report on account of coming of two cows in front of the moving vehicle, driver lost the control of vehicle and hence there is no negligence on the part of driver of defendant. Further, as per defendant, no notice by surveyor or by plaintiff or by any other person to join the survey was served upon defendant. As alleged, the resume of the survey is wrong, excessive, without any material and same is in collusion with plaintiff no.2 with ulterior motive and there is conspiracy among the officials of plaintiff and team of Survey Party. As per defendants, letter dated 4/05/2000 was issued without authority of Board of Directors of defendant & same is denied. As alleged, no notice dated 11/04/2000 has been served on defendant. As per defendant, letter dated 11/04/2000 is not a notice in accordance with the provisions of section 10 of Carriers Act. As per defendant, plaintiff no.1 in connivance with plaintiff no.2, settled the claim filed Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 7/24 by plaintiff no.2 on excessive rates, though no loss was sustained by plaintiff no.2. As alleged, account books of plaintiff no.2 does not reflect the said loss and amount has been taken from plaintiff no.1 in conspiracy with officials of plaintiff. At last, defendant has prayed for dismissal of suit with cost.
5. Plaintiff has filed replication to WS of defendant. In the replication, plaintiff has denied the stand taken by defendant in its defence and has reaffirmed the averments made in plaint. In the replication plaintiff has also referred to case law reported as United Bank of India Vs. Naresh Kumar, AIR 1997 SC 03. Further plaintiff has clarified that commercial invoice is an import document of suit goods exKorea to Kandla port and a Release Note No. 003141 dated 18.03.2000 with said commercial invoice was entrusted to defendant with the suit goods exKandla port to Piyala. The defendant, as submitted, is concerned with dispatch of suit goods exKandla port to Piyala as mentioned in the Release Note and Goods Receipt and not the commercial invoice which is of different destination. Further, as per plaintiff, mere stipulation of "Not responsible for damage/ breakage and leakage" on the Carrier's Goods Receipt does not Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 8/24 amount to a separate/special contract as envisaged u/s 6 of the Carrier's Act. As per plaintiff S. 3/4 of Carriers Act are applicable to the scheduled goods and nature of the suit goods is not scheduled goods as defined in Carrier's Act. Also, as per plaintiff, for fixing the liability of defendant, total value of suit goods Rs.8,65,776.30 was recorded on the Release Note of plaintiffs which the defendant has accepted, loaded and thereafter dispatched.
6. On 23.09.2004 Ld. Predecessor of this court framed the following issues:
1. Whether the plaintiff is entitled for the recovery of Rs.1,53,930/ as prayed for? OPP
2. Whether the Plaintiff is entitled for the pendentelite and future interest on the above referred amount @ 24% as prayed for?OPP
3. Relief.
7. To substantiate its case on judicial file, plaintiffs examined Sh. Ajay Kumar, as PW1. Also plaintiff has examined Sh. N.G. Hingorani as PW2. PE was closed on 16/12/10 by ld. counsel for plaintiff by making a separate statement to that effect.
In its defence, Defendant examined one Sh. Jay Dev, Director of the defendant company as DW1. DE was closed on Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 9/24 29.01.2011 by Sh. Jay Dev by making separate statement to that effect.
8. I have heard Sh. R.K. Ram, Advocate for plaintiffs and Sh. S. P. Aggarwal, Advocate for defendant and have gone through the case file very carefully. Written submissions have been filed by ld. counsel for plaintiff. Ld. counsel relied upon the case laws as referred to in the written submissions of ld. counsel for plaintiff.
On the other hand, ld. counsel for defendant addressed oral arguments. Ld. counsel for defendant has submitted that suit has not been signed by both the plaintiffs and plaintiff no.1 cannot sue the defendant in its own name as attorney of plaintiff no.2. It is further submitted that both the plaintiffs are not entitled to recover the suit amount. As submitted suit is misconceived. It is further submitted that letter Ex. PW2/7 ( also bears exhibition mark Ex. PW1/8) is not a notice as contemplated u/s. 10 of the Carriers Act. It is submitted that in the notice specific amount as claimed by plaintiff no.2 must have been mentioned but it is not so mentioned in this case. Further ld. counsel for defendant submitted that from the report of surveyor it is apparent that there is no negligence on the part of driver of defendant Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 10/24 and in such a situation no claim can be made against the defendant. Further, ld. counsel for defendant submitted that suit is bound to fail in as much as the person who has signed the plaint has not appeared in witness box. Written submissions have also been filed by ld. counsel for defendant.
9. I have given a thoughtful consideration to rival submissions made by ld counsel for the parties keeping in view the facts and circumstances of the present as they arises on the basis of material available on judicial file.
10. My issuewise findings are as under: ISSUE NO.1 Whether the plaintiff is entitled for the recovery of Rs.1,53,930/ as prayed for? OPP Undisputedly plaintiff no. 2 is insured of plaintiff no.1. But defendant has disputed the subrogation of its rights by plaintiff no.2 in favour of plaintiff no.1 vide letter of Subrogation and special Power of Attorney. The Marine Policy taken by plaintiff no. 2 from plaintiff no.1 has been placed on record as Ex. PW1/2 (also bearing exhibition Mark Ex. PW2/3) which bears policy no. 040602/ Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 11/24 21/27/30/99. Letter of Subrogation & Special Power of Attorney executed by plaintiff no. 2 in favour of plaintiff no.1 has been produced/proved on record as Ex. PW1/11. There is no dispute as to settlement of claims of plaintiff no.2 by plaintiff no.1 but as per defendant settlement has been done on excessive rates though no loss was sustained by plaintiff no.2. Irrespective of Ex. PW1/11 (Letter of Subrogation & Special Power of Attorney), after payment of loss of suit goods by plaintiff no.1 in favour of plaintiff no.2 rights and remedies of plaintiff no.2 stood automatically subrogated in favour of plaintiff no.1 under section 79 read with 90 of the Marine Insurance Act 1963. Also it has been specifically alleged in plaint that plaintiff no.2 has been impleaded as a proforma plaintiff only. In this background nonsigning of plaint by plaintiff no. 2 is inconsequential. Also it cannot be said that plaintiff no.1 is acting in this case only in the capacity of attorney of plaintiff no.2. In the facts and circumstances of this case, it can be said that plaintiff no.1 has filed this suit in its individual capacity for the enforcement of its substantive right (statutory right) and plaintiff no.2 is only a proforma party. Thus the fact that plaintiff no. 2 has not signed the plaint is Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 12/24 immaterial. Also the fact that plaintiff no. 2 was not a necessary party but has been impleaded as a proforma party is also to no benefit to defendant and does not affect the fate of suit or otherwise entitlement of plaintiff no.1 in this case. Ld. counsel for defendant is right in submitting that both the plaintiffs are not entitled to recover the suit amount but for this reason suit cannot be said to be misconceived in as much as it has been specifically pleaded in the plaint that plaintiff no. 2 is only a proforma party to suit. This court finds no substance in the submissions of ld. counsel for defendant that notice dated 11/04/2000 Ex. PW2/7 (also bearing exhibition Mark Ex. PW1/8) is not in consonance with the notice required to be served u/s10 of the Carrier Act. Section 10 of the Carrier Act perused. Section 10 requires that before suit is instituted against a common carrier for the loss or injury to goods entrusted to him for carriage, notice in writing of the loss or injury has to be given to common carrier before institution of the suit and within 6 months of the time when loss or injury first came to the knowledge of plaintiff. It does not require that plaintiff in the notice must state the specific amount claimed by the plaintiff on account of loss or injury to goods. It will be sufficient Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 13/24 compliance with the provisions of section 10 of Carriers Act if prior to filing of suit, notice is given in writing and common carrier is intimated about the loss of, or injury, to goods within six months of the time when loss or first came to the knowledge of plaintiff. In this case accident had occurred on 20/03/2000 and as per letter dated 11/04/2000, damage came to the notice of plaintiff no.2 on 27/03/2000 and notice was served on defendant on /about 11/04/2000. The said notice was replied by defendant vide reply dated 4/05/2000 Ex. PW2/6 ( also bearing exhibition Mark as Ex. PW1/7). The fact that letter/notice dated 11/04/2000 does not bear the stamp and date of receiving of the defendant is immaterial because in any case the said notice was replied vide reply dated 04//05/2000 (i.e. within 6 months of plaintiff no.2 for the first time coming to know about the damage to goods).
In its WS, defendant has denied to have been served with notice Ex. PW2/7 (Ex. PW1/8) but at the same time, defendant has taken the stand that reply/letter dated 04/05/2000 (Ex. PW2/6Ex. PW1/7) was issued without the authority of Board of Directors of defendant. Letter/reply Ex.PW2/6Ex. PW1/7 refers to letter Ex.
Suit No. 1611A/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 14/24
PW2/7Ex. PW1/8 written by plaintiff no.2 to defendant. Thus undoubtedly defendant was served with notice/letter dated 11/04/2000 Ex. PW2/7Ex. PW1/8 which complies with all the requirements of notice u/s 10 of the Carriers Act. As regards te authority of person signing reply/letter dated 04/05/2000 Ex. PW2/6 Ex. PW1/7 no evidence has been lead by defendant. If the signatory of said letter was not authorised to sign the same,who else was so authorised has not been brought on Judicial file. It is not case of defendant that letter head is not of that of defendant. Same is the position with regard to rubber stamp. Also it is not the case of defendant that signatory of the said letter is not at all the employee of defendant. In this background vague stand that letter dated 4/05/2000 has not been signed by duly authorised person is to no consequence. Also defendant has not clarified as to what action, it has taken against the signatory of said letter for signing the same without authority to do so. In any case plaintiff is not expected to know about the indoor management of the defendant.
As per defendant, as deposed in affidavit Ex. DW1/A, there was no negligence on part of driver which may give rise to any Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 15/24 claim against defendant as accident occurred due to two cows which came in front of moving vehicle and because of same driver lost control of vehicle but even that never resulted into such a damage as mentioned in the Survey Report as the damage had occurred due to retransportation from the site of the accident to the godown of the consignee for which defendants cannot be held liable as the said re transportation was not done by defendants. It is pertinent to note that the above stand as has been taken in para 13 of affidavit Ex. DW1/A filed by Mr. Jay Dev is being taken for the first time by defendant and there does not exist corresponding averments in the WS of defendant. In the written statement only thing which has been pleaded is that there was no negligence, carelessness, mishandling on the part of driver in transporting the goods and driver of the truck has not been prosecuted in any case as there was no rash or negligent driving on the part of driver of the vehicle. Further in the written statement reliance was placed on the survey report wherein it has been alleged that on account of coming of two cows in front of moving vehicle, driver lost control of the vehicle. It has nowhere in the pleadings/WS that goods belonging to plaintiff no. 2 got damaged due to re Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 16/24 transportation of goods from the site of accident to the godown of consignee. To my mind stand which is beyond pleadings of parties cannot be allowed to be taken. Even otherwise defendant has failed to substantiate the above stand on the judicial file by producing on record cogent evidence to show that goods were damaged while being retransported from the site of accident to the godown of the consignee. Defendant admits the happening of accident. In such circumstances preponderance of circumstances suggest that suit goods stood damaged in the accident caused due to coming of 2 cows in front of moving vehicle. Vague stipulation of defendant without any proof that suit goods were damaged when the same were re transported from the place of accident to the godown of consignee does not benefit the defendant in any manner. Further to avoid its liability, defendant in written submissions is relying upon depositions made by DW1 in his cross examination in reply to suggestion given by plaintiff which are being reproduced herein below: "It is correct that driver was not negligent as the accident took place because of saving two cows who came in front of the road."
Also defendant is relying upon Survey Report submitted Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 17/24 by PW2 Mr. N.G. Hignorani wherein it has been reported as under: "This particular consignment had a mishap on 20/03/2000, when the driver of the trailor lost the control of vehicle due to 2 cows came in front of his moving vehicle. Consequently, the rear portion of the trailor went out of the road and hit a tree, due to which all the pipes fell down and sustained damages."
Now the question arises as to whether defendant can avoid the liability on the ground that driver of defendant was not negligent in driving the vehicle at the time of accident in as much as two cows had come in front of moving vehicle. As per section 9 of Carrier Act it is not necessary for plaintiff to prove that goods were damaged due to negligence or criminal act of carrier his servant or agent. Further it is settled law, in view of case law relied upon by ld. counsel for plaintiff, that defendant being a common carrier is responsible for the safety of goods entrusted to him in all events except that loss or damages arises from act of God or King's enemies or when there is special contract which the common carrier may chose to enter with customer like plaintiff no.2. Absolute liability of the carrier is subject to two exceptions, an act of God and a special contract as contemplated u/s 6 of Carrier Act. As per case law titled Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 18/24 as United India Insurance Company Ltd and another v. Budhiraja Goods Transport Company (Suit No.1697/03 u/o. XXXVII CPC) decided by Hon'ble Mr. Justice A.K. Sikari, Judge Delhi High Court that accident occurring due to coming of cows in front of the truck has not been considered to be falling under the exceptions to the rule of absolute liability of carrier. To my mind an accident occurring due to coming of cows in front of moving vehicle cannot be said to be an accident by act of God in as much as such like accident have the involvement of human acts/omissions. A careful/expert driver can always avoid such like accidents by exercising his expertise by applying emergency brakes. The issue in cases like the present one is not as to whether defendant's driver was negligent or not but the issue is whether defendant has been successful in establishing on judicial file that his case falls under the exceptions to the rule of absolute liability common carrier. In my considered opinion in the case in hand accident had not occurred due to an act of God.
Further as per case laws reported as M/s Nath Bros. International Ltd. v. Best Roadways Ltd relied upon by ld. counsel for plaintiff that mere mention of word "owner's risk" on the GR does not Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 19/24 amount to exempting the common carriers from his own negligence or negligence of servants/agents. Further, to my mind, Goods Receipt Ex. PW2/5 ( also bears exhibition as Ex. PW1/4) does not constitute a special contract as contemplated u/s 6 of Carrier Act in as much as it has not been signed on behalf of plaintiff no. 2 as has been admitted by DW1 Mr. Jay Dev in his cross examination. For constituting a special contact u/s 6 of the Carrier Act 1865 it is mandatory that the special contract must have been signed by the consignor of the goods but in the present case the contract/goods receipts between the plaintiff no. 2 and defendant has not been signed by or on behalf of plaintiff no.2. Thus it can be said that in the present case version of the defendant is not covered under either of the two exceptions (i.e. loss/injury on account of act of God/king's enemies or special contract u/s 6 of Carriers Act 1865) to the rule of absolute liability of common carrier as that of an insurer.
Further stand of defendant is that no notice was issued by plaintiff no. 2 or the surveyor Mr. N.G. Hingorani regarding the survey of damaged goods. To my mind merely because no notice of survey of the damaged goods by Mr. N.G. Hingorani was given to Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 20/24 defendant either by plaintiff no.2 or by Mr. N.G. Hingorani does not affect the admissibility /reliability of report of surveyor Ex. PW1/6 (also bears the exhibition mark as Ex. PW2/1). As per defendant, resume of survey is wrong, excessive without any material and same is in collusion with plaintiff no.2 with ulterior motive & there is conspiracy among the officials of plaintiff and the team of survey party. Above stand has not been substantiated by defendant on judicial file. Also even corresponding suggestions have not been given to PW2 Mr. N. G. Hingorani, the surveyor in his cross examination. Only suggestion given to PW2 Mr. N.G. Hingorani in is cross examination is that report Ex. PW2/1 is false and has been given at the instance of insurer.
In what specific terms report Ex. PW2/1 is false has not been even suggested to PW2 Mr. N. G. Hingorani. Individual components of report Ex. PW2/1 has not been put to challenge in the crossexamination of PW2 Mr. N. G. Higorani. It has not been suggested to PW2 Mr. N. G. Hingorani that the goods were not, at all, in damaged condition. Vide Ex. PW2/6 (Ex.PW1/7) admittedly goods were damaged due to road accident. It is a different aspect that it has Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 21/24 been issued "without prejudice".
Also survey report has been held to be a liquidated demand as per case law reported as Rajender Kumar Vs. Oriental Ins. CO. AIR 1990 Delhi 278. Also defendant having full knowledge of the accident on 20/03/2000, could very well have asked the plaintiff no.2 to join him in the inspection/survey conducted by PW2 Mr. N.G. Hingorani but defendant did not bother/care to do so at the relevant time. Now defendant cannot be permitted to complain about the same. In view of above detailed discussion, to my mind, survey report Ex. PW2/1 (Ex. PW1/6) can be acted upon/replied upon by this Court.
In the facts and circumstances of this case the non appearance of signatory of plaint in witness box is to no consequence in as much as admittedly accident had occurred wherein the suit goods were damaged. Admittedly suit goods were entrusted to defendant by plaintiff no.2 for their carriage to Ex. Kandla Part to Piyala vide GR Ex. PW2/5 (Ex. PW1/4). Survey report has been proved on judicial file by PW2 Mr. N. G. Hingorani. Admission of entrustment of suits goods to defendant for carriage purposes, admission of happening of accident & goods having been damaged in Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 22/24 accident, the circumstance that case of defendant does not fall in the exceptions of the rule of absolute liability of common carrier, survey report and the fact of settlement of its claim by plaintiff no.2 ("the insured") with plaintiff no.1 ("the insurer") are sufficient for decision of this case. Also section 3/4 of the Carriers Act have no application in this case because suit goods are not scheduled goods. As per Ex.PW1/10 a sum of Rs.1,53,930/ has been paid by plaintiff no.1 to plaintiff no.2. In terms of S. 79 r/w S. 90 of Marine Insurance Act plaintiff no.1 is entitled to recover the said sum from defendant being the common carrier. Hence plaintiff no.1 is held to be entitled to recover a sum of Rs.1,53,930/ from defendant. Issue is accordingly decided in favour of plaintiff.
Issue No.2 Whether the Plaintiff is entitled for the pendentelite and future interest on the above referred amount @ 24% as prayed for?OPP This suit has been filed by plaintiff no.1. Plaintiff no.2 is only a proforma party. Right to file the suit accrued to plaintiff no.1 after plaintiff no.1 settled the insurance claim of plaintiff no.2 & paid the amount of Rs.1,53,930/ to plaintiff no.2. Thus plaintiff no.1 is Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 23/24 entitled to interest on the said sum from the date of plaintiff no.1 making payment to plaintiff no.2. Plaintiff no.1 is held to be entitled to pendentelite & future interest @ 9% p.a. from the date of payment by plaintiff no.1 to plaintiff no.2 till the realisation of the decreetal amount. Interest for this period & at this rate was allowed by Hon'ble Delhi High Court in case law reported as United India Insurance Co. Ltd. & Anr. Vs. M/s. Budhiraja Goods Tpt. Company CS(OS) No. 1697/2003 decided by Hon'ble Delhi High Court. Issue is accordingly decided in favour of plaintiff.
Relief In view of above detailed discussion & my findings on issue No.1 & 2, suit of plaintiff no.1 is decreed in its favour & against the defendant for a sum of Rs.1,53,930/ with pendentelite & future interest @ 9% p.a. till the date of realisation of the decreetal amount. Also cost of suit are awarded to plaintiff. Decree sheet be prepared. File be consigned to Record Room.
Pronounced in the open court on (Anand Swaroop Aggarwal) 20.05.2011 SCJCumRC/East : Delhi Suit No. 1611A/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 24/24