Delhi District Court
National Insurance Company Ltd And ... vs Navjot Cargo Movers on 3 November, 2025
1
IN THE COURT OF SH. MANOJ KUMAR SHARMA,
DISTRICT JUDGE- 07:
WEST DISTRICT:TIS HAZARI COURTS, DELHI.
SUIT NO. :- 139/2024
CNR NO. DLWT010014622024
IN THE MATTER OF :-
1.NATIONAL INSURANCE COMPANY LTD.
Regd. & Head Office, 3, Middleton Street, Calcutta-700 071.
Branch Office, Sector 2, National Highway Parwanoo, Distt. Solan, (H.P.) Through Manager, Regional Office-I, Jeevan Bharati Building, 124, Connaught Circus, New Delhi-110 001.
2. RANA POLYCOT LIMITED S.C.O. 49-50, Sector 8-C, Madhya Marg, Chandigarh - 160 018. ....Plaintiffs National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 1 of 31 2 VERSUS NAVJOT CARGO MOVERS F-104, Vishnu Garden, New Delhi - 110 018. ...Defendant SUIT FOR RECOVERY OF RS.25,88,732/- (RUPEES TWENTY FIVE LAKHS EIGHTY EIGHT THOUSAND SEVEN HUNDRED THIRTY TWO ONLY) ALONGWITH INTEREST @ 18% PER ANNUM.
Date of institution of the Suit : 03.05.2007
Date of Judgment was reserved : 28.07.2025
Date of Judgment : 03.11.2025
::- J U D G M E N T -::
1. The present suit has been filed by the plaintiffs against the defendant seeking recovery of Rs. 25,88,732/- alongwith pendente lite and future interest @ 18% per annum from the date of filing of the present suit till the realization of the decretal amount.
1.1. It is to be noted that though in memo of parties Rana Polycot Limited has been designated as plaintiff no. 2, neither the plaint nor the supporting affidavit has been signed by any of its official and plaintiff no.1 has impleaded it as a party to the present suit on the strength of Special Power of Attorney dated 09.03.2005.
2. CASE OF THE PLAINTIFFS AS PER PLAINT The necessary facts for the adjudication of the present suit, as stated in the plaint, are as under :
2.1. The plaintiff no.1 is an insurance company duly incorporated and registered under The Companies Act, 1956 National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 2 of 31 3 and Sh. Atul Vishnoi, Manager at Regional Office-I, New Delhi, being Principal Officer of plaintiff no.1 is duly empowered to sign, verify and institute the present suit.
2.2. The defendant is a common carrier, who is in the business of transportation of goods by road and governed by the provisions of The Carriers Act, 1865.
2.3. Plaintiff no.2 booked an export consignment of 100% cotton yarn weighing 20417.720 kilograms packed in 451 cartons as per invoice no.195/2004-2005 dated 22.09.2004 (hereinafter referred to as consignment) with the defendant for its transportation from their plant at Lalru (Punjab) to Delhi and as the said consignment was scheduled for export to Singapore, it was sealed by the officials of Central Excise Department and the defendant had also issued a consignment receipt No.7383 dated 25.09.2004.
2.4. Plaintiff no.1, Insurance Company had provided insurance cover to the consignment vide Marine Cargo Policy No.421104/21/03/4400066 against all transit risks.
2.5. The defendant failed to deliver the consignment at Delhi and upon this, an FIR was got lodged by the officials of plaintiff no. 2 company at PS Lalru on 29.09.2004.
2.6. Thereafter, a notice dated 08.12.2004 under Section 10 of The Carriers Act, 1865 was issued by plaintiff no.2 thereby calling upon the defendant to reimburse the loss National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 3 of 31 4 suffered by it to the tune of Rs. 27,15,645/- owing to the non-delivery of the consignment.
2.7. In response, a loss / non-delivery certificate dated 21.12.2004 was issued by the defendant admitting the loss of consignment and the factum of non-delivery at its scheduled destination.
2.8. As the aforesaid consignment was insured with plaintiff no.1 under their Marine Cargo Policy No.421104/21/03/4400066 against all transit risks, plaintiff no.2 preferred its claim qua the loss of consignment with plaintiff no.2 and in pursuance thereof, a surveyor was appointed, who carried out the assessment of loss and filed his report dated 05.01.2005 and after taking into consideration all the relevant facts and documents, the claim was settled at Rs. 25,88,732/- and the payment of the aforesaid amount was made by plaintiff no.1 to plaintiff no.2.
2.9. In lieu of the aforesaid receipt of the claim amount, plaintiff no.2 assigned, transferred and subrogated all its rights, claims and beneficial interest qua the subject matter consignment in favour of plaintiff no.1 thereby authorizing to recover the loss suffered by it from defendant and in pursuance thereof, a letter of subrogation and a Special Power of Attorney were executed thereby entitling the plaintiff no.1 to recover the aforesaid settlement amount from the defendant.
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 4 of 31 5 2.10. The loss of consignment was suffered by plaintiff no.2 as the defendant and its agents / employee acted in a careless and negligent manner in the conduct of their business and handling of consignment.
2.11. There is no conflict of interest between the plaintiffs and the defendant is liable to make payment of the suit amount as compensation for the loss / damage suffered by them owing to the gross negligence of defendant and his employees.
2.12. The defendant has failed to make payment of the suit amount despite several requests and reminders sent by the plaintiffs.
3. Summons for settlement of the issues of the present suit were issued to the defendant on 05.05.2008, the same received back duly executed and defendant put its appearance through counsel on 08.08.2008. Thereafter, neither defendant appeared nor filed written statement, accordingly he was proceeded ex-parte vide order dated 16.01.2009 and the matter was listed for ex-parte PE and finally the claim of the plaintiff was decreed vide judgment dated 30.08.2011.
3.1. Thereafter, an application under Order IX Rule 13 CPC read with Section 5 of The Limitation Act seeking setting aside of the aforesaid ex-parte judgment / decree was filed by the defendant, which was allowed and the ex-parte judgment / decree dated 30.08.2011 was set aside and the National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 5 of 31 6 written statement filed on behalf of the defendant was taken on record.
4. CASE OF THE DEFENDANT.
4.1. The plaintiffs have no locus standi to file the present claim seeking recovery of suit amount from the defendant.
4.2 The present suit filed by the plaintiffs is not maintainable in the eyes of the law as there is no valid cause of action in their favour to seek recovery of the suit amount from the defendant.
4.3. No damage has been suffered by the plaintiffs emanating from any act of the defendant and as far as the incident of theft of consignment in question is concerned, the defendant and his employees cannot be held responsible for the same as they had no control over it.
4.4. The investigation of police and report of Marine Surveyor, which have been adopted by the plaintiffs has also given clean chit to the defendant and has not attributed any kind of negligence to him in the conduct of the transaction in question.
4.5. Moreover, the defendant never authorized his driver to appoint a cleaner on the vehicle carrying the consignment in question and the same was done without his knowledge.
4.6. Since the defendant has also suffered loss in the transaction in question, therefore, the present suit for National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 6 of 31 7 recovery of damages for the loss of consignment is not maintainable against him.
4.7. The suit is also bad for misjoinder and non-joinder of parties.
4.8. The person who has instituted the present suit on behalf of the plaintiffs has not placed on record any authorisation executed in his favour by them for filing the claim in hand.
4.9. The defendant acted with due care and caution in the transportation of the consignment and no negligence can be attributed to him thereby causing any kind of loss or damage to the plaintiffs.
4.10. The consignment alongwith the trailer truck was stolen in the transit and the defendant did not play any role in the same.
4.11. The defendant issued non-delivery certificate dated 21.12.2004 to plaintiff no.2 on his request and by issuing the same, he did not admit his liability towards the plaintiffs for the suit amount.
4.12. The trailer truck carrying the consignment was stolen, which is a criminal offence and it was the duty of police to track the actual thief and recover the consignment and no fault can be found with the defendant in the failure of the police in doing the same.
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 7 of 31 8 4.13. The consignment was not delivered at the designated place owing to the reasons which were beyond the control of defendant firm and the defendant had exercised due care and caution in the conduct of the business and did not commit any breach of trust.
5. Thereafter, based upon pleadings of parties, the following issues were framed on 18.07.2013:-
(1) Whether the suit is bad for misjoinder and non-
joinder of parties? OPD.
(2) Whether the suit has been properly valued for the purpose of court fees? OPD.
(3) Whether the suit has been filed by a duly authorized person? OPP.
(4) Whether the plaintiffs have no locus-standi to file the present suit against the defendants? OPD. (5) Whether the plaintiff is entitled to receive the suit amount? OPP.
(6) Whether the plaintiff is entitled to receive the interest on the suit amount from the date of filing of the suit till realization and if so at what rate? OPP.
(7) Relief. 6. PLAINTIFFS EVIDENCE AND DOCUMENTS RELIED UPON.
6.1. In support of its case, plaintiff no.1 company has examined the following witnesses :
A. Sh. P.K. Gupta, Assistant Manager, National Insurance Corporation Limited as PW-1; and National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 8 of 31 9 B. Sh. Vivek Johar, Surveyor, M/s Protocol Surveyors and Engineering Pvt. Ltd. as PW-2.
PW-1 and PW-2 tendered their evidence affidavits Ex.PW-1/A and Ex.PW-2/A respectively in their examination-in-chief.
6.2. In his evidence, PW-1 has relied upon the following documents:
A. Certificate of Incorporation of plaintiff no.1 company as Ex.PW-1/1;
B. Photocopy of Board Resolution passed in the meeting of Board of Directors of plaintiff no.1 Insurance Company held on 16.05.1989 as Ex.PW-1/2; C. The Invoice bearing no.195/2004-2005 dated 22.09.2004 as Ex.PW-1/3;
D. The consignment receipt bearing no.7383 dated 25.09.2004 issued by the defendant as Ex.PW-1/4; E. Photocopy of FIR bearing no.99/2004 under Section 407 IPC got lodged by plaintiff no.2 at Police Station Lalru on 29.09.2004 as Ex.PW-1/5;
F. Final report dated 06.12.2004 filed by the police as Ex.PW-1/6;
G. Office copy of the notice dated 08.12.2004 issued by plaintiff no.2 to defendant as Ex.PW-1/7;
H. Postal receipt as Ex.PW-1/8;
I. The loss / non-delivery certificate dated 21.12.2004
issued by the defendant as Ex.PW-1/9;
J. The copy of insurance policy issued by plaintiff no.1
company bearing Marine Cargo Policy
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 9 of 31 10 No.421104/21/03/4400066 against all transit risks as Ex.PW-1/10;
K. Marine Survey report as Ex.PW-1/11; L. The receipt dated 21.03.2028 of Rs.25,88,732/-
executed by plaintiff no.2 as Ex.PW-1/12; M. Special Power of Attorney executed by plaintiff no.2 in favour of plaintiff no.1 as Ex.PW-1/13; N. Letter of subrogation as Ex.PW-1/14; O. Certified copy of incorporation certificate of plaintiff no.2 company as Ex.PW-1/15;
P. Certified copy of the Board Resolution passed in the meeting 13.09.2006 as Ex.PW-1/16.
Q. Notice dated 07.03.2013 under Order XII Rule 8 CPC issued by Counsel for plaintiffs as Ex.PW-1/17, R. Postal receipts dated 11.03.2013 as Ex.PW-1/18 and Ex.PW-1/19.
6.3. In his evidence, PW-2 has relied upon the Marine Surveyor Report already Ex.PW-1/11.
7. No other witness was examined on behalf of plaintiff. Accordingly, plaintiff's evidence was closed.
8. DEFENDANT EVIDENCE AND DOCUMENTS RELIED UPON.
8.1. In support of its case, defendant partnership firm examined one of its partner Sh. Gurmit Singh as DW-1, who tendered his evidence affidavit as Ex.DW-1/A in his examination-in-chief.
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 10 of 31 11 8.2. In his evidence, DW-1 has relied upon the following document :
A. Translated report of the chargesheet filed by the police under Section 173 of Cr.P.C. as Mark A.
9. No other witness was examined on behalf of defendant. Accordingly, defendant evidence was closed and final arguments were heard.
10. I have heard Ld. counsels for both the parties and gone through the evidence on record as well.
11. My issue-wise finding is as under:--
12. ISSUE NO.5.
Whether the plaintiff is entitled to receive the suit amount? OPP.
And ISSUE NO.6.
Whether the plaintiff is entitled to receive the interest on the suit amount from the date of filing of the suit till realization and if so at what rate? OPP. 12.1. As both the aforesaid issues are interlinked and fundamental to the claim of plaintiff, hence they are taken up together for adjudication at the very outset. The onus to prove both these issues is upon the plaintiffs.
12.2. In order to prove the claim of plaintiff no.1 company, its Assistant Manager, Sh. P.K. Gupta stepped into the National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 11 of 31 12 witness box as PW-1 and deposed that plaintiff no.1 is an insurance Company duly incorporated and registered under The Companies Act, 1956 and its certificate of incorporation is Ex.PW-1/1 and Sh. Atul Bishnoi, Manager at the Regional Office-I, New Delhi was authorised to sign, verify and file the present suit vide Board Resolution dated 16.05.1989 Ex.PW-1/2.
12.3. PW-1 has deposed that defendant is a common carrier in the business of carriage of goods by road from one place to another for consideration and vide invoice dated 22.09.2004 bearing no. 195/2004-2005 Ex.PW-1/3, an export consignment of 100% cotton yarn weighing 20417.720 KV packed in 451 cartons / consignment was booked by plaintiff no.2 with the defendant for transporation from Lalru (Punjab) to Delhi and the defendant issued a consignment receipt no.7383 dated 25.09.2004 Ex.PW-1/4 to the said effect.
12.4. PW-1 has further deposed that the delivery of the consignment / goods was received by the defendant for transportation on 27.09.2004, but the truck carrying the same did not reach the designated place at Delhi and accordingly an FIR was lodged by plaintiff no.2 on 29.09.2004 Ex.PW-1/5 wherein after investigation, the final report dated 06.12.2004 Ex.PW-1/6 was filed by the police and the consignment remained untraced.
12.5. PW-1 has further deposed that the defendant and his employees acted negligently in the handling of consignment National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 12 of 31 13 during transit leading to its loss and failed to deliver the same at its designated destination and after receiving the report and scrutinzing the claim of plaintiff no.2, in the discharge of its contractual obligations, plaintiff no.1 being the insurer made payment of Rs.25,88,752/- to plaintiff no.2 vide receipt Ex.PW-1/12 as insurance claim settlement and thereupon, plaintiff no.2 assigned, transferred, abandoned and subrogated all its rights, claims and beneficial interest in the insured subject matter goods, including the right to recover and realize the amount of compensation from the defendant for the loss of consignment and in pursuance thereof executed Special Power of Attorney Ex.PW-1/13 and Letter of Subrogation Ex.PW-1/14.
12.6. PW-1 has deposed that a notice Ex.PW-1/7 under Section 10 of The Carriers Act was issued by plaintiff no.2 thereby calling upon the defendant to reimburse a sum of Rs.27,15,645/- for the loss of consignment, which was duly served upon him vide postal receipts Ex.PW-1/8 and in response, defendant issued the loss / non-delivery certificate dated 21.12.2004 as Ex.PW-1/9 thereby admitting the loss of consignment.
12.7. Plaintiff no.1 has also examined PW-2 Sh. Vivek Johar, who deposed that he is one of the surveyors of M/s Protocol Surveyors and Engineers Pvt. Ltd. and was deputed by plaintiff no.1 to verify and assess the claim preferred by plaintiff no.2 in respect of the loss of consignment in question by defendant during transit from Lalru (Punjab) to Delhi and in pursuance thereof, he visited the plant of National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 13 of 31 14 plaintiff no.2 on 06.10.2004 and got it verified that a trailer truck vehicle was loaded in the afternoon of 27.09.2004.
12.8. PW-2 has further deposed that he also contacted the representative of the defendant transporter and visited the Sukhdev Dhaba, where the factum of seizure of an empty container was verified from the people present there and after a detailed enquiry, the loss suffered by plaintiff no.2 was assessed at Rs.25,88,732/- and he prepared the report to the said effect Ex.PW-1/11.
12.9. In rebuttal, DW-1 Sh. Gurmeet Singh stepped into the witness box and deposed that he is one of the partners of defendant firm and plaintiff no.1 company has no right to claim any damages and file the present suit as there is no privity of contract between them. DW-1 has deposed that plaintiff no.2 has no right to authorize plaintiff no.1 to file any claim against the defendant firm and they have no cause of action to file the present suit seeking damages as no negligence / criminal act can be attributed either to the defendant or its driver for the loss of consignment as the theft committed during the transit was not within their control and the same is also evident from the police invesstigation and the Surveyor Report.
12.10. DW-1 has further deposed that the trailer truck carrying the consignment was stolen after intoxicating the driver and the defendant firm has also suffered losses owing to the incident in question.
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 14 of 31 15 12.11. DW-1 has deposed that the defendant firm is not liable for the loss of consignment suffered by the plaintiffs as the incident in question was the result of serious law and order situation prevailing on the highways of State of Haryana, where an organized group of thieves and dacoits was operating and looting / robbing the trucks / carriers by using force or by intoxicating the drivers and number of FIRs were registered in this regard.
12.12. In a nutshell, plaintiff no.1 is the insurer, plaintiff no.2 is the assured / consignor and defendant is the common carrier to whom the consignment was entrusted vide receipt dated 25.09.2004 Ex.PW-1/4 for transportation from Lalru to Delhi, but the trailer truck carrying the consignment did not reach the designated place and an FIR of theft was got lodged and after investigation, police chargesheeted the driver of the trailer truck as an accused but the goods / container remained untraced and thereafter, plaintiff no.2 / consignor filed its claim before plaintiff no.1 / Insurance Company and after following the due procedure, the claim was settled at a sum of Rs.25,88,732/-, which was paid to plaintiff no.2, who in turn executed a Letter of Subrogation Ex.PW-1/14 and a Special Power of Attorney Ex.PW-1/13 thereby conferring / vesting plaintiff no.1 with the right to file claim against the defendant thereby seeking recovery of aforesaid sum of Rs.25,88,732/- as damages.
12.13. Succinctly stating, for determining the fate of the claim in hand, this Court is required to record a finding regarding the liability of defendant to recompense plaintiff National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 15 of 31 16 no.1 company for the payment made by it to plaintiff no.2 as insurance payout stemming from the loss of consignment suffered by the latter owing to the alleged negligence of defendant.
12.14. Before getting any further, it is important to highlight that the defendant has not disputed the loss of consignment during transit and issuance of the loss / non-delivery certificate dated 21.12.2004 Ex.PW-1/9 to plaintiff no.2 regarding the loss of aforesaid consignment.
12.15. So far as the legal position is concerned, as the transaction in question took place in the year 2004, hence, the issue regarding the liability of defendant carrier for the loss or damage of consignment would be governed by the provisions of The Carriers Act, 1865.
12.16. For determining/ ascertaining the liability of defendant /carrier, Section 8 & 9 of The Carriers Act, 1865 are relevant and the same are reproduced hereinbelow:-
8. Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent-
Notwithstanding anything herein before contained, every common carrier shall be liable to the owner for loss of or damage to any [property (including container, pallet or similar article of transport used to consolidate goods) delivered] to such carrier to be carried where such loss or damage shall have arisen from the ** criminal act of the carrier or any of his agents or servants [and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of section 3 apply and in respect of which the declaration required by that section has not been made, where National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 16 of 31 17 such loss or damage has arisen from the negligence of the carrier or any of his agents or servants].
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 container, pallets or similar article 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.
12.17. A cursory reading of the aforesaid provisions makes it plain that a common carrier is liable to the consignor for any kind of loss or damage caused to the consignment, provided the same is the result / outcome of the criminal act or neglience of carrier or any of his agents or servants.
12.18. Furthermore, in a suit instituted at the instance or on behalf of the consignor seeking damages / compensation from the carrier for the loss of consignment, it not the claimant who is required to establish the negligence or unlawful act on the part of the carrier or his employee rather Section 9 of The Carriers Act, 1865 per se raises the presumption of negligence and burdens the carrier with the responsibility to prove that there was no lack of due diligence on his part in the handling of consignment during transit, when loss / damage was caused.
12.19. Briefly stating in a suit instituted by the claimant against a carrier under the provisions of The Carriers Act, 1865, the claimaint is only required to prove the loss / National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 17 of 31 18 damage of its consignment as there is a presumption of negligence against the carrier.
12.20. For the sake of reference, in Maple Logistics Pvt. Ltd. Vs. ICICI Lombard General Insurance Corporation Ltd. & Ors., RSA No. 369/2014, dated 19.12.2014, Hon'ble Delhi High Court held that in a suit filed under Carriers Act, 1865, the plaintiff is only required to prove his loss and there is a presumption of negligence against the carrier for such loss.
12.21. At this stage, it is worthwhile to mention that the defendant has not disputed his legal standing / status of carrier in the transaction in question and payment of Rs.25,88,732/- by plaintiff no.1 to plaintiff no.2 as an insurance payout for the loss of consignment suffered by the latter at the hands of the defendant.
12.22. In light of the aforesaid legal and factual position, this Court would now analyse the defence set up by the defendant for determining as to whether he has been successful in rebutting the presumption of negligence raised against him by Section 9 of The Carriers Act, 1865, which casts a duty upon the carrier to prove that he and his employees acted prudently with due care and caution during the transporation of consignment and despite that the damage / loss in question was caused.
12.23. Before getting any further, it is important to make reference to the following authoritative judgemnet wherein National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 18 of 31 19 the level of accountability of a common carrier towards the consignor were discussed in Patel Roadways Limited Vs. Birla Yamaha Limited AIR 2000 SC 1461, Hon'ble Apex Court held that the liability of a carrier in India is like that of an insurer and is an absolute liability only subject to an act of god or a special contract which the carrier may choose to enter with the consignor/ customer.
12.24. Now coming to the case pleaded by the defendant.
12.25. A bare perusal of the written statement filed by the defendant reveals that he has not pleaded anything plausible in his defence which could even indicate that despite taking every possible care and precaution on his part in the transporation of the consignment, the loss / damage in question occurred.
12.26. In his written statement, the defendant has simply stated that the consignment was stolen in transit after intoxicating his driver.
12.27. However, the notable thing is that neither in the written statement nor during his deposition as DW-1, the defendant has disclosed name of the aforesaid driver who was driving the said trailer truck at the time of incident.
12.28. Furthermore, during his cross-examination when a suggestion was put to the defendant by Ld. Counsel for the plaintiffs suggesting the name of the driver as Harminder Pal Singh, he flatly denied the same.
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 19 of 31 20 12.29. At this stage, it is material to highlight that during his deposition as DW-1, the defendant has relied upon only one document Mark A i.e. the chargesheet filed by the police wherein after conclusion of investigation, Sh. Harminder Pal Singh, driver of the trailer truck carrying the consignment at the time of the incident was arrayed as the accused, which clearly indicates that the defendant was well informed / aware with the name of the driver who was in the control of the consignment at the time of the incident.
12.30. This Court is of the opinion that the aforesaid conduct of the defendant in feigning ignorance on the name of the driver is dubious and puts his intention / credibility under suspicion as it does not appear normal as the conduct of an ordinary prudent person and it is hard to believe his reply regarding his ignorance qua the name of the driver who was driving the trailer truck at the time of incident, in light of the fact that the name of the driver is clearly recorded in the only document relied upon by the defendant.
12.31. Moreover, the aforesaid ommission / conduct of the defendant is shocking and speaks volume about his abnormal / conduct as it is an indisputed position of fact that the vehicle carrying the consignment was driven by the driver of defendant's transport firm and it is hard to believe that he was not aware of the name of the said driver.
12.32. In a nutshell, the aforesaid inconsistency / contradiction in the version of the defendant on the aspect of National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 20 of 31 21 the identity of the person who was driving the trailer truck at the time of the incident discredits his defence against the claim of the plaintiff as this Court is of the opinion that the defendant stated a blatant lie while denying the suggestion put to him by Ld. counsel for the plaintiffs that one Sh. Harminder Pal Singh was driving the truck at the time of the incident.
12.33. Even otherwise, the record reflects that the defendant has chosen not to summon the driver of the vehicle who was in control of the consignment at the time of the incident, an omission which raises reasonable suspicion as the said driver was one such person / witness, who could have ellaborated the sequence of events leading to the loss of consignment in categorical terms as he was having the first hand knowledge of the entire incident, being the only eye witness of the incident in question.
12.34. In other words, the case set up by the defendant does not inspire confidence.
12.35. Now coming to an another aspect of the defence set up by the defendant. It is a matter of record that in his written statement, the defendant has stated that the consignment was stolen during transit after intoxicating the driver of the vehicle and has made a passing reference / indirect mention about the role of cleaner of the trailer truck in the said theft.
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 21 of 31 22 12.36. However, the notable thing is that during his examination-in-chief as DW-1, the defendant remained completely silent regarding the role and identity of aforesaid cleaner in the loss / theft of consignment, which clearly indicates that he has been changing his stance as per convenience and not being entirely truthful in putting forth his version regarding the chain of events resulting into loss of the consignment.
12.37. Hence, it is clear that the version of the defendant lacks consistency and does not appear plausible.
12.38. Furthermore, it is also important to underline that the plea taken by the defendant in his written statement regarding the role of the cleaner in the theft of consignment also has the following three aspects:
A. Firstly, the defendant / transporter has not pleaded participation of plaintiff no.2 in the appointment of the aforesaid cleaner and stated that the cleaner was appointed by his driver, so legally speaking and by applying the doctrine of agency, the cleaner acted / became the sub-agent of defendant and by virtue of Section 8 of The Carriers Act, 1865, he is liable for the loss or damage caused to the consignment by the criminal act of his agent.
B. Secondly, in his written statement, the defendant has pleaded that the cleaner was appointed by his driver and he was having no control over the same, an assertion which clearly establishes the negligence of the driver of the truck / employee of defendant in not execising due care and caution National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 22 of 31 23 while appointing the cleaner, which led to loss of consignment and as per Section 8 of The Carriers Act, the common carrier is liable for loss or damage caused by not only his neglect or fraud but of his agent as well; and C. Thirdly, the plea of the defendant that he had no control over the appointment of the aforesaid cleaner also indicates his negligence in the conduct of business.
12.39. In a nutshell, there is a complete absence of material available on record for rebutting the presumption of negligence or criminal act raised by Section 9 of The Carriers Act, 1865 against the defendant and on the contrary, the record of the case raises serious doubt about his conduct.
12.40. At the cost of repetition, it is reiterated that in a suit seeking compensation / damages against the carrier, an omission on the part of the plaintiff to file evidence establishing the negligence / criminal act of the carrier or his agent is immaterial by virtue of Section 8 and 9 of The Carriers Act, 1865, rather the defendant carrier is required to bring on record negative evidence for proving the absence of negligence / criminal act on his part in the conduct of business / transaction.
12.41. This Court has highlighted the aforesaid legal position as except making bald assertions of facts, the defendant has not brought on record any positive evidence for rebutting the presumption of negligence raised against him by Section 9 of The Carriers Act, 1865.
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 23 of 31 24 12.42. Accordingly, this Court is of the opinion that the defendant is liable to compensate plaintiff no.1 Insurance Company for the loss of consignment and plaintiff no.1 is entitled to recover the suit amount to the tune of Rs.25,88,732/- from the defendant in terms of the mandate of Section 8 of The Carriers Act, 1865.
12.43. So far as the rate of interest is concerned, it is a well settled position of law that the Courts can award interest exceeding 6% per annumm in commercial transactions. Reference can be made to the judgment passed by Hon'ble Apex Court in IK Merchants Private Limited Vs. The State of Rajasthan, 2025 INSC 418.
12.44. Hence, plaintiff no.1 is held entitled to receive interest @ 10% per annum upon the aforesaid principal amount of Rs.25,88,732/-. Accordingly, both the aforesaid issues are decided in favour of the plaintiffs and against the defendant.
13. ISSUE NO.1.
Whether the suit is bad for misjoinder and non- joinder of parties? OPD.
13.1. The onus to prove this issue is upon the defendant. The testimony of witnesses are not reproduced herein for the sake of brevity.
National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 24 of 31 25 13.2. It is a matter of recover that DW-1 Sh. Gurmeet Singh did not utter even a single word about the present suit being bad in law owing to non-joinder and mis-joinder of parties.
13.3. In view thereof, the present issue is decided in favour of the plaintiff and against the defendant.
14. ISSUE NO.2.
Whether the suit has been properly valued for the purpose of court fees? OPD.
14.1. The onus to prove this issue is upon the defendant. The testimony of witnesses are not reproduced herein for the sake of brevity.
14.2. It is a matter of recover that DW-1 Sh. Gurmeet Singh did not utter even a single word about the valuation of the present suit for the purpose of Court fee.
14.3. Even otherwise, it is a matter of record that the plaintiffs have affixed a Court fee of Rs.27,623/- for the suit amount to the tune of Rs.25,88,732/-, which is appropriate Court fee.
14.4. In view thereof, the present issue is decided in favour of the plaintiffs and against the defendant.
15. ISSUE NO.3.
Whether the suit has been filed by a duly authorized person? OPP.
And National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 25 of 31 26 ISSUE NO.4.
Whether the plaintiffs have no locus-standi to file the present suit against the defendants? OPD. 15.1. Both the aforesaid issues are interconnected, hence, they are taken up together for adjudication and the onus to prove the same is upon the plaintiffs.
15.2. The testimonies of the witnesses are not reproduced herein for the sake of brevity.
15.3. The present suit has been instituted by the plaintiff no.1 Insurance Company by impleading the consignor / assurer as plaintiff no.2 against the common carrier seeking recovery of compensation / damages for the losses suffered by the consignor due to the theft / loss of consignment during transit.
15.4. The plaintiff no.1 insurance company has pleaded that plaintiff no.2 consignor has subrogated its right to file the claim against the common carrier in its favour by executing the Letter of Subrogation Ex.PW-1/14 and Special Power of Attorney Ex.PW-1/13. It is to be noted that the aforesaid plea and the alleged execution of aforesaid documents by plaintiff no.2 in favour of plaintiff no.1 has remained indisputed on the part of the defendant in his defence.
15.5. In plain terms, subrogation is the substitution of one person for another and under the doctrine of subrogation an insurer that has paid the insurance amount to the assured at the time of claim settlement under an insurance policy is National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 26 of 31 27 entitled to all the rights and remedies belonging to the insured against the third party with respect to any loss covered by the policy.
15.6. In other words, under subrogation, an insurer who has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy.
15.7. It is a matter of record that for establishing its right to institute the present suit against the common carrier / defendant, the plaintiff no.1 Insurance Company has brought on record the Letter of Subrogation Ex.PW-1/14 and the Special Power of Attorney Ex.PW-1/13 executed by plaintiff no.2 assured in its favour.
15.8. A bare perusal of the Letter of Subrogation Ex.PW-1/14 manifests that the assured plaintiff no.2 assigned, transferred and abandoned all its actionable rights, title and interest qua the consignment in question in favour of plaintiff no.1 Insurance Company.
15.9. Moreover, under Ex.PW-1/14, plaintiff no.2 authorized the plaintiff no.1 Insurance Company to sue the carrier / defendant in its own name for seeking recovery of loss / damages in question.
15.10. Hence, this Court is of the opinion that plaintiff no.1 company is entitled to institute the present suit seeking recovery of compensation / damages from the common National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 27 of 31 28 carrier for the loss of consignment suffered by the insured plaintiff no.2.
15.11. Moreover, while dealing with the issue of subrogation, Hon'ble Apex Court in Economic Transport Organization Vs. M/s Charan Spinning Mills (Pvt.) Ltd. & Anr., Civil Appeal No. 5611/1999 observed that where the assured executed a subrogation-cum-assignment in favour of the insurer, the assured is left with no right or interest to sue the wrongdoer on its own account and for its own benefit.
15.12. Besides the Letter of Subrogation, the Power of Attorney Ex.PW-1/13 is also a relevant document for deciding the locus standi of plaintiff no.1 to file the present claim against the defendant as it has been attested by notary public and Section 85 of The Indian Evidence Act raises a presumption of genuineness with respect to a power of attorney authenticated by a notary public.
15.13. Accordingly, in light of the aforesaid statutory presumption, this Court is required to draw the presumption to the effect that the power of attorney Ex.PW-1/13 was executed by plaintiff no.2 in favour of plaintiff no.1 and the person executing such power of attorney was duly authorized to that effect.
15.14. In view thereof, this Court is of the opinion that plaintiff no.1 company is well within its legal right to bring the present lawsuit against the defendant. National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 28 of 31 29 15.15. For the sake of completion, it is to be noted that the record of the present case reflects that out of an abundance of caution, plaintiff no.1 Insurance Company has also impleaded / joined the consignor as plaintiff no.2 on the strength of the power of attorney Ex.PW-1/13. So, it is clear that there is no defect in the locus-standi of plaintiff no.1 Insurance Company to file the claim in hand against the defendant/ common carrier.
15.16. In light of the foregoing discussion, this Court is of the opinion that the plaintiffs have a perfect locus-standi to file the present suit against the defendant.
15.17. So far as the issue of filing of the present suit by a duly authorized person is concerned, it is a matter of record that plaintiff no.1 Insurance Company is a government entity and it was held by Hon'ble Delhi High Court in M/s Sangat Printers Pvt. Ltd. Vs. M/s Wimpi Internationala Limited RFA No. 657/2003 dated 17.01.2012 that the cases filed by the companies should not be dismissed on technical ground with respect to validity of institution and as long as the suit is contested to the hilt, it ought to be held that the suit was validly instituted and filed.
15.18. Moreover, the present suit has been instituted by one Mr. Atul Vishnoi, who claimed himself to be the Principal Officer of the plaintiff no.1 company and it is a matter of record that the aforesaid assertion has not been disputed by the defendant either in his written statement or during the National Insurance Company Ltd. & Anr. Vs. Navjot Cargo Movers Page 29 of 31 30 cross-examination of PW-1, Assistant Manager of plaintiff no.1 Insurance Company.
15.19. The aforesaid designation of Mr. Atul Vishnoi is material for deciding the issue of institution of the present suit by a duly authorised person as under Order XXIX CPC, a suit can be validly instituted by the Principal Officer of the plaintiff company even in the absence of a formal board resolution. Reference can be made to the judgment passed by Hon'ble Delhi High Court in HCL Comnat Systems & Services Ltd. Vs. Ashok Kumar Arora, RFA No. 43/2010 dated 12.10.2011.
15.20. In light of the foregoing discussion, this Court is of the opinion that not only the plaintiff no.1 company has the locus-standi to file the present suit but the suit has also been instituted by a duly authorized person.
15.21. Accordingly, both the aforesaid issues are decided in favour of the plaintiffs and against the defendant.
16. RELIEF:-
16.1. In the light of above discussions and evidence on record, the suit of the plaintiff stands decreed in the following terms :
A. The plaintiff no.1 Insurance Company is held entitled to recover Rs.25,88,732/- from the defendant alongwith pendente lite and future interest @ 10% per annum till the date of realization.
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17. Parties are left to bear their own costs.
18. Decree sheet be prepared accordingly.
19. File be consigned to record room.
Announced in the Open Court MANOJ by MANOJ Digitally signed on 3rd NOVEMBER, 2025.
KUMAR KUMAR SHARMA SHARMA Date: 2025.11.03 16:22:01 +0530 (MANOJ KUMAR SHARMA) DJ-07 (West) Tis Hazari Courts, Delhi.
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