Delhi District Court
Royal Sundaram Alliance Insurance Co. ... vs South Leo Packers And Movers In India on 3 September, 2014
IN THE COURT OF SH. VIKRANT VAID,
CIVIL JUDGE04 (CENTRAL)
TIS HAZARI COURTS, DELHI
Civil Suit No. : 528/13
Unique ID No.02401C0221242009
1. Royal Sundaram Alliance Insurance Co. Ltd
Through Deputy General Manager (Legal),
45 & 46 Whites Road,
Chennai600014.
2. Hindustan CoCoCola Beverages Private Limited
Through Manager
5th K.M Milestaone Masuri,
Gulawathi Road, Tehsil, Hapur District,
Ghaziabad (U.P.) ...........Plaintiffs
Versus
1. South Leo Packers and movers in India
7483, Bansal Appartments,
C1, 1st Floor, Ram Nagar,
Tel Mill Marg, Pahar Ganj,
Delhi110055
Through the Authorised Representative
2. Aanchal Parivahan
Main Road,
Near India Custom Ruxaul ...............Defendants
CS No. 528/13 Page 1 of 12
Date of Institution : 26.05.2009
Date of judgment : 03.09.2014
SUIT FOR RECOVERY OF RS.2,92,762/
J U D G M E N T:
1. Brief facts of the plaintiff's case are that it is a registered company and carrying on the business of General Insurance. Plaintiff no.1 has been authorised by Hindustan CocaCola Beverages Private Limited (plaintiff no.2) vide a letter of SubrogationcumSpecial Power of Attorney to file the present suit on their behalf as well. The defendant is a common carrier with whom plaintiff no.2 booked 178 boxes of plastic closures containing 4,60,000 pieces of 'Coca Cola' and 2, 52,000 pieces of 'Thumbs up' for carriage from Ghaziabad to Jalpaigudi. Defendant no.1 issued receipt against the consignment and the goods were consigned under invoice of Rs.2,74,515/.
2. The goods got damaged during consignment and, therefore, the same could not be delivered to the consignee. Plaintiff no.2 issued loss notice upon the defendant no.1 for a claim of Rs.2,74,515/. Defendant no.1 CS No. 528/13 Page 2 of 12 stated that it had worked under defendant no.2 for the said consignment. The defendant no.2 accepted the quantum of damages and extended a claim certificate to this effect.
3. The plaintiff no.2 lodged a claim before the plaintiff no.1 under the insurance policy for the loss so suffered. After completing the formalities, plaintiff no.1 paid Rs. 2,58,130/ to the plaintiff no.2 as full and final settlement of the claim. Thereafter, plaintiff no.2 executed a letter of subrogation and special power of attorney in favour of plaintiff no.1. Hence, the present suit has been filed for recovery of Rs.2,58,130/ from the defendants.
4. Written statement was filed by defendants.
Defendants raised the preliminary objections that plaintiff has suppressed material facts from the Court and there is no privity of contract between the plaintiff no.1 and the defendants. On merits, it was averred that the consignment was duly delivered at the Jalpaigudi office of defendant no. 2 against proper receipt. The defendants denied all other averments made in the plaint.
5. Replication was filed by the plaintiff no.1 to the CS No. 528/13 Page 3 of 12 written statement wherein plaintiff no.1 reiterated the averments made in the plaint and denied the averments made in the written statement.
6. After completion of pleadings, following issues were framed by Ld. Predecessor of this Court :
i) Whether the plaintiff no.1 is entitled to a decree for recovery of Rs.2,92,762/ alongwith pendente lite interest @ 7 % per annum from the defendants? OPP1.
ii) Relief.
7. In plaintiff's evidence, Sh. G. Vinay Prakash was examined as sole witness 'PW1'. He reiterated the averments made in the plaint and proved the following documents:
a. His affidavit of evidence as Ex.PW1/A. b. Certificate of Incorporation issued by Registrar of Companies, Chennai as Ex. PW1/1. c. Authorization letter dated 19.01.2007 as Ex. PW 1/2.
d. Another authorization letter dated 15.02.2009 as Ex. PW1/3.
e. Copy of policy dated as Ex. PW1/4. f. Receipt /G.R. No. 2791 dated 27.05.2006 as Ex. PW1/5.
g. Invoice no. 07531 dated 27.05.2006 as Ex. PW 1/6.
h. Notice dated 03.06.2006 alongwith postal receipt and acknowledgment cards as Ex. PW1/7 CS No. 528/13 Page 4 of 12 (Colly).
i. Letter dated 20.10.2006 as Ex. PW1/8. j. Covering letter dated 20.10.2006 as Ex. PW1/9. k. Claim certificate dated 22.10.2006 as Ex. PW 1/10.
l. Discharge voucher dated 08.06.2007 as Ex.PW 1/11.
m. Plaintiff no. 2 executed a letter of Subrogation cum Special Power of Attorney in favour of the plaintiff no. 1 as Ex. PW1/12.
n. Legal notice dated 02.02.2008 as Ex. PW1/13.
8. In defence evidence, two witnesses were examined.
Sh. Bal Kishan Sharma and Sh. Manoj Sharma were examined as 'DW1' and 'DW2' respectively. Both deposed on the lines of the written statement and relied upon the document which is Ex. PW1/5 and mark 'A'.
9. I have heard the final arguments and perused the record.
10. The sole issue to be decided is:
Whether the plaintiff no.1 is entitled to a decree for recovery of Rs.2,92,762/ alongwith pendente lite interest @ 7 % per annum from the defendants?
11. Section 101 of the Evidence Act reads as: CS No. 528/13 Page 5 of 12
101. Burden of proof --Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
In Addagada Raghavamma and Anr vs Addagada Chenchamma and Anr 1964 SCR (2) 933, the Hon'ble Apex Court held:
"There is an essential distinction between burden of Proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts."
Thus burden of proving its case rests upon the plaintiff. This burden remains constant and does not shift. As such it goes without saying that the burden of proving the sole issue falls squarely upon the plaintiff no.1.
12. Plaintiff no.1 has placed on record subrogationcum assignment deed executed in its favour by plaintiff no.2 to prove its right to sue the defendants. Section 130 of the Transfer Property Act permits the transfer of such actionable claims.
In Oriental Fire And General Insurance Co Ltd CS No. 528/13 Page 6 of 12 vs Union Of India And Ors. ILR 1979 Delhi 346 (para
19), it was held:
"19. The right of subrogation is embodied in s. 79 of the Act. It does not require a deed. But assignment is by act of parties. It, therefore, requires a deed. The assignee can sue in his own name."
In light of the quoted judgment, argument of defendants counsel that plaintiff no.1 cannot sue the defendants being stranger to the contract is untenable and misconceived. Accordingly, it is rejected.
13. The only dispute between the parties is with respect to performance of the contractual obligation by the defendants. Defendants claim that the consignment was duly delivered at the Jalpaigudi office of the plaintiff no.2. To the contrary, plaintiffs asserted that the goods were received in a damaged condition from the defendants. Here a few circumstances are relevant and require consideration. i. Section 9 of the Carriers Act, 1865 fastens strict liability upon the carrier and reads as: CS No. 528/13 Page 7 of 12
9. Plaintiffs, in suit 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 entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or nondelivery was owing to the negligence or criminal act of the carrier, his servants or agents.
So to establish the liability of defendants, plaintiff has to simpliciter prove that the damage was caused to the goods during transit.
ii. PW1 has proved the letter Ex. PW1/9 issued by the defendant no.2. Infact Ex. PW1/9 has been categorically admitted by DW2 during crossexamination. Ex. PW1/9 contains unequivocal admission regarding the damage of goods during transit and issuance of damage ceritificate in the following words:
"Date: 20Oct06 TO WHOM IT MAY CONCERN This is to inform you that SOUTH LEO PACKERS & MOVERS OF INDIA, Bansal apartment, New Delhi have worked under our company for the CS No. 528/13 Page 8 of 12 delivery of Plastic closures consignment from Hindustran Coca Cola Beverages Pvt. Ltd, Ghaziabad (UP) to Hindustan Coca Cola Beverages Pvt. Ltd, Jalpaiguri (WB), which got damages during Transit.
Hence we are issuing damage certificate on the behalf of South Leo Packers & Movers of India to the Consignee to settle the claim with Insurance Company. Thank You, For, Aanchal Parivahan Mr. Manoj Sharma (Authorised Signatory:)"
ii. Plaintiff has proved the damage certificate as Ex.
PW1/10 wherein defendant no.2 has estimated the transit damage at Rs.2,74,515/. It is noteworthy that the Ex.
PW1/10 was not challenged or questioned by the defendant as is evident from crossexamination of PW1 and the written statement of defendants. Despite awareness and knowledge of Ex. PW1/10, DW2 in his examination inchief has not disputed or denied its genuineness in his affidavit of evidence Ex. DW2/A. Hence, Ex. PW1/10 is relied upon and accepted.
14. It is well settled that admissions are the best CS No. 528/13 Page 9 of 12 evidence against the person making it. (Ref: Thiru John vs. Returning Officer AIR 1977 SC 1724). As DW2, (who is proprietor of defendant no.2 and under whose supervision and control defendant no.1 works) has admitted the damage to goods during transit and assessed the loss at Rs.2,74,515/, the plaintiff no.1 has discharged the onus cast upon it.
15. Plaintiff has placed on record the loss notice as mandated under Section 10 of the Carriers Act, 1865 which is Ex. PW1/7. The original postal receipt showing issuance of loss notice Ex. PW1/7 by way of registered post is also annexed with it. As such, the issuance and service of loss notice Ex. PW1/7 stands established.
16. In light of the discussions above (Para 12 to 15), I find that the plaintiff has successfully established the damage to the goods during transit and compliance of provisions of Carriers Act, 1865 as applicable. As such, plaintiff no.1 has successfully proved the liability of the defendants to the tune of Rs.2,58,130/.
17. Plaintiff is also claiming prelitigation interest @ 7 CS No. 528/13 Page 10 of 12 % per annum w.e.f. 08.06.2007 to 07.05.2009. There is neither any such clause in the consignment note Ex. DW1/A nor any such interest has been claimed in loss notice Ex. PW1/7. Therefore, in absence of any stipulation or claim, plaintiff no.1 is not entitled to any prelitigation interest.
18. Plaintiff no.1 is also claiming pendente lite and future interest @ 7 % per annum. Considering the totality of circumstances, I am of the opinion that ends of justice would be met if plaintiff is granted pendente - lite interest and future interest @ 6 % p.a. Accordingly, I hold that defendant is liable to pay Rs. 2,58,130/ alongwith simple interest @ 6 % per annum.
19. Hence, in light of the above discussions (Para 11 to
18), this issue is decided in favour of the plaintiff no.1 and against the defendants to the extent stated above. Relief
20. In view of the findings given above, the suit of the plaintiff is partly decreed and the defendants are held CS No. 528/13 Page 11 of 12 jointly and severely liable to the following extent:
i. The plaintiff no.1 is entitled to recover Rs.
2,58,130/ from the defendants; and ii. Plaintiff no.1 is also entitled to recover simple interest @ 6 % per annum on Rs. 2,58,130/ w.e.f. the institution of suit till the realization of decretal amount.
21. Cost of litigation is awarded in favour of the plaintiff and against the defendants.
22. Decree sheet be drawn accordingly.
Announced in the open court (Vikrant Vaid) on 03rd September, 2014 Civil Judge04 (Central) Tis Hazari Courts, Delhi CS No. 528/13 Page 12 of 12