Delhi District Court
Om Logistics Limited vs Icici Lombard General Insurance ... on 9 December, 2015
IN THE COURT OF JAGDISH KUMAR
ADJ-06 (WEST): DELHI
RCA No. : 20/14
Unique Case ID No : 02401C0481002012
In the matter of:
Om Logistics Limited
130, Transport Centre, Ring Road
Near Punjabi Bagh Flyover
New Delhi-110035 .............. Appellant
Versus
1. ICICI Lombard General Insurance Company Ltd.
Birla Towers, 5th Floor
25, Bara Khamba Road
New Delhi - 110001
2. Ranbaxy Laboratories Ltd.
Plot no. 90, Sector 32
Gurgaon - 122002, Haryana
(through ICICI Lombard General Insurance Company Ltd.)
And also at :
Ranbaxy Laboratories Ltd.
Shree Shyam Tower
National Highway - 37, Lokhra Charali
Guwahati - 781034
(through ICICI Lombard General Insurance Company Ltd.)
............ Respondents
Date of institution of the Appeal : 10.10.2012
Date of arguments : 09.12.2015
Date of decision : 09.12.2015
JUDGMENT :-
RCA No. : 20/14 Page 1/131. This judgment shall dispose of the appeal as filed by the appellant U/s 96 of Code of Civil Procedure against the judgment/ decree dated 22.08.2012 passed by the Ld. Trial Court.
2. The facts necessary for the disposal of the appeal are that M/s ICICI Lombard General Insurance Company Ltd. is a company duly incorporated under the Companies Act, 1956 having registered office at ICICI Bank Tower, Bandra Kurla Complex, Mumbai-400051 and carrying on its business, apart from other cities, also from its Regional office situated at Birla Tower, 5th Floor, 25 Barakhamba Road, New Delhi.
3. Respondent no. 1 / plaintiff no. 2 is engaged in the business of General Insurance and during the course of business insured M/s Ranbaxy Laboratories Ltd. in respect of its goods comprising of capital goods, raw material, stores, finished and semi finished goods including revital capsules etc. for its transit from any where in India to any anywhere in India. By any mode of conveyance comprising of Air/sea/ road/rail/ postal and courier/ own transport for the period of commencing from 01.1.2007 to 31.12.2007 vide Marine Export Import Insurance (open) Policy bearing no. 2002/0008665 issued at Mumbai in favour of the M/s Ranbaxy Laboratories Ltd.
4. It is stated by the respondents / plaintiffs in the plaint that during the continuance of the aforesaid policy M/s Ranbaxy Laboratories Ltd., consigned its stock comprising of revital capsules from Okhla, New Delhi to Guwahati through Om Logistics Ltd. , the transporter RCA No. : 20/14 Page 2/13 vide GR/CN No.3780384 dated 17.03.2007. The consignment was consisting total 110 packages weighing to 352 kgs comprising of 11000, 10s strips worth valuing to Rs.5,08,420/- vide aforesaid GR/CN.
5. It is stated by the respondents/ plaintiffs that when goods were delivered to the M/s Ranbaxy Laboratories Ltd at its Guwahati office on 27.03.2007. There were short of 2 corrugated boxes containing 200 strips of 10s Revital capsules each valuing to Rs. 46.22 totaling to Rs. 9,244/- and 2900 strips of 10s Revital capsules each valuing to Rs. 46.22 totaling to Rs. 1,34,038/- were damaged due to water wet. The total damage / short valued of the goods were to the tune of Rs. 1,43,282/-. The entry in this regard was immediately made on the back of aforesaid GR/CN and the signature of the person of the appellant / defendant company, who delivered the goods to the M/s Ranbaxy Laboratories Ltd, were obtained in confirmation of the aforesaid shortage / damage. The aforesaid loss caused to M/s Ranbaxy Laboratories Ltd on account of the negligence of the appellant / defendant and its agent who did not handled the goods with proper care and caution.
6. It is stated by the respondents / plaintiffs that M/s Ranbaxy Laboratories Ltd vide its letter / claim notice dated 28.03.2007 informed to Om Logistics Ltd. at its Guwahati office about the aforesaid loss/ damage/ shortage caused and claimed a sum of Rs. 1,43,282/- + Rs. 14,328.20 as incidental charges totaling to Rs. 1,57,610/-. Since the responsibility / liability of carrier lies with the Om Logistics Ltd..
RCA No. : 20/14 Page 3/137. It is stated by the respondents/ plaintiffs that Om Logistics Ltd.
after receiving the aforesaid claim notice / letter issued a certificate of fact wherein it was admitted that 2900 strips of 10s Revital capsules were damaged and 200 strips of 10s of the said Revital Capsules were short.
8. It is stated by the respondents/ plaintiffs that M/s ICICI Lombard General Insurance Company Ltd. appointed its Surveyor M/s Cunningham Lindsy International Pvt. Ltd. to ascertain the actual loss incurred by the M/s Ranbaxy Laboratories Ltd. The said surveyor ascertained the loss to the tune of Rs. 1,43,282/- vide its report dated 14.05.2007 and the said amount was paid by M/s ICICI Lombard General Insurance Company Ltd. to M/s Ranbaxy Laboratories Ltd.
9. It is stated by the respondents/ plaintiffs that goods were entrusted to the Om Logistics Ltd. in accordance with Carrier Act, 1865 and Om Logistics Ltd. is liable for any loss caused during transit due to any reason. The M/s ICICI Lombard General Insurance Company Ltd. requested to the Om Logistics Ltd. to pay the aforesaid amount of Rs. 1,43,282/- towards the loss caused to the consignment assigned to it.
10. It is stated by the respondents/ plaintiffs that Om Logistics Ltd.
did not make any payment despite the service of the aforesaid letters dated 25.06.2007/28.06.2007. Hence the respondents/ plaintiffs filed this suit.
RCA No. : 20/14 Page 4/1311. The appellant / defendant has filed written statement. The appellant / defendant has taken objection that plaintiff / respondent has no locus standi or authority to file the present suit. It is stated that present suit is hit by provisions of Section 10 of the Carriers Act. The appellant / defendant has denied all the allegations and prayed for dismissal of the suit.
12. On the pleadings of the parties, the following issues were framed by Ld. Trial Court on 10.10.2008:
1. Whether the plaintiff have no locus standi or authority to file the present suit as alleged? OPD
2. Whether the suit is barred by Section 10 of the Carriers Act as alleged? OPD
3. Whether the written statement has not been filed, signed and verified by a duly authorized person as alleged by the plaintiff? OPP
4. Whether the plaintiff is entitled to recovery of suit amount or any other amount as prayed for? OPP
5. Whether the plaintiff is entitled to any interest, if yes, then at what rate and for which period? OPP
6. Relief.
13. Evidence The respondents / plaintiffs has examined one Sh. Sanjay Thakur as PW1 who relied upon the documents i.e. Certificate of Incorporation : Ex. PW-1/1, Special Power of Attorney : Ex. PW-1/2, Letter of subrogation & Special Power of Attorney : Ex. PW-1/3, Marine Export-Import Insurance Policy : Ex. PW-1/4, GR/CN : Ex.
RCA No. : 20/14 Page 5/13PW-1/5, Stock Transfer Note : Ex. PW-1/6, letter / claim notice dated 28.03.2007 : Ex. PW1/7, certificate of fact dated 07.04.07 : Ex. PW1/8, claim application / form dated 28.04.2007 : Ex. PW1/9, final report of surveyor dated 14.05.07 : Ex. PW1/10, photocopy of cheque : Ex. PW1/11, letter dated 25.06.2007 along with the registry receipt : Ex. PW1/12, letter dated 28.06.2007 along with the postal receipt : Ex. PW1/13.
14. The appellant / defendant examined one witness Sh. Vivek Kalia as DW1 who relied upon Special Power of Attorney as Ex. DW1/1, Resolution of Board of Directors as Ex. DW1/2.
15. I have heard Ld. Counsel for appellant and Ld. Counsel for the respondents and given my thoughtful consideration to the submission made by them. I have also carefully gone through the material available on record.
16. It is argued by the Ld. Counsel for appellant that Ld. Trial Court has committed an error by deciding the issue of locus standi of the respondent by holding that respondent is having locus standi or authority to file the present suit. It is submitted by the Ld. Counsel for appellant that General Power of Attorney Ex. PW1/3 is not proved as same is not executed and authenticated by the Notary Public.
17. On the other hand, it is argued by the Ld. Counsel for respondent no. 1 that the Ld. Trial Court has rightly decided the issue of locus standi and authority of the respondent no. 1/ plaintiff no. 2 to RCA No. : 20/14 Page 6/13 file the present suit on the basis of document Ex. PW1/3. Ld. Counsel for respondent no. 1/ plaintiff no. 2 further argued that, even otherwise for the sake of arguments the respondent no. 1 / plaintiff no. 2 is having independent right to claim the recovery from the appellant.
18. Ld. Counsel for appellant has relied upon the judgment of Hon'ble High Court of Delhi in case titled as M/s Electric Construction & Equipment Co. Ltd. Vs. M/s Jagjeet Electrical Work Sirsa Haryana AIR 1984 Del 363. I have gone through the judgment of the Hon'ble High Court of Delhi with utmost regard the judgment is distinguishable on facts. The Hon'ble High Court of Delhi in para no. 7 of the judgment has observed as " 7. Turning to the oral evidence in this case only two witnesses were examined on behalf of the plaintiff. They were Sh. Ram Pershad, Secretary and Sh. Rajesh Ojha, Branch in Charge. Neither of them stated that the General Power of Attorney was executed before a Notary Public, so there is no evidence to show that the document was executed before a Notary Public and certainly there is no authentication appearing on the face of the document."
19. Here, in the present suit the PW1 has categorically deposed in his examination in chief in para no. 3 that respondent no. 2 vide letter of Subrogation and Special Power of Attorney (EX. PW1/3) has empowered the respondent no. 1 / plaintiff no. 2 to institute the recovery proceedings and used its name for the purpose of recovery.
20. The PW1 has been cross examined at length by the appellant on the execution of document Ex. PW1/3. The PW1 has categorically RCA No. : 20/14 Page 7/13 deposed in his cross examination that Mr. Ratnesh Bhasin has prepared the document Ex. PW1/3. There is no suggestion to the witness to the effect that the document has not been properly signed or authenticated by the Notary Public in the entire cross examination of PW1. Rather a suggestion has been put to the witness that document Ex. PW1/3 is forged and fabricated document. By putting this suggestion to the PW1 appellant has admitted the existence of the document Ex. PW1/3 i.e. letter of subrogation and General power of attorney, but he disputes that the document is false and fabricated. The onus shifts upon the appellant to prove how the document Ex. PW1/3 is false and fabricated document.
21. The appellant has not examined any witness from the respondent no. 2 to ascertain whether the respondent no. 2 has given the authority to the respondent no. 1 through document Ex. PW1/3. The defence / objection seems has been taken by the appellant only for the sake of objection. So, here in the present suit the appellant has miserably failed to prove the onus being casted upon it that document Ex. PW1/3 is not executed by respondent no. 2.
22. On the other hand, the PW1 has categorically deposed in examination in chief that respondent no. 2 has executed the document Ex. PW1/3 in favour of respondent no. 1/ plaintiff no. 2. Even otherwise it is not disputed by the appellant that respondent no. 1 has not paid the sum of Rs. 1,43,282/- to the respondent no. 2.
23. The respondent no. 1 is insurer of the goods of the respondent RCA No. : 20/14 Page 8/13 no. 2 which are subject of transportation. If the respondent no. 2 has suffered the losses on account of damage to that articles under transportation. The respondent no. 1 is liable to indemnify the respondent no. 2 for the damages. If respondent no. 1 has paid the damages on account of wrong being done by third person then respondent no. 1 is entitled for recovery of the damaged amount from the wrong doer or the person who has committed damage to the articles under transportation, having his independent right to recover.
24. So, I am of the view that Ld. Trial Court has rightly decided the issue in favour of respondents and against the appellant by holding that respondent no. 2 is having locus standi to file the present suit.
25. One another argument tendered before me by Ld. Counsel for appellant is that the respondents have not given the notice U/s 10 of Carriers Act, 1865. The Ld. Counsel for respondent no. 1 has drawn my attention to the para 7 of the plaint in which the respondent no. 1 has averred that the respondent no. 1 / plaintiff no. 2, vide its letter / claim dated 28.03.2007, informed to the appellant / defendant at its Guwahati office about the above said loss, damage / claim of a sum of Rs. 1,43,282/- + 14,328/- as incidental charges which comes to Rs. 1,57,610.20.
26. Ld. Counsel for respondent no. 1 has also drawn my attention to the reply being replied by the appellant in response to para no. 7 in the written statement. The appellant / defendant has replied in para no. 7 of the written statement as "the contents of para no. 7 of the suit RCA No. : 20/14 Page 9/13 as stated are wrong and same are denied. However, it is not denied that the defendant has received the said letter." It means the appellant / defendant has admitted a fact that he has received the letter of claim dated 28.03.2007.
27. The Ld. Counsel for appellant submitted that in para no. 14 of the written statement appellant / defendant has denied the receiving of notice. I have gone through the contentions as made in para no. 14 of the WS. The denial of the appellant / defendant are evasive denial in this para to the fact of receiving of notice. While in para no. 7 of the WS the appellant / defendant has categorically admitted that defendant has received the letter dated 28.03.2007. So, the plea of the appellant that appellant has not received the notice U/s 10 of the Carriers Act, 1865 is not sustainable.
28. One another argument as tendered by the Ld. Counsel for appellant is that the policy no. 2002/000866/5, through which the goods were insured, categorically find mention that the respondent no. 1 was only liable to pay 70% of the damages and 30% damages has to be borne by the National Insurance Co. Ltd. This fact has been admitted by respondent no. 1 during the course of arguments. It means that the respondent no. 1 was liable only to pay 70% of the damage to the goods and not the 100% which has been made by the respondent no. 1/ plaintiff no. 2 to the respondent no. 2 / plaintiff no. 1. But it does not make any difference to the claim of respondents from the defendant. Because if respondent no. 1 / plaintiff no. 2 has paid any amount in excess it is his right to get back his surplus amount RCA No. : 20/14 Page 10/13 being paid to the respondent no. 2 / plaintiff no. 1. The appellant cannot take any defence of such nature as argued.
29. One another argument tendered by the Ld. Counsel for appellant before me that no notice was given by the respondents of appointment of surveyor and surveyor has given his report arbitrarily. On the other hand it is argued by the Ld. Counsel for respondent no. 1 that notice of the arbitration was given to the appellant and damage was admitted by the appellant as shows from the document Ex. PW1/8.
30. Considering the arguments of Ld. Counsel(s) for the parties. I have gone through the document Ex. PW1/8. The document find mention the line as "number of packages delivered short /damaged :
2900 strips damaged + 200 strips short of Revital Capsules." This letter has been acknowledged on behalf of the appellant. The appellant has nowhere proved on record that 2900 strips + 200 strips of Revital Capsules were not short or damaged.
31. The acknowledgment as given through document Ex. PW1/8 is not disputed at all but Ld. Counsel for appellant has stated that in the letter the words has been inserted "strictly without prejudice". The Ld. Counsel argued that these words in itself proves that the acknowledgment was without prejudice to the rights of appellant. These submission of the Ld. Counsel for appellant cannot be accepted because the appellant has nowhere proved the contrary facts to the damage as acknowledged by the appellant through letter RCA No. : 20/14 Page 11/13 EX. PW1/8. The appellant has no where brought on record that there was no damage at all. Once there is no evidence on record contrary to the acknowledgment then mentioning of work in Ex. PW1/8 "Strictly without prejudice" have no meaning at all.
32. It is also argued by the Ld. Counsel for appellant that goods were transported through railways and same were not transported by the appellant and whatever damage has been caused has been done by the railways. It is argued that appellant is not liable for any damage to the goods being transported.
33. On the other hand, it is argued by the Ld. Counsel for respondent no. 1 that there was no agreement between the appellant and respondents that appellant will transport the goods through railways. It was the liability of the appellant to deliver the goods in good condition.
34. Having considered, the arguments of the Ld. Counsel(s) of parties and perused the record. There is no privity of contract between the respondent and railway. The contract was between the appellant as well as respondent no. 2. It was the duty of the appellant to transport the goods in good condition. It was upto the appellant vide which mode he will transport the goods. The main thing was that the goods have to be delivered in good condition. So this plea of the Ld. Counsel for appellant is also not admissible.
35. No other argument tendered before me.
RCA No. : 20/14 Page 12/1336. In view of the discussion above I find no infirmity and illegality in the judgment of Ld. Trial Court. The appeal is dismissed. The Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (JAGDISH KUMAR)
today i.e on 09.12.2015 ADJ-06 (WEST)/DELHI
TIS HAZARI COURTS
RCA No. : 20/14 Page 13/13