Delhi District Court
National Insurance Co. Ltd vs M/S Hind Express Road Carriers on 29 November, 2011
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. DISTRICT JUDGEII, ROHINI COURTS, DELHI
CS No. 74/11
1. National Insurance Co. Ltd.
4, Pearey Lal Building,
42, Janpath, New Delhi110001
(Through Its Sr. Divisional Manager)
2. M/s D.C.M. Shriram Industries Ltd.
Unit Daurala Sugar Works,
Daurala, Meerut, U.P.
(Through Plaintiff No. 1) ....Plaintiffs
Versus
M/s Hind Express Road Carriers
177, Dharam Kunj Apartment,
Sector9, Rohini, Delhi110085. ...Defendant
Date of Institution the suit : 20.04.2009
Date on which the order was reserved : 22.11.2011
Date of decision : 29.11.2011
JUDGMENT
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff for recovery of Rs. 4,00,845/ against the defendant.
2. The brief facts, in nut shell, are that the plaintiff no. 1 is carrying CS no. 74/11 Page no. 1 of 18 on business of General Insurance, under General Insurance business (Nationalised) Act, 1972 and having tis registered and head office at 3, Middlton Street, Kolkata and its branch offices amongst other places, at 4, Pearey Lal Building, 42, Janpath, New Delhi. It is further stated that Sh. S.C. Ahlawat being the Principal Officer/Sr. Divisional Manager of the plaintiff's company no. 1 is duly authorized to institute and present the suit, by virtue of power of attorney, resolution of board of directors, minutes of the meetings, to do all other acts incidental thereto. It is further submitted that defendant is a common carrier of goods undertaking business as public carrier namely, transportation of goods of customers from one place to another for hire and reward. It is further stated that plaintiff no. 2 is the manufacturer and supplier of Liquor under the name and style of M/s Daurala Sugar Works. It is further stated that plaintiff no. 2 had booked a consignment, containing 1200 cases of Daurala no. 1(NIP) Country Liquor filled in Glass Bottles and packed in corrugated box, from Daurala to its consignee M/s Blue Water Industries Pvt. Ltd. C/o U.P. Cooperative Sugar Mills Federation Ltd. Lucknow, vide invoice no. 40146296 dated 18.10.2007, valued Rs. 13,13,623/ vide G.R. no. 1715 dated 18.10.2007 by Truck No. HR 38C 8155. It is further stated that defendant has failed to deliver the said consignment to its consignee in safe and sound condition as 858.16 out of 1200 cases were delivered in short to the consignee.
CS no. 74/11 Page no. 2 of 18 Resultantly, plaintiff no. 2 had suffered a heavy loss as the truck was reported to have met with an accident during the transit. The damaged consignment was surveyed by Sh. Rajesh Kumar and a loss of Rs. 3,74,207/ was assessed in terms of survey report dated 15.11.2007. The plaintiff no. 2 served a monetary claim upon the defendant dated 13.12.2006 by hand as well as by Regd. Post for a sum of Rs. 4,00,000/ and a claim bill was also raised with the plaintiff no.1 for a sum of Rs. 4,19,556/, including survey fee and 10% extra as per terms and conditions of the insurance policy no. 350100/21/07/4400000082. The defendant instead of settling the claim of the plaintiff no. 2, issued a damage certificate dated 15.12.2007 to the plaintiff no. 2 admitting therein the loss as assessed by the surveyor. It is further stated that plaintiff no. 1 after considering the survey report as well as damage certificate settled the claim of plaintiff no. 2 for a sum of Rs. 4,00,845/ and the same was paid to the plaintiff no. 2 by cheque no. 73312 dated 19.02.2008 and plaintiff no. 2 in lieu of aforesaid payment had executed a Letter of Subrogation and Special Power of Attorney in favour of the plaintiff's no. 1, by enabling the plaintiff no. 1 to claim and recover the amount from the defendant, which has already been paid by plaintiff no. 1 to plaintiff no. 2. Therefore, plaintiff no. 1 is entitled to claim and recover the amount from the defendant in terms of Marine Insurance Act and Common Carriers Act. Legal notice was CS no. 74/11 Page no. 3 of 18 issued to the defendant by plaintiff no. 1 but defendant has failed to make any response, so the present suit has been filed.
3. Defendant filed written statement contending, interalia, therein that suit is not maintainable and same is abuse of process of law and the same is filed with ulterior motive to extort money from the defendant. It is further submitted that suit is not signed and filed by duly competent and authorized person. It is further submitted that suit is bad for nonjoinder and misjoinder of parties. On merits, it has been submitted that defendant is running a transport business on commission basis and hired a truck to transport the consignment of the plaintiff no. 2 from Daurala to Lucknow and during the transit the said truck met with an accident and defendant immediately took remedial step to save the goods of the plaintiff no. 2 and reloaded the consignment to another truck bearing no. UP 78 T 8274 and delivered the consignment at the destination in safe and sound condition but on account of alleged accident, some part of the consignment was damaged, which was beyond the control of the defendant. It is further submitted that damage to consignment occurred on account of accident and said damage occurred on account of the an act of God, so defendant is not liable to pay any amount as alleged by the plaintiffs. It is denied that the damage occurred to the tune of Rs. 3,74,207/ and the said consignment was insured by the plaintiff no. 2 with plaintiff no. 1 for any CS no. 74/11 Page no. 4 of 18 damage occurred during transit to its destination. It is further submitted that defendant had booked the said consignment on owners risk and the defendant is not liable to any damage occurred on account of accident or act of God during transit. It is further submitted that defendant had made all efforts to deliver the consignment to its destination in safe and sound condition. It is further submitted that there was no agreement between the defendant and plaintiff no. 1 and defendant has not received any notice dated 05.10.2008.
Thereafter, written statement was amended. In the amended written statement, defendant has taken objection that suit is not maintainable as this court has no territorial jurisdiction, as the Courts in U.P would have the territorial jurisdiction to try the present suit because as per the agreement dated 31.05.2007 between the parties, only Courts at Meerut has jurisdiction to entertain the suit regarding dispute between the parties. It is further submitted that there is no privity of contract between the defendant and plaintiff no. 1 and suit is barred by limitation.
4. Replication has been filed on record by the plaintiff to the written statement of the defendants reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
5. From the pleading of the parties, vide order dated 29.09.2009, CS no. 74/11 Page no. 5 of 18 the following issues were framed:
1. Whether the plaintiff is entitled for a decree of Rs. 4,00,845/ along with 12 per cent interest? OPP
2. Whether the suit has been filed by a duly authorized person?OPD
3. Whether the suit is bad for nonjoinder of parties? OPD
4. Relief, if any.
Vide order dated 04.10.2010 two additional issues were framed as under: 3A. Whether this Court has no territorial jurisdiction as alleged in preliminary objection no. 6 in amended WS? OPD 3B. Whether there is no privity of contract between plaintiff no. 1 and defendant, if so to what effect? OPD
6. In order to prove the case, Sh. M.K. Suneja appeared as PW1 and tendered his evidence affidavit as Ex.P1. PW1 exhibited the invoice no. 40146296 dated 18.10.2007, valued Rs. 13,13,623/ whereby consignment of 1200 cases of country made liquor was booked as Ex. PW1/1, GR no. 1715 dated 18.10.2007 as Ex. PW1/2, survey report dated 15.11.2007 as Ex. PW1/3, monetary claim dated 13.12.2007 for a sum of Rs. 4 Lacs as Ex. PW1/4, claim bill as Ex. PW1/5, insurance policy no. 350100/21/07/4400000082 as Ex. PW1/6, damage certificate dated 15.12.2007 as Ex. PW1/7, disbursement voucher as Ex. PW1/8, Letter of CS no. 74/11 Page no. 6 of 18 Subrogation and special power of attorney issued by plaintiff no. 2 in faovur of the plaintiff no. 1 as Ex. PW/9 & Ex. PW1/10 respectively, legal notice dated 08.10.2008 as Ex. PW1/11, certified copy of power of attorney as Ex. PW1/12. PW2, Sh. Suresh Kumar is a surveyor and loss assessor. PW2 deposed that he had surveyed and assessed the loss in the consignment in question on the advice of M/s Dauralla Sugar Works, Dauralla, Distt. Meerut as well as insurance company. PW2 further testified that survey report dated 15.11.2007 are true and correct. PW3, Sh. Kunwar Javed, tender his evidence affidavit as Ex. P3 and exhibited the letter dated 22.10.2008 as Ex. PW3/1, visiting card of Mr. Devender Singh is Ex. PW3/2, copy of voter list as Ex PW3/3.
Whereas, on the other hand, the defendant has examined Sh. Devinder Singh as DW1 and tendered his evidence affidavit as Ex. D1 and relied upon the copy of consignment note as Ex.DW1/1 and copy of agreement dated 31.05.2007 as Ex. DW1/2. The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
7. I have carefully gone through the entire material on record and heard the reveal submissions of both the Ld. Counsels for the parties.
My issue wise findings are as under: ISSUE NO. 1:
8. The onus to prove this issue was on the plaintiff but before CS no. 74/11 Page no. 7 of 18 proceedings further I would like to discuss the evidence led by the plaintiffs in order to prove its case. PW1, Sh. M.K. Suneja, filed his evidence affidavit and reiterated the contents of the plaint. During cross this witness has admitted that Sh. S.C. Ahlwat has been authorized to filed the present suit in terms of power of attorney and this witness has further identified the signature of Sh. S.C. Ahlawat. This witness has further admitted that consignment was damaged on account of negligence of defendant. This witness has further testified that consignment in question was to be delivered by defendant at Lucknow and on account of negligence of defendant, the same met with an accident and loss of Rs. 4,00,845/ was suffered by plaintiff no. 2 which amount has been paid by plaintiff no. 1 to plaintiff no. 2. PW2, Sh. Suresh Kumar, assessed the original loss suffered by plaintiff no. 2 and he submitted the survey report which is already Ex. PW1/3. He has further testified that he has prepared the report after assessing the loss on the spot. PW3 Sh. Kunwar Javed has testified that Sh. Devinder Singh is residing at 249, (G.F), Vivekanandpuri, Sarai Rohilla, Delhi110007 as disclosed in Ex. PW3/2.
Defendant led evidence and Sh. Devinder Singh appeared as DW1 and submits that goods were booked with defendant in terms of consignment note Ex. DW1/1 but that consignment met with an accident. This witness has further admitted that he had issued a damage certificate CS no. 74/11 Page no. 8 of 18 dated 15.12.2007 which is Ex DW1/7. This witness has further admitted that complaint to this effect was moved to near Police Station. This witness has further admitted that survey was conducted on 22 & 23 October, 2007 and plaintiff is seeking the recovery amount involved in the present suit on the ground that the said amount has been paid by plaintiff no. 1 to plaintiff no. 2 in terms of the insurance policy taken by the plaintiff no. 2 from plaintiff no. 1 and on account of letter of subrogation as well GPA executed by plaintiff no. 2 in favour of plaintiff no. 1.
9. It has been contended by the counsel for the plaintiffs that all the facts of the plaint has been admitted by the defendant that plaintiff no. 1 had booked the consignment with defendant which was to be delivered to Lucknow so in terms of Section 9 of the Carrier Act, defendant is liable to pay the damages suffered by plaintiff no. 2 and plaintiff no. 2 has already indemnified by plaintiff no. 1 being insurer. So plaintiff no. 1 is entitled for the amount paid by plaintiff no. 1 to plaintiff no. 2. In this regard he has relied upon "South Eastern Carriers (P) Ltd. Vs. The Oriental Fire and General Insurance Co. Ltd. & anr. AIR 2004 Kerala 139, Assam Bengal Roadways Ltd. & Anr. Vs. Union of India AIR 1988 Karnataka 157, Patel Roadways Ltd. Vs. Birla Yamaha Ltd. (2000) 4 SCC 91". There is no dispute about the ratio of the law relied upon by the plaintiff.
10. On the other hand, Ld. counsel for the defendant has contended CS no. 74/11 Page no. 9 of 18 that in terms of agreement between the parties dated 31.05.2007 wherein it was provided that transit insurance shall be arranged by plaintiff no. 2 and defendant will not be responsible for any loss to the consignment and, in case, of any loss defendant will immediately lodged the FIR for the same and after completion of the formalities the defendant was supposed to submit the document immediately and it was further stipulated that at first instance loss suffered by the plaintiff no. 2 was to be recovered from the defendant and which would be refunded to the defendant, after full satisfaction of claim of plaintiff no. 2 by plaintiff no. 1. Before proceeding further I would like to produce Section 9 of the Act which reads as under: "Plaintiffs, in suits for loss, damage or nondelivery, not required to prove negligence or criminal act In any suit, brought against a common carrier for the loss, damage or nondelivery 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."
The bare perusal of the above said section made its crystal clear that plaintiff is not obligated to prove that there was negligence or criminal act as detailed in section 8 of the Act , the onus to prove that there was no negligence on the part of the defendant is on the shoulder of the defendant CS no. 74/11 Page no. 10 of 18 and defendant could not wriggle out of this obligation. Therefore, it relieves the plaintiff from proving those facts. The conjoint reading of Section 8 and 9 of Act provides that burden of showing the loss or damage that cause to property, was owing to the negligence or criminal act of carrier, his servant or agent will be entirely on carrier. Since, the carrier's liability as declared under Section 8, it can escape only by showing that the liability is not attracted due to the absence of the vitiating elements stated in the Act. Therefore, liability of common carrier is absolute until and unless he can prove that loss or damage is caused due to other causes either under Section 4 and 6 of the Act. Therefore, in view of the Section 9 of Carrier Act the negligence on the part of carrier need not be established by plaintiff/complainant/owner of the goods. This is so not with standing any special contract between the parties and burden to prove that there was no negligence on the part of carrier is on carrier to plead and prove. It is admitted case of parties that goods were consigned to defendant for delivery at Lucknow and loss has been suffered by plaintiff no. 2 on account of negligence of defendant. Therefore, liability of the defendant is absolute under Section 9 of the Act. In the present case, defendant has failed to prove that damage/loss to the consignment has been caused on account of an act of god so as to absolve him from any liability as a common carrier. So this issue is decided in favour of the plaintiff and CS no. 74/11 Page no. 11 of 18 against the defendant.
ISSUE NO. 2:
11. The onus to prove this issue was on the defendant. Plaintiff has placed on record certified copy of power of attorney executed by plaintiff no.1 in favour of Sh. S.C. Ahlawat (Ex. PW1/12). Signature of Sh. S.C. Ahlawat has been duly identified by PW1. Letter of subrogation as well as GPA executed by plaintiff no. 2 in favour of plaintiff no. 1 is already on record in order to prove that plaintiff no. 2 had subrogated/assigned all his rights in favour of plaintiff no. 1 and plaintiff no. 2 has further authorised plaintiff no. 1 to institute/file the suit in respect of insurance claim in terms of subrogation letter and GPA. But defendant has led no evidence to the contrary, so this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3:
12. The onus to prove this issue was on the defendant but no evidence has been led by the defendant to prove that suit is bad for non joinder of parties. So in the absence of any evidence, this issue is decided in favour of the plaintiffs and against the defendant.
ISSUE NO. 3A:
13. The onus to prove this issue was on the defendant. To prove that this court has territorial jurisdiction to entertain this suit. Plaintiff has led CS no. 74/11 Page no. 12 of 18 evidence that defendant is residing in Delhi and damage certificate Ex. PW1/7 wherein Head office of the defendant is detailed as AG384, IInd Floor, Sanjay Gandhi Transport Nagar, Delhi110042, has been issued by the defendant from its official address in Delhi and in the evidence affidavit address of the defendant is depicted that of Delhi. Plaintiff has proved that defendant is residing as well as having its head office in Delhi.
Ld. counsel for the plaintiffs has contended that defendant is actually and voluntarily residing as well as carrying business and personally working for gain within the territorial jurisdiction of this court, so as per Section 20 of CPC the suit shall be instituted in the court with local limits of jurisdiction the defendant is actually and voluntarily resides or carrying on business or personally works for gain, therefore, as the defendant is residing within Delhi and carrying on the business within the territorial jurisdiction of this court, as such this court has the jurisdiction to entertain the present suit.
On the other hand, Ld. counsel for the defendant has contended that Ex.DW1/1 the contract entered into between the plaintiff no. 1 and defendant there is a clause that any dispute between the parties was to be referred to the arbitrator and in case, any matter referred to the court of law only Meerut court will have the jurisdiction, so this court has no territorial jurisdiction to entertain the present suit.
CS no. 74/11 Page no. 13 of 18 The contention raised by the counsel for the defendant appears to be attractive but same is fallacious as Section 20 of CPC mandates that suit shall be instituted where defendant resides or work personally for gain. The document placed on record by the plaintiff i.e. damage certificate prove that defendant is working within the territorial jurisdiction of this court and residing in Delhi at Sarai Rohilla. The contract of insurance was executed between plaintiff no. 1 and plaintiff no. 2 in Delhi. So from the above discussion, I am of the opinion that as defendant is residing in Delhi and carrying on the business in the territorial jurisdiction of this Court and a part of cause of action has accrued in Delhi. So this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3B:
14. The onus to prove this issue was on the defendant that there is no privity of contract between the plaintiff no. 1 and defendant. But plaintiff no. 1 has proved on record that plaintiff no. 2 had consigned the goods to defendant which were got insured by plaintiff no. 2 from plaintiff no. 1 and plaintiff no. 2 suffered losses for which plaintiff no. 2 has already been indemnified by plaintiff no. 1 and plaintiff no. 2, in turn, had assigned and subrogated all his rights in favour of plaintiff no. 1. Ld. counsel for defendant has contended that defendant was no a party to any insurance policy as well as letter of subrogation. As defendant was no a party to CS no. 74/11 Page no. 14 of 18 letter of subrogation executed by plaintiff no. 2 in favour of plaintiff no. 1, in addition to it, plaintiff no. 1 was not a party to the agreement executed between the plaintiff no. 2 and defendant in terms of which goods were consigned. So there is no privity of contract between plaintiff no. 1 and defendant.
15. But it is settled law that subrogation does not confer any independent right on underwriters to maintain in their own name and without reference to the persons assured an action for damage to the thing insured. The right of the assured is not one of those rights which are incident to the property insured. It is also settled law that U/s 6 of the Transfer Property Act mere to sue can not been transferred. A bare right of action might be claims to damages for breach of contract or claim to damages for tort. An assignment of a mere right of litigation is bad but assignment of property is valid even although that property may be incapable of being recovered without litigation. The reason behind the rule is that a bare right of action for damages is not assignable because the law will not recognized any transaction which may savour of maintenance of champerty. It is only when there some interest in the subject matter that a transaction can be saved from the imputation of maintenance. That interest must exist apart from the assignment and to that extent must be independent of it. The plaintiff no. 1 is not seeking recovery on account of CS no. 74/11 Page no. 15 of 18 any privity arising out of agreement between plaintiff no. 2 and defendant. The right of insurer against the person responsible for loss/damages does not rest upon any right arising out of contract or privity between plaintiff no 2 and defendant. It arise out of the nature of contract of insurance policy as a contract of indemnity and is derived from assured alone and can not be enforced by insurer in his rights only and insurer is entitled to recoupment only for loss for which he has paid and to the extent of his payment in terms of subrogation i.e. payment made to the assurer by the insurer under the policy.
16. It is settled preposition of law that subrogation is concerned solely with mutual rights and liabilities of parties to the contract of insurance; it confers no rights and imposes no liabilities upon third parties who are strangers to that contract and; the insurer who has paid a loss gets no direct rights or remedies against anyone other than the assured nor can sue such parties in his own name. Subrogation will only entitled the insurer to sue in the name of the assurer and it being an obligation of the assured to lend his name and assistance to sue an action.
17. From the above discussion, I am of the opinion that plaintiff no. 1 is entitled to recover the amount from the defendant on the principle of subrogation as discussed above, so this issue is decided in favour of the plaintiff no. 1 and against the defendant.
CS no. 74/11 Page no. 16 of 18
RELIEF:
18. From the above discussion and in view of my issue wise findings, present suit is hereby decreed in favour of the plaintiff no.1 and against the defendant. Plaintiff no.1 is held entitled for an amount of Rs. 4,00,845/ along with interest @ 9% p.a. till its realization with cost. Reader is directed to prepare decree sheet accordingly. File be consigned to record room.
Announced in the Open Court (VIJAY KUMAR DAHIYA)
On this 29.11.2011. ADJII : ROHINI : DELHI
CS no. 74/11 Page no. 17 of 18
CS No. 74/11
29.11.2011
Present: None.
Matter is listed for orders/clarification.
Vide separate judgment, present suit is decreed in favour of the plaintiff no. 1 and against the defendant. Reader is directed to prepare decree sheet accordingly. File be consigned to record room.
(VIJAY KUMAR DAHIYA) ADJII(NW):ROHINI:DELHI.
29.11.2011
CS no. 74/11 Page no. 18 of 18