The New India Assurance Co. Ltd. ... vs The Delhi Development Authority ...
1991 Latest Caselaw 10 Del

ORDER

1. This is plaintiffs' suit for recovery of Rs. 2,91,500/- for less of truck parked at the parking lot of the defendants and was stolen from there. The plaintiffs number two and the defendants three. First plaintiff carries on the business of general insurance and the truck bearing Engine Number 692 D 22854785 and Chassis Number 364046844126 was insured with it by plaintiff No. 2 who was owner of the truck. It was Tata make truck of 1987 model. First defendant is constituted under the Delhi Development Act, 1957 and has various functions to perform under the Act. It was maintaining a truck parking centre at Majm-ka-tilla, Delhi, and the name given to the parking centre was Idle Truck Parking Centre. Second defendant is Union of India in the Ministry of Urban Development through its Secretary, and the third defendant is the Traffic Manager of the aforesaid truck parking centre. Second defendant has been imp leaded on the ground, that it owns, controls and looks after and is responsible for all the working and affairs of the first defendant. This does not appear to me to be correct as the first defendant under the aforesaid Act is a body corporate by the name The Delhi Development Authority (for short 'D.D.A.'). Having perpetual succession and a common seal with power to acquire, hold and dispose of property both movable and immovable and to contract and shall by the said name sue and be sued. (Sec. 3 of the Act). Second defendant, therefore, is neither a necessary nor a proper party in these proceedings. The suit against second defendant is to be dismissed. The defendants would, therefore, mean and include the first and the third defendants.

2. In spite of various opportunities granted to the defendants, they failed to file their written statement and consequently their defense was struck off. Ex parte evidence of the plaintiffs was recorded. They produced three witnesses. PW-I Ishwar Ashani has testified to the institution of the suit by a person duly authorised on behalf of the first plaintiff. Second witness is Satish Arora. He is the son of plaintiff No. 2 who is his Mother. His father is Ami Chand. He has testified to the ownership of the truck, its insurance and parking and the truck having been stolen and the second plaintiff getting claim of Rupees 2,91,500/ - from the first plaintiff, the insurer. Third witness is H.K.L. Saini who was at the relevant time working as Branch Manager of the first plaintiff at Agra and has testified to the approval of claim or loss of the truck, serving of notice on the defendants in turn claiming Rs. 2,91,500/ - on the allegation that the loss of the truck was occasioned due to the negligence of the defendants.

3. Then the defendants moved another application under Order 18, Rule 17-A of the Code of Civil Procedure, which was, again dismissed in default.

4. Arguments were, however, addressed by counsel for the parties on the basis of the record. Facts are, therefore, not in dispute.

5. The truck was brought to the Idle Truck Parking Centre on 8-6-1987 and parked there. Receipt (Ext. PW2/5) was issued by the defendants. It was issued in the name of Ami Chand.A sum of Rs. 3/was received by the defendants on account of truck parking fee for a period of 24 hours. On the night of 8th and 9th June, 1987 the truck was stolen from the parking site and a first information report was lodged with the police at 3.30 p.m. on 9-6-1987. Report was lodged by Ram Singhar Yadav, driver of the truck. After investigation the police filed the case as untraced. Plaintiff No. 2 thereafter lodged a claim with the first plaintiff who was insurer of the truck, and after necessary formalities the first plaintiff agreed to the claim of the second plaintiff for loss of the truck in the sum of Rs. 2,91,500/-. After being subrogated to the rights of the second plaintiff for claiming compensation for loss of the truck, the present suit was filed. But before that second plaintiff served a notice (Ext. PW 2 / 8) on the defendants intimating then that the truck was parked at their Parking Center at about 4. 10 p.m. on 8-6-1987 and due to carelessness on the part of the security staff of the defendants the truck was got stolen about which a written information was given to the defendants on 9-6-1987 along with a copy of the police report lodged by the second plaintiff and also a copy of the receipt for parking. The second plaintiff demanded a sum of Rs. 3,00,0001 - on account of loss of the truck. Then, the first plaintiff also issued a notice on 12-2-1988 to the defendants (Ext. PW 1/4) claiming upon them to make payment of Rs. 2,91,500/ - with interest at the rate of 18% per annum. The notice was issued both u/ S. 80 of the Code of Civil Procedure and S. 53-B(l) of the Delhi Development Act, 1957. The defendants ' however, defaulted in replying to any of these notices.

6. Mr. Paul for the plaintiffs contended that possession of the truck was handed over to the defendants and when parked against receipt the custody, control and possession of the truck was with the defendants. The defendants were responsible for the safety of the truck and were bound to deliver the same to the plaintiffs in the same condition in which it was parked at the parking lot under the control of the defendants. The truck, however, mischievously, unauthorisedly and illegally removed from the parking lot on account of the negligence of the staff of the defendants at the site when the receipt (Ext. PW2/5) still remained with the plaintiffs. The plaintiffs, therefore, say they are entitled to the amount of Rs. 2,91,500/ - being the cost of the truck. To all these facts there is no rebuttal by the defendants except it was argued on their behalf that possession of the truck always remained with the second plaintiff inasmuch as the driver of the truck was sleeping inside the truck and it was only when he had left at about 3 a.m. on the night of 8th and 9th June 1987 for ostensible purpose of drinking water that in the meanwhile the truck was stolen and further that there was no contract between the parties under which the defendants were bound for the safety of the truck. The first part of the argument has been raised on the basis of the first information report (Ext. PW 2/6) which had been lodged by the driver of the truck. There is nothing on the record to show that the Idle Truck Parking Center was only a open space of land where license was being granted to the truck owners to park their trucks on payment of certain fee without their being any obligation on the part of the defendants to look after the safety of the vehicles parked therein,

7. Plaintiffs submit that in the facts of the case there was bailment and the defendants were bailee of the truck and as a bailee the defendants were bound to take as much care and safety of the truck as a man of ordinary prudence would in the given circumstances, and it was the duty of the defendants as bailee to return or deliver the truck to the plaintiffs before the expiry of the period of 24 hours as per the receipt issued to them by the defendants and since the truck was not so returned or delivered at the proper time, the defendants were responsible for any loss occasioned to the plaintiffs. U/ S. 148 of the Indian Contract Act, 1872, a bailment is defined as the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the "bailor". The person to whom they are delivered is called the "bailee". U/ S. 149, the delivery to the bailee may be made by doing anything which was the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold the on his behalf. S. 151 prescribes that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Then, u/ S. 152, the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in S. 151. U/ S. 160, it is the duty of the bailee to return, or deliver according to the bailor's directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished; and u/S. 151(161) if, by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor or any loss, destruction or deterioration of the goods from that time. Under English law also a bailment is a delivery of goods on condition that the recipient shall ultimately restore them to the bailor; they may, thus, be hired or lent or pledged or deposited for safe custody. If I may apply the principle of law as laid above, it is a clear case of bailment and the defendants as bailee having failed to show having exercised reasonable care as man of ordinary prudence are liable for the loss of the truck. I must say their negligence is further compounded by the fact that they failed to reply to the notices sent by the plaintiffs. There is nothing on the record to show if any enquiry was set a foot by the defendants as to how the loss of the truck occurred after they were duly apprised of the loss from the Parking Center. No doubt, serving a notice before the institution of the suit is the requirement of law and it is not a mere formality. in Raghunath Das v. Union of India, , the Supreme Court observed that the object of notice contemplated by S. 80 of the Code was to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them last they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The least what was required in the present case was for the defendants to acknowledge the notice and inform the plaintiffs of the circumstances leading to the loss of the truck from the Parking Centre or even disputing their liability. Public authorities must take statutory notice issued to them in all seriousness and the purpose is not to sit over it and force the citizens to the vagaries of litigation. They are expected to let know plaintiff their stand within the statutory period or in any case before he embarks upon the litigation. In certain caseds court may be obliged to draw adverse presumption for not acknowledging the notice or telling the plaintiff of its stand and in the absence of that a stand taken during the course of trial may be considered as an afterthought.

8. In the State of Gujarat v. Memon Mahomed Haji Hasam, AIR 1967 SC 1885, certain vehicles were seized by the custom authorities and during the pendency of the appeal against that order, these were sold being unclaimed under an order of a magistrate u/ S. 523 of the Code of Criminal Procedure, 1898. The appeal was allowed but the vehicles had already been sold. The Supreme Court held that the State Government was in a position of a bailed and it was its duty to return the vehicles. An argument was raised by the State of Gujarat that there was no bailment in that case nor could such bailment be inferred as S. 140 of the Contract Act, 1872 required that bailment could arise only under a contract between the parties. The court observed that this contention was not sustainable and that bailment is dealt with by the Contract Act only in cases where it arose from a contract but it was not correct to say that there could not be a bailment without an enforceable contract. The Supreme Court observed that there was a legal obligation to preserve the property intact and also the obligation to take reasonable care of it so as to enable the Government to return it in the same condition in which it was seized and the possession of the State Government until the order became final would be that of a bailee.

9. In N. R. Srinivasa Iyer v. New India Assurance Co. Ltd., , plaintiff's car was insured with the New India Assurance Company Ltd. The car suffered damage in an accident and under the policy of insurance the insurance company took the car to a repairing workshop. While the car was at the workshop, a fire occurred there in which the car of the plaintiff was also destroyed. The court was of the view that the insurance company having taken possession of the car was a bailee and the repairer was a sub-bailee. It held that the burden was on the bailee and the sub-bailee to establish to the satisfaction of the court as to what degree of care was taken in respect of the damaged car, and the same having been not discharged the learned Judge was justified in accepting the evidence of the plaintiff and in recording the finding that bailee and the sub-bailee had not taker, such care of the car as was expected of a prudent man in respect of his own goods of the same quality and value. The court held that the bailee was liable for the loss suffered by the plaintiff, the bailor. The plaintiff had led evidence in that case that the car had been kept in a careless manner in the workshop where inflammable material was kept.

10. Essence of bailment is possession. The possession of the truck was handed over to the defendants when the truck was parked in the Parking Centre of the defendants. The defendants had issued a receipt and charged Rs.3/- for the safe keeping of the vehicle for a period of 24 hours. Immediately at that time a contract of bailment came into being, The defendants as bailee having failed to deliver the vehicle back to the second plaintiff within the contracted period and not having shown to have exercised any prudent care for the safety of the truck, are liable for its loss. It is immaterial if the driver of the truck was also sleeping in the vehicle. The vehicle could not have been taken out of the Parking Centre without surrendering the receipt. This is particularly so when the plaintiffs have submitted that the truck was under the charge, custody, a control and possession of the defendants. I would have certainly agreed with Mr. Amit Chadha, learned counsel or the defendants, if there was anything on the record to show that the defendants were merely collecting a fee for parking and were not to care or watch the vehicles parked generally in the Idle Parking Centre. It is not the case of either of the parties that the Parking Centre or the parking there were regulated under any provisions of law like the Delhi Police Act or the Motor Vehicles Act, 1988 (e.g. S. 117). 'Park' in its ordinary meaning means to put or place a car or other vehicle for a time and 'parking' is the leaving of a car or other vehicle in a particular place for a time and' parking place' is a place in which vehicles may be left. A person parks his car in a car park or parking place. I find, in the present case, the vehicle was parked in the Truck Parking Centre against a receipt and it was the duty of the defendants to guard the truck for 24 hours and to deliver the same back to the plaintiff No. 2 within this period. It was not that the defendants had merely granted a license to the plaintiff to park the truck at any open space on a certain fee without there being any liability on the part of the defendants to look after the truck for its safe keeping.

11. I find the claim of the plaintiffs in the suit to be correct. The suit is, therefore, decreed for Rs. 2,91,500/- with costs. Plaintiffs will also be entitled to interest on this amount at the rate of 1870 per annum from the date of institution of the suit till payment.

12. Order accordingly.