The Bestways Transport ... vs New India Assurance Co. Ltd.
2006 Latest Caselaw 1423 Del

JUDGMENT

S.L. Bhayana, J.

1. This is an appeal arising out of the order of the learned Additional District and Sessions Judge, Delhi dated 31.07.1992 whereby the learned Additional District Judge has decreed the suit of the plaintiff M/s. New India Assurance Company Limited against the appellant for a sum of Rs. 34,260/- with pendente lite and future interest @ 6% per annum against defendant Nos. 1 and 2.

2. The brief facts of the case are that the plaintiff New India Assurance Company Limited filed a suit for recovery of Rs. 34,260/- against defendant No. 1 a common carrier M/s. Bestways Transport Corporation. Defendant No. 2, Kailash Chand Malhotra is the proprietor of defendant No. 1. Defendant No. 3, 'The West Coast Rubbers' is the consignor of the goods while defendant No. 4 is the consignee of the goods. The defendant No. 3 had sent a consignment comprising of 625 numbers SB7 container for batteries which was transported by lorry No. TWS 3400 by Friends Transport from Ettumanoore up to Nagpur. This consignment was further transported from Nagpur to Delhi by lorry No. DHG 581 by defendant No. 1 and 2. Truck No. DHG 581 belonging to defendant No. 1 and 2 was hired for carriage of the goods from Nagpur to Delhi but defendant No. 1 and 2 did not issue any receipt for the same. That on way from Nagpur to Delhi, the truck met with an accident and the consignment was completely destroyed. A notice dated 13.06.1975 was served on defendant No. 1 by defendant No. 3. Defendant No. 1 acknowledged the receipt of the notice vide letter dated 22.06.1975. In the said letter, defendant No. 1 admitted the loss but denied the liability taking a plea that the consignment was being carried at the owners' risk.

3. This consignment was insured with the plaintiff i.e. M/s. New India Assurance Company under open policy against all road risks etc. As defendant Nos. 1 and 2 failed to pay any compensation to the owner, the plaintiff insurance company settled the claim of defendant No. 3 for a sum of Rs. 34,260/- being the value of the goods. Defendant No. 3, consignor by O.T.I. and by a letter of subrogation assigned and transferred all their rights in favor of the plaintiff. The plaintiff has imp leaded defendant No. 3 and 4 as interested and necessary parties but they are proforma defendants only. It is further the case of the plaintiff that the consignment was completely damaged on account of carelessness, negligence, misconduct and mishandling on the part of defendant Nos. 1 and 2 their agents and employees while transporting the goods from Nagpur to Delhi and resulting into the loss and damage to the amount of Rs. 37,080/-. Defendant No. 3, is a consignor and the owner for valuable consideration of the suit consignment. The plaintiff had to pay a sum of Rs. 34,260/- to defendant No. 3 against the said claim under the contract of insurance. The plaintiff is, therefore, entitled to recovery of a sum of Rs. 34,260/- with interest @ 12% per annum as well as cost of the suit from defendant No. 1 and 2 towards damages and compensation. In the written statement filed by defendant No. 1 and 2, they took the preliminary objection that there is no privity of contract between the plaintiff and defendant No. 1 and 2. They have taken a plea that they have no privity of contract with defendant No. 3 and 4 and that this Court has no jurisdiction to entertain the suit at Delhi as no part of cause of action arose at Delhi. On merits defendant No. 1 and 2 stated that the consignment was not booked with defendant Nos. 1 and 2 nor their truck was hired by defendant No. 3 and 4 for transportation of the goods from Nagpur to Delhi. They also took a plea that there was no booking office at Nagpur and the consignment was never entrusted to them. They also took a plea that the suit is liable to be dismissed as no notice under Section 10 of the Carriers Act was served upon defendant Nos. 1 and 2.

4. We have heard learned Counsel for the appellant, learned Counsel for the respondent and have perused the record carefully. The counsel for the appellant submitted that there is no privity of contract between the appellant and New India Assurance Company, respondent. The goods in question were entrusted to the appellant by the transporter who had booked the goods for transporting the same up to Nagpur. Truck No. DHG 581 was on its way from Nagpur to Delhi when the mishap occurred resulting into the damage to the truck. There was no negligence that has been proved on the part of the defendant No. 1 and 2 as this accident took place due to negligence of some other vehicle. No negligence on the part of defendant No. 1 and 2 has been proved by the plaintiff so they are not liable to pay any damages to the Insurance Company. They have further prayed that the appeal be accepted and the order and decree passed by the learned trial court be set aside.

5. Counsel for the appellant further submitted that the appellant was transporting goods from Nagpur to Delhi at the owner's risk and the goods were destroyed on account of an accident which was not in the control of the driver of the appellant and therefore they are not liable to pay any damages to the respondent, Insurance Company. On the other hand, learned Counsel for the respondent, New India Assurance Company submitted that as per Section 9 of the Carriers Act, there is no need to prove the negligence on the part of the appellant in this accident. It is sufficient to prove that the truck of the appellant was carrying the goods from Nagpur to Delhi when it met with an accident on the way and the entire consignment of goods was destroyed in the said accident. To prove the negligence on the part of the appellant is not necessary. Section 9 of the Carriers Act reads as under:

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 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.

6. From the language of Section 9 of the Carriers Act, it is clear that it is not necessary for the plaintiff to prove that the loss, damage or non delivery of the goods was owing to the negligence or careless act of the carrier, his servants or agents.

7. This Court while deciding the matter in Rolta India v. Elbee Services Limited reported in 1992 (2001) DLT 232 observed as under:

The main gravamen of the contention of the learned Counsel for the plaintiff is that Section 9 of the Carriers Act postulates that the liability of a carrier is that of an insurer and that in case of loss or damage to goods to the carrier, the plaintiff need not prove negligence. Section 9 reads as under:

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 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.

8. Keeping in view the observations made by this Court in the aforesaid case, we are of the considered opinion that it is not necessary for the plaintiff to prove negligence on the part of the defendants and the plea of the defendant common carrier that they have not proved the negligence is without any basis and the same is rejected.

9. Counsel for the plaintiff further submitted that defendant Nos. 1 and 2 have admitted that they have received notice under Section 10 of Carriers Act from the agency of the defendant No. 3 regarding recovery of the claim towards damages and this notice has been duly accepted by the appellant to the said agency and they have also given reply to defendant No. 3. The reply to the notice sent by the appellants to the consignor defendant No. 3 has been exhibited as PW3/4. We have gone through the letter Ex. PW3/4 in which the appellants have admitted having received letter No. NIL dated 03.02.1976 for the recovery of claim of Rs. 34,258.80 paise. The said letter reads as under:

The Claims Recovery Bureau,

B-8, Nizamuddin (East),

New Delhi.

Dear Sir,

Reference to your letter No. nil dated 3/2/76 for the recovery of the claim for Rs. 34,258/80, we have already in. Sh. Mahindra K. Thakar that our Truck No. DHG 581 is also insured with the same Co for whis referers. We got claim from M/s. New India Assurance Co for Rs. 3918/- the loss of our truck under the claim No. DMTC/5170/65/3068 on 10/10/75.

This accident was by chance and was out of our control. There was not our intention melafied, so therefore you are requested to take up this matter with the Co who had covered the risks. For the natural cause we are not be held responsible for the claim.

Please do the needful and oblige.

Thanking you,

Yours faithfully,

Bestways Transport Corporation

Prop.

CC to Sh. Mahendra K. Thakar

10. In the above said letter, the defendant No. 1 and 2 have admitted that their truck No. DHG 581 is also insured with the same company under reference. They have also stated in the said letter that they have got a claim from New India Assurance Company for a sum of Rs. 3918/- on account of the loss caused to their truck in the said accident. They have further stated that this accident was by chance and it was beyond their control. There was no malafide intention on their part. They also requested them to take up the matter with the insurance company who had covered the risk and that they are not liable for the said claim. After going through the reply sent to the Claim and Recovery Bureau, B-8, Nizamuddin (East) New Delhi, the appellants have admitted that the goods were being carried by the truck No. DHG 581. They have also admitted the accident of this truck and they also admitted having taken claim against the loss caused to their truck in the accident from New India Assurance Company. They have also admitted that the accident was by chance and it was beyond their control. So it has become amply clear that the accident of truck No. DHG 581 has been admitted by the appellants in their reply to the notice. Once they admit the accident and the loss of goods then they are liable to pay for the loss and damage caused to the said consignment to the Insurance Company. Our attention is also drawn to the letter Ex.PX written by the appellants to West Coast Rubber who are the consignor, defendant No. 3. The said letter reads as under:

M/s. West Coast Rubbers,

Industrial Estate,

Ettuamanoor.

Ref.      reference to your letter No WCR/513/75 Dt 13-6-75

 

Dear Sirs,
 

as you have claimed Rs. 41,000/- only for the loss of your material by accident. Said material was loaded in our truck No DHG 581 from Nagpur to Delhi. We carry the material at owners' risk and the accident is never by intention. In fact it occurs according to the circumstances and situation on the road and it is all in the hands of nature.

Under these circumstances we don't find ourselves guilty and with intention malafied. You are requested to lodge the claim on the insurer.

This is without prejudice and subject to the owner's risk.

Please do the needful and oblidge.

Thanking you,

Yours' faithfully,

for Bestways Transport Corpn.

Prop.

11. This is also a reply to the letter of the consignor dated 13.06.1975 sent by the appellants on 20.06.1975. In this reply also they have admitted that the said material was loaded in their truck No. DHG 581 from Nagpur to Delhi. They carried the material at owner's risk and the accident is never by intention. In fact, the accident occurred due to the circumstances and situation on the road and it was all in the hands of nature. They have also advised the defendant No. 3 to lodge a complaint with the insurance company. So, from the reply of the appellant written to defendant No. 3 Ex.PX, it is further proved that they are the persons who had loaded the consignment in their truck No. DHG 581 and they also admitted the accident on the way as a result of which the goods were damaged. We have gone through the invoice of goods dispatched from Ettumanoore by the consignor on 03.05.1975. In this invoice the description of the goods have been given and the value of the goods have been given to be Rs. 32,450.80 paise which have been sent to the consignee from Ettumanoore to Delhi.

12. We have heard learned Counsel for the appellants, learned Counsel for the respondents and have perused the record carefully. It is admitted case of both the parties that the consignor, defendant No. 3 had sent a consignment from Ettumanoore to the consignee at Delhi. This consignment was being transported in truck No. DHG 581 belonging to the appellant. It is admitted case of both the parties that the said truck met with an accident on the way from Nagpur to Delhi and the entire consignment was destroyed and damaged. It is also admitted case of both the parties that the New India Assurance Company had insured these goods. It is also admitted case of both the parties that the New India Assurance Company settled this claim with the consignor for a sum of Rs. 34,260/- being the value of the goods. Under Section 9 of the Carriers Act, it is not obligatory on the part of the plaintiff to prove the negligence on the part of the common carrier at the time of accident. It is also admitted case of both the parties that notice under Section 10 of the Carriers Act was given to the appellant by the agency of the consignor which was duly replied by the appellants. It is a settled proposition of law that if the consignment is destroyed or lost and did not reach its destination and if the insurance company has paid the insured amount to the insurer, the transport company who has transported the goods to the destination are responsible for payment of the damages to the insurance company. In view of the discussions made above, we are of the considered view that the appellants are liable to pay for the damages caused to the consignment which was being transported by them from Nagpur to Delhi and which was destroyed on the way. This appeal has no merit and is, therefore, dismissed. The parties are left to bear their own costs. Trial court record be sent back. File be consigned to record room.