National Insurance Co. Ltd. And ... vs Cto Carriers Ltd.
2006 Latest Caselaw 518 Del

JUDGMENT

Anil Kumar, J.

1. This judgment shall dispose of plaintiffs' suit for recovery of Rs. 49,59,830/- from the defendant who had carried the goods of the plaintiff No. 2 which goods had suffered damages.

2. The plaintiff contended that plaintiff No. 1 is a nationalised insurance company and Shri Vinod Babbar is the Sr. Divisional Manager, who is conversant with the facts and circumstances of the case and is able to depose the facts of the case and is also competent to sign, verify and institute the suit on behalf of plaintiff No. 1. Plaintiff No. 2 is also a company duly incorporated under the Companies Act, 1956 and plaintiff No. 2 has authorized plaintiff No. 1 by a letter of subrogation dated 16th July, 2003 and power of attorney dated 18th July, 2005 to sign and verify the suit on behalf of plaintiff No. 2.

3. The defendant is a carrier carrying on business at Delhi and a consignment of 3888 color display tubes packed in 108 pallets and loaded into 3 X 40' ISO containers were dispatched from M/s. Samsung SDI, Malaysia for final delivery to plaintiff No. 2 at NOIDA.

4. It was asserted that on 23rd July, 2002, container No. APLU 904057- 0(40') containing color display tubes 17 was booked with defendant vide goods receipt No. MBI-024292 dated 23rd July, 2002 for delivery to plaintiff No. 2 at NOIDA. The said container was loaded on a trailer No. HR 55 5264 for journey to NOIDA. On the way the trailer met with an accident and, therefore, the container was trans shiped by the defendant from the site of accident into another trailer No. HR 55 6641. On reaching the factory of plaintiff No. 2 at NOIDA on 16th August, 2002, it was found that the pallets were heavily damaged and consequently the insurance company, plaintiff No. 1, was intimated who appointed M/s. Ericson and Richards (Delhi), surveyors who conducted the survey and submitted a report dated 11th February, 2003 where the loss was assessed to be Rs. 39,99,863/-. The plaintiff No. 2 lodged the claim with the defendant carrier vide letter dated 17th December, 2002 under Section 10 of the Carriers Act, 1865 claiming an amount of Rs. 40,60,263/- in respect of loss/damage caused to the consignment due to negligence of defendant. The defendant admitted the factum of loss/damage to the consignment when the open delivery was taken by the plaintiff No. 2 and an open-delivery certificate dated 20th December, 2002 was issued by the defendant. However, despite the issuance of open-delivery certificate, the defendant had not settled the claims of plaintiff No. 2.

5. Since the consignment of defendant No. 2 was insured with plaintiff No. 1 under open policy No. 351700/4400351/01 dated 10th September, 2001 for the period 19th September, 2001 to 9th February, 2002, therefore, the plaintiff No. 2 lodged the claim towards loss suffered by him on account of damage caused to the said consignment.

6. As the defendant carrier had failed to settled the claim of plaintiff No. 2, the claim of the plaintiff No. 2 against defendant No. 1 was settled by plaintiff No. 1 for a sum of Rs. 39,99,863/- which amount was given to plaintiff No. 2 by plaintiff No. 1 vide cheque No. 847042 dated 16th July, 2003 drawn on Bank of India in favor of plaintiff No. 2 which amount was accepted in full and final settlement and in consideration of the settlement of the claim. On settlement of claim of the plaintiff No. 2 by the plaintiff No. 1, the plaintiff No. 2 executed letter of subrogation in favor of plaintiff No. 1 whereby plaintiff No. 2 assigned/transferred all his actionable rights, title and interest in the said goods and proceeds thereof and all the right and remedies against the carrier in favor of plaintiff No. 1. The plaintiff No. 2 also executed a special power of attorney dated 18th July, 2005 in favor of plaintiff No. 1 authorizing him to file the suit against the defendant for recovery of claim amount paid by plaintiff No. 1 to plaintiff No. 2. The plaintiff also claimed interest @ 12% per annum on the ground that since the defendant has failed to settle the claim, the said amount which has been paid by the plaintiff No. 1 to plaintiff No. 2, the defendant is liable to pay interest with effect from July 16, 2003, the date on which the amount was paid by plaintiff No. 1 to plaintiff No. 2 and thus plaintiffs filed the suit for recovery of Rs. 49,59,833/-. The plaintiffs also claimed pendente lite and future interest @ 12% per annum.

7. The summons of the suit were served on defendant, however, since no one appeared on behalf of the defendant, he was proceeded ex parte by order dated 25th November, 2005. After the defendant was proceeded ex-parte, the plaintiff filed the evidence by way of an affidavit of Mr. Vinod Babbar, Sr. Divisional Manager, National Insurance Company Limited.

8. The deponent of the plaintiffs deposed that plaintiff No. 1 is a nationalized insurance company and he is the Sr. Divisional Manager. He deposed that he is conversant with the facts and circumstances and competent to sign, verify and institute the suit on behalf of plaintiff No. 1 company.

9. The witness of the plaintiffs also deposed that a letter of subrogation dated 16th July, 2003 and power of attorney dated 18th July, 2005 were executed by the plaintiff No. 2 in favor of plaintiff No. 1 and consequently the suit has also been signed, verified and instituted by the witness on behalf of plaintiff No. 2.

10. The witness proved the commercial invoice dated 24th July, 2002 as Exhibit PW/1 and packing list for commercial invoice as Exhibit No. PW1/2. The commercial invoice No. 6028199 dated 24th June, 2002 and its packing list of the same dated were also proved and exhibited as Exhibit PW1/3 and PW1/4. Similarly, commercial invoice No. 6028200 dated 24th June, 2002 and packing list dated 24th Jun3, 2002 were proved and exhibited as Exhibit PW1/5 and PW1/6. Bill of Lading No. ALM01HPKGNSH-020012 was proved and exhibited as Exhibit PW1/7. A specific deposition was made that the container No. APLU 904057-0(40') containing color display tubes 17 were booked with the defendant carrier by G.R. No. 024292 dated 23rd July, 2002 and the goods receipt was proved and exhibited as Exhibit PW1/8. The container was loaded on the trailer bearing No. HR 55 5264 which met with an accident and a Rojnamcha report dated 27th July, 2005 was also proved and exhibited as Exhibit PW1/9.

11. It was deposed that when the consignment reached the factory premises of plaintiff No. 2, the pallets inside the container were heavily damaged and, therefore, an open-delivery was taken by plaintiff No. 2 and M/s. Ericson and Richards (Delhi) were appointed as surveyors to asses the loss/damage who gave detailed report dated 11th February, 2003 which was exhibited as PW1/10. On the basis of loss/damage caused to the goods of the plaintiff, claim was lodged by the plaintiff No. 2 with defendant by letter dated 17th December, 2002 which was exhibited as PW1/11 and its postal receipt was exhibited as Exhibit PW1/12.

12. In regard to the damage caused to the goods of the plaintiff No. 2, the defendant had issued an open-delivery certificate dated 20th December, 2002 which was exhibited as PW1/13 and an open marine policy No. 351700/4400351/01 dated 10th September, 2001 was proved and exhibited as Exhibit PW1/14.

13. The witness of the plaintiffs' stated that the claim of plaintiff No. 2 raised on defendant was settled by plaintiff No. 1 and a sum of Rs. 39,99,863/- was paid to plaintiff No. 2 vide cheque No. 847042 dated 16th July, 2003 drawn on Bank of India in favor of plaintiff No. 2 which amount was accepted by the plaintiff No. 2 in full and final satisfaction of its claim and plaintiff No. 2 executed a discharge slip on which a receipt was also given by the plaintiff No. 2 for a sum of Rs. 39,99,863/- which was exhibited as Exhibit PW1/15 and dispatch voucher dated 16th July, 2003 was exhibited as PW1/16. The letter of subrogation which was given by plaintiff No. 2 in favor of plaintiff No. 1 was exhibited as PW1/17 and a special power of attorney dated 18th July, 2003 executed by plaintiff No. 2 in favor of plaintiff No. 1 was exhibited as Exhibit PW1/18.

14. The deponent categorically stated that defendant is a common carrier and he ought to have ensured the transportation of goods properly and should have ensured the safe transportation on the receipt of the consignment and should have taken all precautions and due care while transporting the goods to avoid damages/loss to the consignment entrusted to him. It was deposed that the loss was caused to the goods of the plaintiff No. 2 on account of negligence on the part of the defendant and attributable to the defendant. It was claimed that since the defendant has failed to pay the damages caused to the goods on account of negligence on the part of the defendant, which amount has been paid by the plaintiff No. 1, therefore, the defendant has also become liable to pay interest on the said amount. The plaintiff witness, therefore, claimed that the plaintiff No. 1 is entitled for a sum of Rs. 39,99,863 and interest @ 12% per annum with effect from 16th July, 2003 the date on which the amount was paid by the plaintiff No. 1 to plaintiff No. 2.

15. The pleas of the plaintiff No. 1 and plaintiff No. 2 have remained un- rebutted. No written statement was filed by the defendant denying and contesting the pleas raised by the plaintiffs. The deposition of the witness of the plaintiff has also not been challenged nor any evidence has been produced on behalf of defendant to rebut the facts established by the plaintiffs. In the circumstances, on the basis of the evidence produced by plaintiff and the documents produced, the inevitable and probable inference is that Shri Vinod Babbar is authorized on behalf of plaintiff No. 1 and plaintiff No. 2 to sign, verify and institute the suit on behalf of plaintiffs. The plaintiffs have also established that plaintiff No. 2 had entrusted the goods consignment for delivery at the address of plaintiff No. 2 at NODIA, however, the goods suffered damages on account of lack of caution and care taken by defendant and his negligence. The defendant had given an open delivery certificate accepting the damages of Rs. 39,99,863/- caused to the goods of the plaintiff No. 2. The open delivery certificate issued by defendant has been proved which fact has not been denied as neither any one has appeared on behalf of defendant nor any pleadings were filed countering the averments made in the plaint nor any evidence has been led to contradict the facts established by the plaintiffs. The plaintiff No. 1 has also established that he had paid a sum of Rs. 39,99,863/- by cheque to plaintiff No. 2 on 16th July, 2003, which amount was accepted by plaintiff No. 2 from plaintiff No. 1 consequent thereto plaintiff No. 2 has given all its rights in favor of plaintiff No. 1 to recover the amounts from defendant.

16. In the circumstances, the plaintiff No. 1 has been able to establish that he is entitled to recover a sum of Rs. 39,99,863/- from the defendant. The plaintiff No. 1 has also established that he became entitled to receive interest amounting Rs. 9,59,967/- from 16th July, 2003 to 16th July, 2005 and a total sum of Rs. 49,59,830/- is recoverable from the defendant by the plaintiff No. 1.

17. Consequently, a decree for recovery of money for Rs. 49,59,830/- is passed in favor of plaintiff No. 1 and against the defendant. Plaintiff No. 1 is also awarded pendente lite and future interest @ 9% per annum in the facts and circumstances. The plaintiff No. 1 shall also be entitled for costs of the suit. Decree sheet be drawn accordingly.