The Oriental Insurance Company ... vs M/S Ganpati Cargo Movers
2011 Latest Caselaw 6203 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Pronounced on: 19.12.2011

+ CS(OS) No. 739/2009

THE ORIENTAL            INSURANCE      COMPANY    LTD. AND
ANR......                                            Plaintiffs
                         Through: Mr. Santosh Tiwari, Adv. for
                         Mr. Ram N. Sharma, Adv.

                       versus


M/S GANPATI CARGO MOVERS                         ..... Defendant
              Through: None

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

V.K. JAIN, J. (ORAL)

1. This is a suit for recovery of Rs.31,49,229/-.

The plaintiff no.1 is an Insurance Company,

whereas, plaintiff no.2 is a company registered under

Companies Act. The plaintiff no.2 imported 5 refrigeration

chillers from M/s Carriers China Ltd., China. The

consignment containing two Chillers bearing nos. 64132

and 64136, on arrival at ICD Tuglakabad, it was got custom

cleared by plaintiff no.2 and was handed over to the

defendant for carriage from ISD, Tuglakabad to job site at

DLF Building-8, Phase-II, Gurgaon. The aforesaid

consignment was booked with the defendant vide GR

No.7446 dated 24.8.2006. The consignment was loaded in

truck/trailor no. HR-38C-7285 was belonging to the

defendant. The plaintiff no.2, later learnt that the

truck/trailor, in which the Chillers were loaded had

capsized while negotiating a pothole near exit gate of ICD

Tughlakabad at 8 PM on the same day, as a result of which

both the Chillers fell on the road and were badly damaged.

Those damaged Chillers were booked by the defendant with

M/s Maple Logistics Pvt. Ltd. for its onward journey in

another truck/trailor bearing no.HR-38 -5814 vide GR

No.2792 dated 27.8.2006.

Vide letter dated 05.12.2006, the plaintiff no.2

lodged a claim with the defendant demanding a sum of

Rs.1.12 crores. Since the goods were covered under MCE

policy including transit risk, issued by plaintiff no.1 in

favour of plaintiff no.2, a claim was lodged by plaintiff no.2

with plaintiff no.1 in respect of loss sustained by it on

account of damage of goods.

A Surveyor appointed by plaintiff no.1 company,

who, after surveying the spot and carrying out detailed

inspection of the damaged Chillers assessed the damage @

Rs.34,37,726/-. The Surveyor also informed the plaintiff

that the accident had occurred due to negligence of the

driver who was not able to control the vehicle while

negotiating a pothole near exit gate of ICD Tuglakabad. The

plaintiff no.2 executed documents, as such Letter of

Subrogation and Special Power of Attorney in favour of

plaintiff no.1, which then became entitled to recover the

amount of the claim from the defendant. Since the

defendant has failed to pay the aforesaid amount, it has

been claimed in the present suit.

2. The defendant was proceeded ex-parte on

19.9.2011 as no one appeared for it despite service.

3. The plaintiffs have 03 filed affidavits by way of

evidence. The first witness examined by the plaintiffs is Mr.

Lokesh Batra, Manager of plaintiff no.2-Insurance

Company. In his affidavit by way of evidence, Mr. Batra has

stated that the Chillers imported by them from China were

delivered to the defendant for carriage from ISD, Tuglakabad

to job site at DLF Building-8, Phase-II, Gurgaon, and the

goods were booked with the defendant vide GR No.7446

dated 24.8.2006. He has stated that the goods were loaded

on the truck/trailor No. HR-38C-7285. He has further

stated that plaintiff no.2, later learnt that the Chillers which

were loaded in truck/trailor, while negotiating a pothole

near exit gate of ICD Tughlakabad fell on the road, as a

result of which both the Chillers were badly damaged. The

defendant arranged to transport the damaged Chillers to the

job site through M/s Maple Logistics Pvt. Ltd., vide goods

receipt 'Ex.PW1/8'. Since the defendant failed to satisfy the

claim lodged with it by plaintiff no.2, the damage goods

being covered under MCE policy issued by plaintiff no.1, a

claim was lodged by them with plaintiff no.1. A Surveyor

was appointed to assess the damages, who assessed the

loss for a sum of Rs.34,37,726/-. The plaintiff no.1 paid a

sum of Rs.31,49,229/- to plaintiff no.2.

4. Mr. Sandeep Bharti is the Surveyor appointed by

plaintiff no.1 company to survey the damaged goods. He

has stated that on inspection of the damaged goods, and

examining documents such as invoices, whereby these

goods were sent to plaintiff No.2, he assessed the loss of

plaintiff no.2 to Rs.34,37,726/-, vide his report 'Ex.

PW1/13' (colly).

5. Mr. Mahesh Mittal, Divisional Manager of plaintiff

no.1 company is the third witness produced by the plaintiff.

He has supported on oath the case set-out in the plaint, and

he has stated that a sum of Rs.31,49,229/- was paid by

them to plaintiff no.2 vide cheque dated 25.8.2008.

6. 'Ex. PW1/1A' is a copy of power of attorney

whereby Mr.K.P.T Kutty was authorized to institute suit on

behalf of plaintiff no.2, whereas, 'Ex.PW2/1' is a copy of

power of attorney in favour of Mr. Lokesh Bhatra, whereby

he was authorized to commence legal proceedings on behalf

of the company and to represent the company in all courts

and proceedings.

7. The original GR whereby the goods were booked by

plaintiff no.2 with the defendant on 24.8.2006 has not been

filed by the plaintiff. It has come in the affidavit of Mr.

Lokesh Batra that the original lorry receipts meant for

plaintiff no.2 was forcefully taken by the driver of the vehicle

from the pocket of the official of plaintiff no.2 at the spot of

accident, so as to destroy the evidence. Since the defendant

has not come forward to contest the suit and not had even

responded to the notice received from plaintiff no.2, I see no

reason to disbelieve the assertion of the plaintiffs in this

regard, and, accept that the aforesaid Goods Receipts was

snatched by the driver of the vehicle and was destroyed at

the place of the accident.

'Ex. PW1/9' is a copy of complaint lodged by Mr.

Rajesh Malik of plaintiff no.2 on 27.8.2006, wherein it is

alleged that the damaged goods were being transported by

Ganpati Cargo. 'Ex.PW/10' is the notice sent by plaintiff

no.2, whereby a claim of Rs.1.12 crores was lodged by them

with the defendant for a loss sustained by them due to

damage of goods on account of negligence and mishandling

on the part of the defendant. The notice was sent vide

postal receipt dated 13.12.2006, which is attached to the

office copy of the notice. The Surveyor's report 'Ex.

PW1/13', coupled with the affidavit of Mr. Sandeep Bharti

would show that plaintiff no.2 sustained a loss of

Rs.34,37,726/- on account of damage of two Chillers

bearing nos. 64132 & 64136. 'Ex.PW1/11' is the complaint

lodged by plaintiff no.2 with the police on 18.12.2006

alleging negligence on the part of Ganpati Cargo in handling

the consignment. These documents also corroborate the

case of the plaintiff that, in fact, they had booked the goods

with the defendant, which after the accident, booked them

with M/s Maple Logistics Pvt. Ltd. for delivery at the site.

8. A perusal of the letter of subrogation 'Ex. PW1/3'

would show that the plaintiff no.2 received a sum of

Rs.31,49,229/- from plaintiff no.1 in settlement of its claim

for the loss sustained on account of damage of two Chillers

bearing nos. 64132 & 64136 under GR No.7446 dated

24.8.2006 and agreed that, if and when, such loss/damage

was recovered from the carriers and or third party, it will be

deemed to be the compensation of damage to plaintiff no.1.

Vide this document, plaintiff no.2 subrogated all its rights

and remedies in respect of the aforesaid damage in favour of

plaintiff no.1 and authorized it to file the suit in its own

name or in the name of plaintiff no.2, in respect of the

aforesaid claim.

9. Section 10 of Carriers Act, provides that no suit

shall be instituted against a common carrier for the loss of,

or injury to, goods entrusted to him for carriage, unless

notice in writing of the loss or injury has been given to him

before the institution of the suit and within six months of

the time when the loss or injury first came to the knowledge

of the plaintiff. The notice given by plaintiff No.2 to the

defendant under Section 10 of Carriers Act is Exh. PW-

1/10. Since, notice has been sent on 13 th December, 2006,

it was given within the prescribed period of 06 months from

the date of the loss suffered by plaintiff No.2. The Notice

gives full particulars of the manner in which loss was

suffered by plaintiff No.2 and also calls upon the defendant

to make good the loss suffered by plaintiff No.2. It,

therefore, meets all the requirements of Section 10 of the

Carriers Act. In Patel Roadways Limited vs. Birla

Yamaha Ltd., AIR 2000 SC 1461, Supreme Court held that

the liability of a carrier in India is like that of an insurer and

is an absolute liability subject to an Act of God and a special

contract which the carrier may choose to enter with a

customer. In this regard, the Court referred to the

provisions of Section 9 of the Act, which specifically

provides that in case of claim of damage or loss to or

deterioration of goods entrusted to a carrier, it is not

necessary for the plaintiff to establish negligence. It was

further held that even assuming that the general principle

in cases of tortuous liability is that of the party who alleges

negligence against the other must prove the same, the said

principle has no application to cover the case under the

Carriers Act. In South Eastern Carriers (P) Ltd. vs

Oriental F & G Insurance Co. Ltd. AIR 2004 Kerala 139,

the plaintiffs had chartered a truck for carrier of goods. The

truck met with an accident. It was claimed by the carrier

that there was no negligence or carelessness on the part of

the driver and that the accident had occurred only due to

unforeseen and inevitable reasons. Noticing that under

Section 8 of Carriers Act the liability of a common carrier is

absolute except for Act of God and no evidence had been

produced by the carrier to show that the accident had

occurred due to Act of God, it was held that the carrier was

answerable for the loss of goods even when the loss is not

caused by negligence or for want of care on its part. It was

held that the only exceptions recognized by the Act are the

Act of God and of State's enemies or a special contract that

the carrier may choose to enter into with the customer. In

Oriental Insurance Company vs Mukesh & Co. AIR 2000

MP 35, the goods entrusted to the carrier were gutted by fire

during transport. The cause of fire was attributed to sparks

emitted at the time of tightening of consignment by nylon

ropes at the octroi post. It was held by a Division Bench of

High Court that if the fire broke out due to some unknown

cause or due to the negligence of coolies, the transporter as

the common carrier under Section 8 of the Carrier Act, was

liable to pay for the loss of the damage to the consignee.

Hence, once it is shown that the goods in question

were entrusted to the defendant for transportation and the

same were damages, before being delivered to the consignee,

the defendant would be liable to make good the loss suffered

by the plaintiffs, irrespective of the accident, due to which

the goods were damaged, took place due to negligence of the

driver of the vehicle in which the goods were being

transported, or otherwise.

10. Since the defendant has failed to reimburse the

amount paid by plaintiff no.1 to plaintiff no.2, the suit is

liable to be decreed. The plaintiff no.1 is entitled to a decree

for recovery of Rs.31,49,229/-.

ORDER

In view of the above discussion, a decree for

recovery of Rs.31,49,229/-with costs and pendent lite and

future interest @ 6% per annum is hereby passed in favour

of plaintiff no.1 and against the defendant.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE DECEMBER 19, 2011 Ka/vn