The Oriental Insurance Company ... vs M/S Ganpati Cargo Movers
2011 Latest Caselaw 6205 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 19.12.2011

+ CS(OS) No. 738/2009


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.47,16,327/-.

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. 64133

and 64135 after custom clearance was delivered to the

defendant for carriage from ISD, Tuglakabad to job site at

DLF Building-8, Phase-II, Gurgaon. The plaintiff no.2, later

learnt that the truck/trailor, in which the Chillers were

loaded, while negotiating a u-turn at an intersection at Pul

Prahladpur, Badarpur, Delhi in the night intervening

24/25.8.2006, as a result both the Chillers loaded on the

truck/trailor bearing no. HR-46-1485 fell on the road and

were badly damaged. Those damaged Chillers were booked

by the defendant with M/s Maple Logistics Pvt. Ltd. for their

onward journey, in another truck/trailor bearing no.HR-37

B-4180.

2. The plaintiff no.2 lodged a claim with the

defendant demanding a sum of Rs.1.12 crores being the

costs of the Chillers, which were damaged. The goods which

had damaged were covered under policy, which the plaintiff

no.1 had issued to plaintiff no.2. The plaintiff no.2,

accordingly lodged a claim with plaintiff no.1. The Surveyor

appointed by plaintiff no.1 company after surveying the spot

and carrying out detailed inspection of the damaged Chillers

assessed the damage @ Rs.51,57,717/-. 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 the u-turn at Pul Prahladpur,

Badarpur, Delhi. Since the total value of the goods was

Rs.1.12 crores and the value of the damaged goods was

assessed at Rs.51,57,717/-, the plaintiff no.1 paid a sum of

Rs.47,16,327/- to the plaintiff no.2. 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 to 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 this suit.

3. The defendant was proceeded ex-parte on

19.9.2011 as no one appeared for it despite service.

4. The plaintiffs have examined three witnesses in

support of its case. PW1, Mr. Mahesh Mittal is the

Divisional Manager of plaintiff no.1 company. He has

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

stated that Power of Attorney 'Ex.PW1/2' and Letter of

Subrogation 'Ex.PW1/3' was executed by plaintiff no.2 in

favour of plaintiff no.1. He has further stated that the goods

which plaintiff no.2 had imported from China and which

were delivered to the defendant for carrying the same from

ISD, Tuglakabad to job site at DLF Building-8, Phase-II,

Gurgaon had a total value of Rs.1.12 crores, which was the

invoice value of those goods. According to him, plaintiff

no.1 paid a sum of Rs.47,16,327/- to plaintiff no.2,

pursuant to the claim lodged by it with plaintiff no.1 on

account of damage to the goods which had imported from

China.

6. PW2, Mr. Lokesh Batra is the Manager of plaintiff

no.2 company. He has stated that the Power of Attorney

'Ex.PW1/2' and Letter of Subrogation 'Ex.PW1/3' was

executed by plaintiff no.2 in favour of plaintiff no.1. He has

stated that plaintiff no.1 imported 5 refrigeration chillers

from M/s Carriers China Ltd., China, vide documents 'Ex.

PW1/4 to PW1/7'. He has further stated that two Chillers

bearing nos. 64133 and 64135 were delivered by plaintiff

no.2 to the defendant for carrying from ISD, Tuglakabad to

job site at DLF Building-8, Phase-II, Gurgaon, vide GR

No.7437 dated 24.8.2006. He has also stated that the

goods which were damaged during transit were covered by

the policy, which plaintiff no.1 had issued to plaintiff no.2

and after survey of the damaged goods by the Surveyor

appointed by plaintiff no.1 company, they were paid a sum

of Rs.47,16,327/- vide discharge voucher/payment voucher

'Ex.PW1/14'. He has further stated that the goods were

damaged due to negligence, carelessness and misconduct

on the part of the employees of the defendant.

PW3, Mr. Sandeep Bharti is the Surveyor

appointed by plaintiff no.1 company to survey the damaged

goods. He has stated that he held out a survey of the

damaged goods and also took their photographs at the

premises of plaintiff no.2. He assessed the value of the

damaged goods @ Rs.51,57,717/- vide his report dated

14.6.2008.

5. The testimony of PW2, Mr. Lokesh Batra would

show that two Chillers, which plaintiff no.2 had imported

from China were delivered to the defendant for being

transported from ISD, Tuglakabad to job site at DLF

Building-8, Phase-II, Gurgaon were loaded in truck/trailor

bearing no.HR-46-1485, belonging to the defendant. His

testimony also shows that the aforesaid Chillers were

damaged when they were actually delivered at the site. The

case of the plaintiff is that after accident in which Chillers

were damaged, the defendant sent the goods to the

destination through M/s Maple Logistics Pvt. Ltd. 'Ex.

PW1/8' is the copy of the Goods Receipt whereby the

consignment was sent to construction site in Gurgaon.

Since the consignment, which got damaged during transit

was covered under the policy issued by plaintiff no.1 to

plaintiff no.2, it was under the legal obligation to reimburse

plaintiff no.2 for the loss caused to the goods which were

damaged in the course of transit.

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.

6. A perusal of the invoices would show that the

purchase value of these two Chillers was Rs.1.12 crores.

The Surveyor assessed the loss of plaintiff no.2 at

Rs.51,57,717/-, vide his report 'Ex.PW1/13' (colly). The

Letter of Subrogation 'Ex.PW1/3' and discharge

voucher/payment voucher 'Ex.PW1/14' would show that

plaintiff no.1 paid a sum of Rs.47,16,327/- to plaintiff no.2

for the damage, which was caused to the goods in the

course of transportation. Thus, the plaintiff no.2 suffered a

loss of Rs.47,16,327/-, which it has recovered from plaintiff

no.1 after executing the documents, as such letter of

subrogation and power of attorney in its favour.

7. 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.

8. 'Ex.PW1/16' is the legal notice to the defendant

requiring it to make payment of Rs.47,16,327/- to the

plaintiffs. Since the defendant has failed to pay the

aforesaid amount, the plaintiffs are entitled to recover it

from the defendant.

ORDER

In view of the above discussion, a decree for

recovery of Rs.47,16,327/- 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