Delhi High Court
M/S. Caravan Road Carriers vs National Insurance Co.Ltd. & Anr. on 4 March, 2011
Author: Valmiki J. Mehta
R-26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 584/2001
% 4th March, 2011
M/S. CARAVAN ROAD CARRIERS ...... Appellant
Through: None.
VERSUS
NATIONAL INSURANCE CO.LTD. & ANR. ...... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the Regular Board of this Court since 17.1.2011. Today
it is effective Item No. 8 on the Regular Board. Though it is 12.55 P.M no-one
has appeared for the parties. I have, therefore, perused the record and am
proceeding to dispose of the matter.
2. The challenge by means of this Regular First Appeal under Section 96
of the Code of Civil Procedure, 1908, is to the impugned judgment and
decree dated 29.03.2001 whereby the suit of the respondent No.1/Insurance
Company/ plaintiff no.1/power of attorney holder of the respondent No. 2
M/s. Avery India Limited/plaintiff No. 2 was decreed against the appellant
who was a common carrier.
3. The facts of the case are that the plaintiff No. 2/respondent No. 2/M/s.
Avery India Limited gave a Weigh Bridge Model No. 5104 of the value of Rs.
RFA 584/2001 Page 1 of 5
3,82,381/- for transportation to the appellant/common carrier from Delhi to
Gubbi (Karnataka) for delivery to one M/s. Thippeswamy Oil Extraction Pvt.
Ltd. (Tumkel District). The machinery was insured with the respondent
No.1/plaintiff No. 1 company. The machinery was being transported in 21
packages. There was theft of goods at Indore and for which an FIR No.
986/91 was lodged at P.S. Indore (M.P.) and the plaintiff No. 2 lodged its
claim with the plaintiff No. 1 on 16.12.1991. The plaintiff No. 2/respondent
No. 2 also lodged its claim with the appellant/defendant/common carrier vide
letter dated 19.12.1991 (Ex. PW-1/3). Exhibit PW-1/3 is also admitted to be
received by the defendant/appellant vide Ex.DW1/D dated 1.1.92. The
respondent No. 1/insurance company appointed its surveyor and who
assessed the loss at Rs. 3,24,674/- and which was settled with the
respondent No. 2/plaintiff No. 2 on 18.5.1992 who accepted the amount in
full and final consideration and executed a discharge voucher in favour of
plaintiff No. 1/respondent No.1. The plaintiff No. 2/respondent No. 2 on
receipt of the amount from plaintiff no.1/respondent no.1 executed a letter of
subrogation and special power of attorney whereby the plaintiff No.
2/respondent No. 2 assigned, transferred and abandoned all their rights, title
and beneficial interest in the insurance policy to the extent of amount settled
in respect of subject matter insured including the right to recover the amount
from the common carrier to the plaintiff No. 1./respondent No. 1. Since the
appellant/defendant failed to pay the amount, the subject suit came to be
filed for Rs. 4,12,336/- along with interest.
4. The appellant/defendant contested the suit on various grounds
including of the suit being bad for mis-joinder and non-joinder of necessary
RFA 584/2001 Page 2 of 5
parties; that the suit of the plaintiff being time bared; that the suit of the
plaintiff is not maintainable as no notice u/s. 10 of the Carriers Act, 1865 has
been given; that the suit of the plaintiff Nos. 1 & 2 has been filed against the
defendant in collusion with each other and that Delhi courts have no
jurisdiction.
5. After the pleadings were complete, the trial court framed the following
Issues:
"i. Whether the suit of the plaintiff is signed, verified and
instituted by competent person? OPP.
ii. Whether the suit of the plaintiff is bad for mis-joinder
and non-joinder of necessary parties? OPD.
Iii. Whether the suit is barred by time? OPD.
iv. Whether the suit is bad for want of notice U/s 10 of
Carriers Ac, if so its effect? OPD.
v. Whether the suit of the Plaintiff is collusive, if so, its
effect? OPD.
vi. Whether this court has got territorial jurisdiction to
entertain the present suit? OPP.
vii. Whether the plaintiff is entitled to the suit amount as
claimed in the plaint? OPP.
viii. Whether the plaintiff is entitled to interest, if so, at
what rate and for which period? OPP.
ix. Relief."
6. With regard to Issue No. 1, the trial court has rightly held that the suit
was properly instituted as the power of attorney was exhibited as Ex. PW-
1/1. The suit was held to be properly filed in view of the deposition of PW-1.
No fault can be found with this finding. With regard to Issue No. 3, the trial
court has held that the defendant was a partnership firm and which could be
RFA 584/2001 Page 3 of 5
sued in its name. This position is correct in law as per Order 30 CPC. The
trial court has also held that the suit is filed within limitation because the
loss by theft took place on 23.11.1991 and the suit was filed on 28.10.1993
and which was therefore well within limitation. With regard to the defence
that no notice was served under Section 10 of the Carriers Act, the trial court
has referred to the letter dated 19.12.1991 EX. PW-1/3 served by the plaintiff
No.2/respondent no.2 upon the appellant/defendant for settlement of the
claim. There was another notice dated 1.1.1992, Ex. PW-1/4, receipt of
which was admitted in Ex. DW-1/D. The trial court has rightly held that the
requirement of the Section 10 of the Carriers Act was complied with. The
trial court has held that the suit was rightly filed in Delhi because the loss
was caused to the plaintiff No. 1/respondent No. 1 at Delhi and the claim of
the plaintiff No. 2 was lodged at Delhi. I may only state that dehors the
findings and the conclusion of the trial court on the issue of territorial
jurisdiction I hold that the courts at Delhi would have jurisdiction because the
goods which were stolen were to be transported from Delhi to Gubbi
(Karnataka) and therefore part of the cause of action did arise in Delhi.
7. I note that the trial court has granted pendente lite and future interest
@ 18%. Considering the present economic scenario and the low interest
regime prevailing, and also the long pendency of the litigation, it is a fit case
where the rate of interest should be reduced from 18% per annum to 10%
per annum simple. The Supreme Court has also in its recent chain of
judgments held that that the high rates of interest should be reduced,
especially, considering the long pendency of litigation. These judgments of
the Supreme Court are Rajendra Construction Co. v. Maharashtra
RFA 584/2001 Page 4 of 5
Housing & Area Development Authority and others, 2005 (6) SCC
678, McDermott International Inc. v. Burn Standard Co. Ltd. and
others, 2006 (11) SCC 181, Rajasthan State Road Transport
Corporation v. Indag Rubber Ltd., (2006) 7 SCC 700 & Krishna
Bhagya Jala Nigam Ltd. v. G.Harischandra, 2007 (2) SCC 720 and
State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd (2009) 3
Arb. LR 140 (SC).
8. The appeal is therefore partially allowed and though the impugned
judgment and decree on merits is sustained, however, the pendente lite and
future rate of interest till realization of the decretal amount will be at 10%
per annum simple. Parties are left to bear their own costs. Decree sheet be
prepared. Trial court record be sent back.
March 4, 2011 VALMIKI J. MEHTA, J.
godara
