Delhi High Court
The New India Assurance Co.Ltd. vs Patni Roadlines & Anr. on 25 September, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2036/2000
% 25th September, 2012
THE NEW INDIA ASSURANCE CO.LTD. ...... Plaintiff
Through: Mr. Ramesh Kumar, Adv.
VERSUS
PATNI ROADLINES & ANR. ...... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The subject suit for recovery of `31,02,400.00 has been filed by the
plaintiff-insurance company as an attorney/subrogee against the defendant
no.1/transporter/carrier inasmuch as the consigned goods were found
missing/stolen during the course of transportation.
2. The facts of the case are that the defendant no.2 engaged defendant
no.1 as a carrier/transporter to transport the consignment of Tulsi Mix Gutka to
M/s Swastic Incenses, S.P.Mukherjee Marg, Delhi. The 306 cases of suit
consignment were dispatched on 21.9.1997 by defendant no.1's truck bearing
registration no. GJ-6V 4224. The consignment was dispatched from the defendant
CS(OS) 2036/2000. Page 1 of 4
no.2's factory at Noida vide invoice nos. 560, 561 and 563 dated 21.9.1997 for `
10,20,340.55, ` 10,31,582.99 & ` 6,33,314.82 respectively vide goods receipt
number 900557. The consignment did not reach the destination and the defendant
no.2 took up the matter with defendant no.1 by sending letters dated 23.9.1997 and
8.10.1997, which failed to evoke any response. The defendant no.2 thereafter filed
a police complaint on 23.9.1997 with the Gautam Buddh Nagar Police Station,
Noida and FIR No. 076338 dated 8.10.1997 registered under Section 406 I.P.C.
The carrier/defendant no.1 was given notice dated 13.10.1997 under Section 10 of
the Carriers Act, 1865 by registered post AD claiming the amount of loss of `
26,85,238.36. The plaintiff got the loss surveyed in terms of the surveyor's reports
dated 29.1.1998 and 13.4.1998 and who came to the conclusion that the defendant
no.1 had mis-appropriated the entire cargo and sold the same at Ahmedabad. The
police recovered 55 Cases and 8 Jars which were delivered to the defendant no.2
by the order dated 27.11.1997 of the concerned Joint Judicial Magistrate, First
Class, Patam, Gujrat.
3. Since the consignment was insured with the plaintiff under Marine
Insurance Policy (Cargo) No. 21/310702/00848 dated 8.4.1997 for the period
01.4.1997 to 31.3.1998, the plaintiff paid and settled the claim of defendant no.2
for a sum of ` 22,00,284 and made the payment on 16.11.1998. The defendant
CS(OS) 2036/2000. Page 2 of 4
no.2 on receipt of the compensation executed a power of attorney as also a letter of
subrogation dated 21.2.2000 in favour of the plaintiff, who has therefore filed the
subject suit for recovery against the defendant no.1.
4. Defendant no.2 is a proforma party. Defendant no.1 failed to appear
after service and was proceeded ex parte.
5. Plaintiff to prove its case has filed affidavit by way of evidence of Sh.
S.P.Bhatnagar PW-1. PW-1 has deposed to and proved the factum of grant of
insurance policy. PW-1 has also proved the invoices which have been exhibited as
Ex.PW1/1 to Ex.PW1/3. The sending of the communications to the defendant no.1
has also been deposed to. Service of the notice under Section 10 of the Carriers
Act dated 13.10.1997 along with postal receipt have been proved and exhibited as
Ex.PW1/4 and Ex.PW1/5. The Survey Reports dated 29.1.1998 and 13.4.1998
have been proved and exhibited as Ex.PW1/6 and Ex.PW1/7. The final payment
receipt dated 16.11.1998 to the defendant no.2 for a sum of ` 22,00,284/- is
exhibited as Ex.PW1/8.The subrogation letter and power of attorney dated
21.2.2000 have been exhibited as Ex.PW1/9 and Ex.PW1/10.
6. In view of the fact that the plaintiff has proved its claim by filing an
affidavit by way of evidence, proving the necessary documents, and to which there
is no cross-examination on behalf of the defendant no.1 who was proceeded ex
CS(OS) 2036/2000. Page 3 of 4
parte, I am of the opinion that the plaintiff has proved its case of recovery of
amount of ` 31,02,400.00 against the defendant no.1.
7. The suit of the plaintiff is therefore decreed for a sum of `
31,02,400.00 alongwith pendente lite and future interest at 9% per annum simple
till payment. Plaintiff will also be entitled to costs in terms of the Rules of the
Court. Decree sheet be prepared.
SEPTEMBER 25, 2012 VALMIKI J. MEHTA, J.
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