Om Logistics Limited vs National Insurance Company ...
2017 Latest Caselaw 2764 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No.82/2017

%                                                        30th May, 2017

OM LOGISTICS LIMITED                                      ..... Appellant
                   Through:                Mr. Arun Aggarwal, Advocate.

                            versus

NATIONAL INSURANCE COMPANY LIMITED AND ANR.
                                     ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the concurrent judgments of the courts below; of the Trial

Court dated 12.4.2016 and the First Appellate Court dated 11.1.2017; by

which the suit for recovery of Rs.1,44,547/- has been decreed along with

interest at 9% per annum simple. The subject suit was filed by the

respondents/plaintiffs for recovery of amount on account of loss caused

by the appellant/defendant/transporter by short delivery of the goods

transported by the appellant/defendant for the respondent no.2 herein, and

who was the plaintiff no.2 in the trial court.

2. The facts of the case are that the National Insurance

Company Limited as plaintiff no.1 and M/s Synthite Industrial Chemicals

Limited as plaintiff no.2 (respondent nos.1 and 2 herein respectively)

filed the subject suit pleading that the appellant/defendant is the common

carrier of goods and which company was entrusted for transportation by

the respondent no.2/plaintiff no.2, a consignment of 142 cartons with an

insured value of Rs.16,91,305/-. The consignment in question was booked

by the appellant/defendant vide its consignment note no. 948802 dated

1.10.2003. The consignment was ex-Kochi to New Delhi. Transportation

was to be by road. During the course of transportation four cartons

having value of Rs.1,44,547/- were lost by the appellant/defendant

because out of the 142 cartons given to the appellant/defendant for

transportation only 138 cartons were finally delivered. The

appellant/defendant confirmed the short delivery of goods/cartons by

issuing its short certificate delivery bearing serial no.1949 dated

11.11.2003. The respondent no.2/plaintiff no.2 had insured the

consignment with the respondent no.1/plaintiff no.1, and accordingly

because of the loss having occasioned which was covered under the

Marine Policy no.570802/21/03/4400001, respondent no.1/plaintiff no.1

paid and settled the claim of Rs.1,44,547/- to the respondent no.2/plaintiff

no.2. After settlement of the claim, the respondent no.2/plaintiff no.2

executed a letter of subrogation dated 23.8.2004 in favour of the

respondent no.1/plaintiff no.1. The loss notice under Section 10 of the

Carriers Act (the Carriers Act, 1865, the statute as then applicable) dated

19.12.2003 was served upon the appellant/defendant by the respondent

no.2/plaintiff no.2 with respect to the loss of Rs.1,44,547/-. The subject

suit hence came to be filed on behalf of the two respondents/plaintiffs

with the respondent no.2/plaintiff no.2 being the owner of goods who had

transported its goods through the appellant/defendant, and the respondent

no.1/plaintiff no.1/insurance company which had settled and paid the

claim to the respondent no.2/plaintiff no.2 and taken the letter of

subrogation dated 23.8.2004 in its favour.

3. The appellant/defendant contested the suit and denied its

liability. It was pleaded by the appellant/defendant that the loss notice

dated 19.12.2003 was not served upon the appellant/defendant. Locus

standi of the respondent no.1/plaintiff no.1 to file the suit was denied.

The appellant/defendant also denied that any cause of action had accrued

in favour of the respondents/plaintiffs. It was accordingly prayed that the

suit be dismissed.

4. After the pleadings were complete, the trial court framed the

following issues:-

"1. Whether the suit of the Plaintiff is barred by limitation?

OPD

2. Whether the suit of the Plaintiff is not maintainable as Plaintiff had not complied with the provisions of Section 10 of Carriers Act? OPD

3. Whether the Plaintiff is entitled for a recovery of Rs.1,44,547/- from the Defendant as claimed for? OPP

4. Whether the Plaintiff is entitled for any interest if so at what rate and for which period? OPP

5. Relief, if any."

5. Evidence was thereafter led by both the parties and the

documents which are proved through the deposition of witnesses of the

respondents/plaintiffs and the appellant/defendant are referred to in paras

16 to 18 of the judgment of the trial court and these paras read as under:-

"16. Plaintiff in order to prove his case, has examined Sh. Sharat Kashyap as Administrative Officer, National Insurance Company Limited at Delhi Regional Office-I, Jeevan Bharti Building, Cannaught Place, Parliament Street, New Delhi110001, as PW1 by way of his affidavit Ex.PW1/A. He relied upon the following documents:

1. Ex.PW1/1 was de-exhibited and marked as Mark-PW1/1 being a photocopy of power of attorney in favour of all the Manager.

2. Ex.PW1/2 Marine Insurance Certificate.

3. Ex.PW1/3 was de-exhibited and marked as Mark-PW1/3 being photocopy of invoice No.L/8322003-2004.

4. Ex.PW1/4 was de-exhibited and marked as Mark-PW1/4 being photocopy of consignment note.

5. Ex.PW1/5 certificate of facts dated 11.11.2003.

6. Ex.PW1/6 was de-exhibited and marked as Mark-PW1/6 being photocopy of letter of Ministry of Finance.

7. Ex.PW1/7 legal notice dated 19.12.2003 along with original AD card.

8. Ex.PW1/8 submission of claim dated 20.12.2003.

9. Ex.PW1/9 cost of missing cargo.

10. Ex.PW1/10 Section 64 VB Compliance Format.

11. Ex.PW1/11 is claim discharge voucher.

12. Ex.PW1/12 is letter of subrogation.

17. On the other hand, Defendant company has examined Sh. Anubhav Chaturvedi, Officer (Legal and Liaison), Om Logistics Limited as DW1 by way of his affidavit Ex.DW1/A. He has relied on the following documents:

1. Ex.DW1/1 resolution in favour of previous AR Sh. Vivek Kalia.

2. Ex.DW1/2 resolution in favour of DW1.

18. Defendant company has also examined Sh. Anil Kumar, Booking Clerk, Om Logistics Limited as DW2 by way of his affidavit Ex.DW2/A. He has relied on the documents Ex.DW2/1 which is authority letter."

6. The trial court decreed the suit holding that the suit is within

limitation and also that the requirement of Section 10 of the Carriers Act

of serving of notice dated 19.12.2003 was complied with. The loss in

question was proved in terms of the short delivery certificate dated

11.11.2003 issued by the appellant/defendant itself. The suit was

accordingly decreed on account of the loss of a sum of Rs. 1,44,547/-

caused by the appellant/defendant as a transporter, being for the short

delivery/non-delivery of four cartons, and the fact that the respondent

no.1/plaintiff no.1/insurance company had paid the amount under the

subject policy to the respondent no.2/plaintiff no.2 and taken the letter of

subrogation thus entitling it to recover the loss amount.

7. On behalf of the appellant/defendant it is argued that the

judgments of the courts below are liable to be set aside and that there is

perversity in the findings and conclusions of the courts below on account

of the following reasons:-

(i) The subject suit was filed on 11.10.2006 and which is after three

years and one day of arising of the cause of action because cause of

action had accrued on 10.10.2003 when the consignment was short

delivered to the extent of four cartons. The suit was thus time-barred.

(ii) That the loss notice under Section 10 of the Carriers Act dated

19.12.2003 has been wrongly held to be proved by the courts below to

have been served upon the appellant/defendant.

(iii) The short delivery certificate dated 11.11.2003 could not have been

looked into because it was a short delivery certificate issued „without

prejudice‟ and hence the same could not be looked into in view of Section

23 of the Indian Evidence Act, 1872.

(iv) The letter of subrogation dated 23.8.2004 is a forged and fabricated

document and which is clear from the fact that whereas the date of said

letter of subrogation is 23.8.2004, however its attestation is of prior date

of 17.6.2004. The letter of subrogation is also pleaded to be forged

because the same was attested on 17.6.2004 whereas the purchase of the

stamp paper is of a later viz. 7.7.2004.

(v) There was no valid authority on behalf of the respondent

no.1/plaintiff no.1/insurance company for filing of the suit by the person

who filed the suit namely Sh. N.S. Dhillow, Manager.

8. In my opinion, all the arguments urged on behalf of the

appellant/defendant are without substance and are liable to be rejected.

No substantial question of law arises. Reasons are given hereinafter.

9.(i) Taking the first issue as to the suit was barred by limitation

because it is not filed within three years but it was filed on the first date

after the expiry of three years, it is seen that the subject suit was

admittedly filed on 11.10.2006. It is not disputed that cause of action in

this case accrued on 10.10.2003 when there was short delivery of four

cartons. The period of three years therefore has to be reckoned w.e.f

11.10.2003 and three years of which then would therefore expire on

10.10.2006. The suit has been however filed on 11.10.2006. The issue is

that whether the suit is barred being beyond the period of limitation by

one day.

(ii) In my opinion, the suit is not barred by time by one day inasmuch

as the answer to this issue is found in Section 15(2) of the Limitation Act,

1963 and which provides that where a legal notice has to be given for

filing of a suit then the period with respect to notice has to be added to the

period of limitation. Section 15(2) of the Limitation Act reads as under:-

"Section 15. Exclusion of time in certain other cases.- XXXXX (2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.

Explanation.-In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted."

(iii) In this case if the loss notice dated 19.12.2003, and sending of

which is a sine qua non in view of the Section 10 of the Carriers Act, was

duly served upon the appellant/defendant, then, the period with respect to

this notice is liable to be excluded i.e added to the period of limitation of

three years.

10. This aspect and argument of service of loss notice dated

19.12.2003 is also related to the second argument urged on behalf of the

appellant/defendant because the appellant/defendant pleads that the loss

notice dated 19.12.2003 was never served upon the appellant/defendant.

Let us examine the first two arguments urged by the appellant/defendant.

11. The loss notice dated 19.12.2003 has been proved and

exhibited as Ex.PW1/7. Along with the loss notice there is also an AD

card of the postal department. This AD card bears the stamp of the

appellant/defendant showing receipt of the letter dated 19.12.2003 on

3.1.2004. In my opinion therefore it is proved by the respondent

no.2/plaintiff no.2 that the loss notice Ex.PW1/7 dated 19.12.2003 has

been duly served upon the appellant/defendant in view of the filing and

proving of the AD card of the postal department which is also exhibited

as Ex.PW1/7 along with the loss notice dated 19.12.2003 also as

Ex.PW1/7.

12. Learned counsel for the appellant/defendant sought to argue

that the loss notice dated 19.12.2003/Ex.PW1/7 should not be held to be

proved inasmuch as the sending of the legal notice can only be proved by

a postal receipt, and not because of an AD card, however, this argument

is completely misconceived because not only the acknowledgment card is

a printed card of the department of posts, the same also contains the

postal registration number of the postal cover as no.1653. Once the

respondents/plaintiffs have proved and exhibited the loss notice and AD

card as Ex.PW1/7, then, if the case of the appellant/defendant was that

AD card is forged and fabricated, then the onus shifted upon the

appellant/defendant to summon the official from the postal department

that the AD card is not the AD card which is issued by the department of

posts. Admittedly the appellant/defendant did not summon the witness

from postal department to prove that the AD card is not with respect to a

letter issued vide registration no.1653, and therefore, in my opinion, on

preponderance of probabilities the courts below have rightly held that the

loss notice dated 19.12.2003 along with its AD card have been rightly

proved as Ex.PW1/7. The first two arguments urged on behalf of the

appellant/defendant are therefore rejected because not only the loss notice

dated 19.12.2003 has been proved to be served but also the fact that once

the period of service of the loss notice dated 19.12.2003 has to be taken

as excluded, and which period will be at least of one day because it takes

at least one day to issue the letter and sending it to the addressee, and

therefore if one day is added to the limitation period of three years, then,

the subject suit having been filed after three years and one day of arising

of the cause of action would be within limitation by application of

provision of Section 15(2) of the Limitation Act. In fact the period to be

added to the period of three years would be from 19.12.2003 to 3.1.2004

when the loss notice was served upon the appellant/defendant. The first

two arguments of the appellant/defendant thus have no merit and are

accordingly rejected.

13.(i) The third argument urged on behalf of the

appellant/defendant was that the short delivery certificate dated

11.11.2003/Ex.PW1/5 cannot be looked into as it was issued without

prejudice and hence taking the same as evidence is barred under Section

23 of the Indian Evidence Act. In this regard, firstly it is seen that no

objection was raised to the exhibition of this document Ex.PW1/5 when

this document was tendered and exhibited in evidence in the statement of

PW1 Sh. Sharat Kashyap on 7.10.2014. Once there is no objection to the

exhibition of this document, any right which the appellant/defendant may

have had under Section 23 of the Indian Evidence Act would stand

waived. I may also note that there is no defence laid down in the written

statement of the appellant/defendant that this loss notice Ex.PW1/7 dated

19.12.2003 cannot be looked into in view of the bar contained in Section

23 of the Indian Evidence Act and no such defence in the written

statement could be pointed out to this Court during the course of

arguments on behalf of the appellant/defendant.

(ii) There is another reason why the argument on behalf of the

appellant/defendant that short delivery certificate Ex.PW1/5 cannot in law

be looked into because it is issued without prejudice, inasmuch as, this

certificate besides showing that it is without prejudice, it is stated in the

same that that it is without prejudice to the rights of the

appellant/defendant as a carrier i.e the rights of the appellant/defendant as

a carrier under the Carriers Act are saved. The right of a carrier under the

Carriers Act is only if the loss notice was not served upon the

appellant/defendant/carrier as per Section 10 of the Carriers Act. As

already discussed above, the loss notice dated 19.12.2003 Ex. PW1/7 has

been duly proved to have been served upon the appellant/defendant, and

therefore, the language of the short delivery certificate Ex.PW1/5 dated

11.11.2003 in fact goes against the appellant/defendant. Therefore in my

opinion, nothing in fact turns upon the expression „strictly without

prejudice‟ as stated in the short delivery certificate Ex.PW1/5 dated

11.11.2003. This argument of the appellant/defendant is also therefore

rejected.

14.(i) The next argument urged on behalf of the

appellant/defendant was that the letter of subrogation Ex.PW1/12 dated

23.8.2004 should be held to be a forged and fabricated document. Two

arguments in this regard have been urged. Firstly, it is argued that if the

document bears the date of 23.8.2004 then how can the same be attested

by a Notary of an earlier date of 17.6.2004. Also, it is argued that the

stamp paper in question with respect to letter of subrogation Ex.PW1/12

is dated 7.7.2004, and therefore, there could not have been attestation of

an earlier date on 17.6.2004.

(ii) Both the arguments urged on behalf of the appellant/defendant to

argue that the letter of subrogation Ex.PW1/12 is a forged and fabricated

document are without any basis whatsoever. Firstly, it is seen that there

is no locus standi in the appellant/defendant to question the issue of letter

of subrogation because the questioning of letter of subrogation issued by

the respondent no.2/plaintiff no.2 in favour of the respondent

no.1/plaintiff no.1/insurance company would only be of the respondent

no.2/plaintiff no.2. Once the respondents/plaintiffs filed and proved the

letter of subrogation then if the contention of the appellant/defendant was

that the same was not duly executed by the respondent no.2/plaintiff no.2

in favour of the respondent no.1/plaintiff no.1, then, the

appellant/defendant could have summoned any officer of the respondent

no.2/plaintiff no.2 that the letter of subrogation was not issued by the

respondent no.2/plaintiff no.2. That however has not been done. Also it

is noted that the date of purchase of the stamp paper is not 7.7.2004 as is

argued on behalf of the appellant/defendant but the date of the purchase

of the stamp paper of the letter of subrogation is 7.7.2002 i.e much prior

to execution of the letter of subrogation on 23.8.2004. The date of

7.7.2002 is also the date prior to the date of the attestation by the Notary

on 17.6.2004. Accordingly, it cannot be argued on behalf of the

appellant/defendant that the notarization dated 17.6.2004 is earlier than

the date of purchase of the stamp paper which is alleged to be dated

7.7.2004 because in fact the purchase of the stamp paper of the letter of

subrogation is not 7.7.2004 but is 7.7.2002 and which becomes clear from

the back side of the stamp paper of the letter of subrogation and which

has been examined by this Court.

(iii) Also the issue of notarization being of an earlier date of 17.6.2004

does not impress this Court for various reasons. Firstly it is seen that the

Notary in his own hands by writing three lines has given endorsement of

the notarization being of 23.8.2004, and this is found in green coloured

pen lines written on the second page of the letter of subrogation. In any

case at best this argument of the appellant/defendant will result in letter of

subrogation being a non-notarized document, but non-notarization is not

the same thing as non-execution and accordingly once the letter of

subrogation has been proved and exhibited as Ex.PW1/12 by the

respondents/plaintiffs, and unless the appellant/defendant had summoned

any officer from the respondent no.2/plaintiff no.2 to prove the non-

execution of the letter of subrogation Ex.PW1/12, the courts below have

therefore committed no illegality in holding that the letter of subrogation

Ex.PW1/12 stands duly proved. The fourth argument urged on behalf of

the appellant/defendant that the letter of subrogation Ex.PW1/12 is a

forged and fabricated document is therefore rejected.

15.(i) The last argument urged on behalf of the

appellant/defendant is that the suit cannot be said to have been validly

filed through Sh. N.S. Dhillow on behalf of the respondent no.1/plaintiff

no.1 inasmuch as the power of attorney filed in favour of Sh. N.S.

Dhillow was de-exhibited as from Ex.PW1/1 to Mark PW1/1.

(ii) This argument is misconceived as it is settled law after the

judgment of the Supreme Court in the case of United Bank of India Vs.

Naresh Kumar and Others (1996) 6 SCC 660 that if on behalf of a

company a litigation is pursued to the hilt then on technicality such a

suit/litigation could not be dismissed that the suit was not properly

instituted.

(iii) I would also like to add another reason and which is that a suit by a

company by virtue of Order XXIX CPC can always be instituted by a

Principal Officer of the company. In the plaint, it is stated that Sh. N.S.

Dhillow is the Manager of the respondent no.1/plaintiff no.1/insurance

company and in the written statement it is only the authority of Sh. N.S.

Dhillow to file a suit which has been denied and it is not disputed that Sh.

N.S. Dhillow is not the Administrative Officer of the respondent

no.1/plaintiff no.1. Once Sh. N.S. Dhillow is a Principal Officer, then by

virtue of Order XXIX Rule 1 CPC, the suit has to have been taken as

validly filed on behalf of the respondent no.1/plaintiff no.1/insurance

company by its Principal Officer being Sh. N.S. Dhillow and who was the

Administrative Officer of the respondent no.1/plaintiff no.1. This

argument of the appellant/defendant is also therefore rejected.

16. In view of the above, no substantial question of law arises.

Dismissed.

MAY 30, 2017                                   VALMIKI J. MEHTA, J
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