RSA No.1353 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.3925-C of 2007 and RSA No.1353 of 2007 Date of decision:21.5.2009 Transport Corporation of India ......Appellant Versus National Insurance Company Ltd. and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Maninder Arora, Advocate for the appellant. Mr. Paul S. Saini, Advocate for the respondents. * * * Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent(Insurer) for recovery on account of damages caused to the consignment of respondent No.2 (insured) was decreed. As per the averments made in the plaint, defendant-appellant is common carriers/transport company which deals in the service of transportation of goods on hire basis. The plaintiff had issued a transit risk policy in favour of defendant No.3 (respondent No.2). The consignment was booked to the defendant No.3 through the appellant from Coimbatore to Samana. The appellant accepted the above said consignment for delivery to defendant No.3 (respondent No.2) which reached its destination on 20.3.1997. The said consignment was unloaded in the presence of truck driver and other employees of the defendant-appellant and the same was found in a damaged condition. Defendant No.3 immediately informed the plaintiff(respondent No.1). A surveyor was deputed to assess the loss and he made the final report of the loss vide his RSA No.1353 of 2007(O&M) 2 report dated 4.8.1997, assessing the loss due in transit to the tune of Rs.1,96,355/-. As per the terms and conditions, the appellant was bound to deliver the consignment in a safe and sound condition. The damaged delivery of the consignment to respondent No.2 was presumptive and a statutory proof of negligence on the part of the appellant. Defendant No.3 lodged a claim with the appellant who did not pay any amount but the insurer i.e the plaintiff who had issued the transit risk policy paid an amount of Rs.1,96,355/- vide cheque dated 5.8.1997. It was further averred in the plaint that the plaintiff upon making payment to the insured i.e. defendant No.3 got a statutory right to claim the said amount from the appellant. It was further averred that defendant No.3 had executed a power of attorney dated 17.9.1997 and letter of subrogation in favour of the plaintiff authorizing him to file the suit against the appellant. Since defendant- appellant had failed to pay the loss in spite of repeated demands, the present suit was filed. Defendants No.1 and 2 in their written statement admitted the factum of reaching the consignment at the premises of defendant No.3 on 20.3.1997 and its unloading from the truck in question but denied that it was received in a damaged condition. It was further stated that there was no negligence on the part of defendants No.1 and 2 and the consignment was delivered to defendant No.3 in a safe and sound condition. It was further stated that the plaintiff was not entitled to claim any compensation from defendants No.1 and 2. Remaining averments were also denied and dismissal of the suit was prayed for. In the replication, the plaintiff controverted the averments made in the written statement and reiterated the one in the plaint. From the pleadings of the parties, the following issues were framed by the trial Court : RSA No.1353 of 2007(O&M) 3 “1. Whether the plaintiff is entitled to the suit amount? OPP 2. Whether the suit has been filed by duly authorized person? OPP 3. Whether the plaintiff is entitled to interest on the suit amount and what rate? OPP 4. Whether the present suit is not maintainable? OPD 5. Relief.” After recording evidence and hearing learned counsel for the parties, the Lower Appellate Court decided all the issues in favour of the plaintiff and ultimately, suit of the plaintiff was decreed with costs. Aggrieved against the above said judgment, defendants No.1 and 2 filed an appeal which was dismissed by the Lower Appellate Court vide impugned judgment and decree dated 26.2.2007. While dismissing the appeal, the Lower Appellate Court after appreciating the evidence on record affirmed the findings of the trial Court and held that in view of the admission of DW1 and the documents produced on the record, the claim of the plaintiff against the defendant-appellant was duly proved. It was also observed that there was no evidence led by the appellant to prove that there was no negligence on their part. Still not satisfied, the defendant-appellant has preferred the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel appearing on behalf of the appellant has vehemently argued that suit filed by the plaintiff was not maintainable as under the law of subrogation, the suit must be filed under the name of an assured as has been held by the Hon'ble Apex Court in the case of Oberai Forwarding Agency v. New India Assurance Co. Ltd. and another RSA No.1353 of 2007(O&M) 4 2000 (2) PLR 113 SC and raised the following substantial question of law which sarises in this appeal” “Whether under the facts and circumstances of the case the suit is not liable to be dismissed as the same has been filed by the Insurance Co. instead of the Assured, in view of the Law of Subrogation?” On the other hand, learned counsel appearing on behalf of the respondents has supported the findings of the Courts below and has argued that no such substantial question of law arises in this appeal as raised by the defendant-appellant. In support of his case, learned counsel for the respondents has relied upon the judgments of this Court in DHTC (India) Limited v. The New India Assurance Company Ltd. and others 2009(1) PLR 690 and Prakash Roadlines (P) Ltd. v. Oriental Fire & General Insurance Co. Ltd (2000) 10 SCC 64 and prayed for dismissal of the appeal. I have heard learned counsel for the parties. The question raised by the appellant is squarely covered by a decision of this Court in DHTC (India) Limited's case (supra) as an identical question of law was raised in the aforesaid judgment and after discussing the Oberai Forwarding Agency's case (supra), it was held that in its literal sense, subrogation is the substitution of one person for another and the doctrine of subrogation confers upon the insurer the right to receive the benefit of such rights and remedies as the assured has against third parties in regard to the loss to the extent that the insurer has indemnified the loss and made it good and therefore, the insurer was entitled to exercise whatever rights the assured possess to recover to that extent compensation for the loss. Moreover, in the present case, from the pleadings of the appellant, it is clear that no such objection was raised by RSA No.1353 of 2007(O&M) 5 the defendant-appellant in its written statement with regard to maintainability of the suit in the name of the plaintiff-Company itself. Neither any such issue was claimed nor any argument was raised before the Courts below. Thus, in view of the judgment of the Hon'ble Supreme Court in the case of Bachhaj Nahar v. Nilima Mandal and another JT 2008 SC (13) 255, the appellant is not entitled to raise the aforesaid substantial question of law at this stage. Thus, the substantial question of law raised by the appellant does not arise in this appeal. For the reasons recorded above, I find no merit in this appeal. Dismissed. May 21, 2009 (RAKESH KUMAR GARG) ps JUDGE