IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CM No.12224-C of 2008 in RSA No.2476 of 2008 Date of decision: December 22, 2008 National Insurance Co. Ltd. ... Appellant Versus M/s Talwar Transport & another ... Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. D. K. Dogra, Advocate for the appellant. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? AJAY TEWARI, J.(Oral) CM No.12224-C of 2008 For the reasons recorded in the application, the same is allowed. RSA No.2476 of 2008 This appeal has been filed against the concurrent judgments and decrees of the Courts below dismissing the suit of the Insurance Company for recovering the damages of Rs.4,92,097/- from the Transport Company for goods which were damaged. The case of the respondent-transporter was that due to heavy rains there was an accident and the truck over turned. The respondents had also proved that the goods were properly packed at the time of dispatch. In this view of the matter, RSA No.2476 of 2008 -2- learned Lower Appellate Court in para 16 relied upon the survey report Ex. P-8 and P-40 which was put into evidence by the plaintiff-Insurance Company itself. In that survey report, it was mentioned that the cause of damages was attributed to over-turning of lorry and further damage by rain water. On the basis of that report, the learned Lower Appellate Court came to the conclusion that it was not a case of neglect as envisaged by Section 9 of the Carriers Act, 1865. In my opinion, no fault can be found with this finding. Under Section 9 of the Carriers Act, 1865, 'neglect' would have to be some positive act and the finding of neglect could not be arrived at merely because the carrier met with an accident. As far as the second ground of limitation is concerned, learned counsel for the appellant has relied upon the decision of this Court M/s The Jullundur Ex-Servicemen Motor Tranport Cooperative Society Ltd. vs. The General Assurance Society Ltd., Calcutta and another reported as AIR 1978 Punjab & Haryana 336 wherein it was held as follows: “From the above observations, it is evident that the insurer is entitled to institute a suit in the name of the assured after making the payment of the claim to him. It cannot be disputed that the rights of the insurer flows from those of the insured. In the present case, it has already been held above that a notice has been served upon file defendant by plaintiff No.2. In my opinion, after the service of notice under Section 10 by the assured, it was not necessary for the insurer to serve another notice on the carrier. I, therefore, repel the contention of Mr. Mahajan.” RSA No.2476 of 2008 -3- In this view of the law, the findings of the Lower Appellate Court on the question of limitation for issuing notice under Section 10 of the Carriers Act, 1865 is set aside. However, in view of the findings on the first point, the appeal is dismissed. No costs. December 22, 2008 (AJAY TEWARI) sonia JUDGE