CS(OS) No. 1468/2001 Page 1 of 23 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 15.11.2010 Judgment Pronounced on: 23.11.2010 + CS(OS) No. 1468/2001 M/S NATIONAL INSURANCE CO. LTD. & ANR. ..…Plaintiff - versus - M/S MUKESH TEMPO SERVICE (CARRIER) .....Defendant Advocates who appeared in this case: For the Plaintiff: Mr L.G. Tyagi For the Defendant: Mr Ajit Warrier and Mr Sandeep Grover CORAM:- HON’BLE MR JUSTICE V.K. JAIN 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported Yes in Digest? V.K. JAIN, J 1. This is a suit for recovery of `31,06,425/-. Plaintiff No.1 is an Insurance Company registered under Companies Act. The suit has been instituted and the plaint is signed CS(OS) No. 1468/2001 Page 2 of 23 and verified by its Manager Mr D.P. Ghosh, who is alleged to be holding a Power of Attorney from plaintiff No.1 in this regard. Plaintiff No.2 is also a company and it is alleged that it has authorized plaintiff No.1 to file the suit on its behalf. Plaintiff No.2 booked 13 packets containing 30,000 pieces of ICs and 42 packets containing 1134000 capacitors with the defendant for transportation from IGI Airport, New Delhi to the factory premises of plaintiff No.2. The consignment however was not delivered by the defendant to plaintiff No.2. Since the consignment was insured with plaintiff No.1, investigators were appointed to carry out investigation and they reported loss of the consignment. Plaintiff No.1 settled the claim of plaintiff No.2 on payment of `31,06,425/-. A Letter of Subrogation was executed by plaintiff No.2 in favour of plaintiff No.1 whereby plaintiff No.1 became entitled to recover the aforesaid amount from the defendant. The plaintiffs have accordingly claimed the amount of `31,06,425/- from the defendant. 2. The defendant has contested this suit and has taken a preliminary objection that the suit is barred for non-compliance of Section 10 of Carriers Act, 1865. It has also been alleged in the written statement that the CS(OS) No. 1468/2001 Page 3 of 23 subrogation by plaintiff No.2 in favour of plaintiff No.1 is not valid and legally enforceable. It has also been alleged that the suit is not properly valued for the purpose of Court fee and jurisdiction. It has further been alleged that in view of the provisions contained in Section 3 of Carriers Act, the suit against the defendant is not maintainable since value of the goods were not disclosed by plaintiff No.2 to the defendant while booking the goods for transportation. On merits, it has been alleged that when the goods of the plaintiffs were being transported in tempo No. DL-1L-B- 0994 on 1st July 1998, some robbers travelling in a car stopped the tempo near Gopinath Bazar, New Delhi, represented themselves to be police officials and took the keys of the vehicle from the driver on the pretext that they wanted to take the tempo to the Police Station. The robbers, however, took the tempo to some unknown place and abandoned it there after taking away all the goods. FIR No. 242/1998 in this regard was lodged at Police Station, Delhi Cantt on 1st July 1998. It has also been claimed that there was no negligence on the part of the defendant and the acts of robbery being beyond its control, it cannot be made liable for the loss. CS(OS) No. 1468/2001 Page 4 of 23 3. The following issues were framed on the pleadings of the parties:- (i) Whether the suit is barred for non- compliance of Section 10 of the Carriers Act, 1865? OPD (ii) Whether the purported subrogation by the plaintiff No.2 in favour of plaintiff No.1 is a valid and legally enforceable subrogation? OPP (iii) Whether the suit is correctly valued for the purposes of court fees and jurisdiction? OPP (iv) Whether the present suit is maintainable against the defendant? OPP (v) Whether the plaintiff is entitled to any relief? OPP 4. The plaintiffs have examined only one witness Mr A.K. Goel in support of their case. No witness has been examined by the defendant. ISSUE No. 3 5. This is a suit for recovery of money and ad valorem Court fee has been paid by the plaintiffs on the amount claimed by them. The issue is decided against the defendant and in favour of the plaintiff. ISSUE No. 1 6. Section 10 of Carriers Act, provides that no suit shall be instituted against a common carrier for the loss of, CS(OS) No. 1468/2001 Page 5 of 23 or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff. 7. The goods in question were admittedly booked by plaintiff No.2 with the defendant on 1st July 1998. Ex. PW 1/3 is the letter written by plaintiff No.2 to the defendant on 3rd July 1998. Vide this letter a claim was lodged with the defendant for Rs1Lac in respect of loss of 1,40,000 pieces of Ceramic Capacitors. The letter also refers to tempo No. DL- 1L-B-0994. It also contains reference to Airway Bill No. 618103565222. Ex. PW 1/4 is the letter dated 3rd July 1998 sent by plaintiff No.2 to the defendant lodging claim for Rs30Lacs on account of loss of 30,000 pieces of ICs and 11,34,000 pieces of Electrolitic Capacitors. There is reference to tempo No. DL-1L-B-0994 and Airway Bill No. 6180040284 and 21728833803H in this letter. Ex. P-2 is the letter dated 29th July 1998 written by the defendant to plaintiff No.2. This is an admitted document, the same having been admitted on 16th October 2003. Vide this CS(OS) No. 1468/2001 Page 6 of 23 letter, the defendant acknowledged receipt of the letters in which plaintiff No.2 had claimed `1Lac and `30,000/-, respectively for the loss of the goods, which were transported in vehicle No. DL-1L-B-0994. Obviously, the reference is to the letters of plaintiff No.2 Ex. PW1/3 and PW1/4. The notice envisaged in Section 10 of Carriers Act is a notice whereby the carrier is informed of the loss or injury to the goods and the object of the notice is to give an opportunity to the carrier to make amendments for the occurrence of the loss and settle the claim of the consigner or owner of the goods. There is no particular form of notice prescribed in the Act and, therefore, it would be sufficient compliance of the requirement of the Section if the carrier is informed about the loss or injury to the goods. In any case, Ex. PW1/3 and PW1/4 meet the requirement of law in this regard. The issue is decided against the defendant and in favour of the plaintiffs. ISSUE No.4 8. During the course of arguments, it was contended by the learned counsel for the defendant that in view of the provisions contained in Section 3 of the Carriers Act, the liability of the carrier is limited to `100/- since the value CS(OS) No. 1468/2001 Page 7 of 23 and description of the goods were not disclosed to the defendant, at the time the goods were sent for transportation. Section 3 of the Act provides as under:- Carriers not to be liable for loss of certain goods above one hundred rupees in value unless delivered as such.- No common carrier shall be liable for the loss of or damage to property delivered to him to be carried exceeding in value one hundred rupees and of the description contained in the Schedule to this Act, unless the person delivering such property to be carried, or some person duly authorized in that behalf, shall have expressly declared to such carrier or his agent the value and description thereof. 9. A bare perusal of this Section would show that it applies to those goods which are described in the schedule to the Act. I have perused the schedule to Carriers Act, 1865. Neither the Capacitors nor the ICs are included amongst the goods described in the schedule. The learned counsel for the defendant could not point our any entry in the schedule which covers either Capacitors or ICs. Therefore, Section 3 of the Act has no application to the consignments which were booked by plaintiff No.2 with the defendant. 10. The main plea taken by the defendant is that since the goods were stolen while they were being transported in a CS(OS) No. 1468/2001 Page 8 of 23 tempo, there was no negligence on its part and consequently, it is not liable to compensate the plaintiffs for the loss of the goods. In Patel Roadways Limited vs. Birla Yamaha Ltd., AIR 2000 SC 1461, Supreme Court held that the liability of a carrier in India is like that of an insurer and is an absolute liability subject to an Act of God and a special contract which the carrier may choose to enter with a customer. In this regard, the Court referred to the provisions of Section 9 of the Act, which specifically provides that in case of claim of damage or loss to or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. It was further held that even assuming that the general principle in cases of tortuous liability is that of the party who alleges negligence against the other must prove the same, the said principle has no application to cover the case under the Carriers Act. 11. In the case before this Court no special contract between plaintiff No.2 and the defendant has even been alleged. Assuming that the goods entrusted to the defendant for transportation were stolen while being CS(OS) No. 1468/2001 Page 9 of 23 transported to the premises of plaintiff No.2, a loss to the plaintiffs on account of theft of the goods cannot be considered as an Act of God. In South Eastern Carriers (P) Ltd. vs Oriental F & G Insurance Co. Ltd. AIR 2004 Kerala 139, the plaintiffs had chartered a truck for carrier of goods. The truck met with an accident. It was claimed by the carrier that there was no negligence or carelessness on the part of the driver and that the accident had occurred only due to unforeseen and inevitable reasons. Noticing that under Section 8 of Carriers Act the liability of a common carrier is absolute except for Act of God and no evidence had been produced by the carrier to show that the accident had occurred due to Act of God, it was held that the carrier was answerable for the loss of goods even when the loss is not caused by negligence or for want of care on its part. It was held that the only exceptions recognized by the Act are the Act of God and of State‟s enemies or a special contract that the carrier may choose to enter into with the customer. In Oriental Insurance Company vs Mukesh & Co. AIR 2000 MP 35, the goods entrusted to the carrier were gutted by fire during transport. The cause of fire was attributed to sparks emitted at the time of tightening of consignment by CS(OS) No. 1468/2001 Page 10 of 23 nylon ropes at the octroi post. It was held by a Division Bench of High Court that if the fire broke out due to some unknown cause or due to the negligence of coolies, the transporter as the common carrier under Section 8 of the Carrier Act, was liable to pay for the loss of the damage to the consignee. In any case, driver of the vehicle in which the goods booked by plaintiff No.2 were neither being transported nor any other witness has been produced to prove the alleged theft. Hence, even the alleged theft of the goods does not stand established. The issue is decided against the defendant. 12. Issues No.2 and 5 These issues are inter-connected and can be conveniently decided together. „Exhibits PW-1/6 and PW- 1/7‟ are the Letters of Subrogation purporting to be executed by plaintiff No.2, Calcom Electronics Ltd. in favour of plaintiff No.1 National Insurance Company Ltd. Vide these documents, plaintiff No.2, on receipt of Rs.12,50,000/- from plaintiff No.1 in respect of loss/damage to it under Policy No.420602/175152/31.03.98 assigned, transferred and abandoned all its rights, title and interest in respect of the CS(OS) No. 1468/2001 Page 11 of 23 above mentioned policy. It also granted full power to plaintiff No.1 to use all lawful ways and means to recover the damages. Plaintiff No.1 was also authorized to sue in the name of plaintiff No.2 in any action or proceedings that it might bring in its own name or in the name of plaintiff No.2 in relation to the matter assigned, transferred and abandoned under these documents. It also agreed that any money collected from any person shall be the property of plaintiff No.1 and if the same is received by plaintiff No.2, it will be made over to plaintiff No.1. These documents have been proved by PW-1, Shri A.K. Goel, Assistant Manager of plaintiff No.1. The authenticity of these documents which have otherwise been attested by a Notary Public in New Delhi has been assailed by the defendant on the ground that the policy number mentioned in these documents is different from the policy number mentioned in the receipt „Exhibit PW-1/11‟ and also on the ground that according to PW-1 the Letter of Subrogation was executed in Rohtak, whereas they have been attested at New Delhi. I, however, find no merit in the contention. PW-1 did not have any personal knowledge as to the place where these documents were executed. He stated that he presumed that it must CS(OS) No. 1468/2001 Page 12 of 23 have been executed in the office of the plaintiff-Company in Rohtak, from where the policy had been taken. However, this presumption on the part of PW-1 cannot be preferred to the documents themselves. Plaintiff No.2 is a Company based in Delhi. The stamp papers on which the documents have been prepared were purchased from a stamp vendor in Delhi, as is evident from the stamp of the stamp vendor on the back side of the documents. The documents have been attested by a witness Mr. A.K. Dixit, who has given his address as B-23, Wazirpur Industrial Area, Delhi. They have been attested by a Notary Public at New Delhi. There is no indication in the documents that they were executed at Rohtak, though they are addressed to Rohtak Branch of National Insurance Company Ltd. Hence, there is no merit in the contention that the documents were executed at Rohtak and attested at New Delhi. „Exhibits PW-1/8 and PW-1/9‟ are the other two Letters of Subrogation purporting to be executed by plaintiff No.2 in favour of plaintiff No.1 in respect of Policy No.420602/21/99/96/00020/11-06-96. These documents also have been attested by a Notary Public at New Delhi. They also have been signed by Mr. A.K. Dixit who has CS(OS) No. 1468/2001 Page 13 of 23 signed `Exhibit PW-1/6 and PW-1/7‟ as a witness. The stamp paper for these documents have also been purchased from a stamp vendor in Delhi as is evident from the stamp of the stamp vendor on the back side of these documents. As regards the alleged discrepancy in the policy number, a bare perusal of the receipt `Exhibit PW-1/11‟ would show that the number 420602/21/99/0005/98 mentioned in this document is claim number and not the policy number. Therefore, there is no contradiction in the receipt and the Letters of Subrogation as regards the number of the policy to which these documents pertain. 13. In view of the Letters of Subrogation „Exhibits PW- 1/6 to PW-1/9‟, executed by plaintiff No.2 in favour of plaintiff No.1, it was competent for plaintiff No.1 to file this suit in the joint name of National Insurance Company Ltd. and Calcom Electronics Ltd. 14. „Exhibit PW-1/10‟ is the Power of Attorney purporting to be executed by plaintiff No.2, Calcom Electronics Ltd. in favour of plaintiff No.1, National Insurance Company Ltd. Vide this document, plaintiff No.1, was authorized to present any application before any authority or any person concerned for the claim arising CS(OS) No. 1468/2001 Page 14 of 23 under the policy mentioned in the document. Plaintiff No.1 was also authorized to file suit in Court of law against any concerned person for recovery of money for the claim on behalf of plaintiff No.2 and give a valid discharge and an effectual receipt. This document has been attested by a Notary Public at New Delhi on 6th March, 1999. 15. Since the Power of Attorney Ex. PW-1/10, purporting to be executed by plaintiff No. 2 in favour of plaintiff No. 1 has been attested by a Public Notary, there is a statutory presumption under Section 85 of Evidence Act that the Power of Attorney was executed by the person by whom it purports to have been executed and the person who executed the power of attorney was fully competent in this regard. In Jugraj Singh and Anr. Vs. Jaswant Singh and Ors., AIR 1971 SC 761, the Power of Attorney attested by a Public Notary was disputed on the ground that it did not show on its face that the Notary had satisfied himself about the identity of the executant. Supreme Court held that there was a presumption of regularity of official acts and that the Notary must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. In Rajesh Wadhwa vs. Sushma CS(OS) No. 1468/2001 Page 15 of 23 Govil, AIR 1989, Delhi 144, it was contended before this Court that till it is proved that the person who signed the said power of attorney was duly appointed attorney, the court cannot draw a presumption under Section 57 and 85 of the Evidence Act. Repelling the contention, it was held by this Court that the very purpose of drawing presumption under Sections 57 and 85 of the Evidence Act would be nullified if proof is to be had from the foreign country whether a particular person who had attested the document as a Notary Public of that country is in fact a duly appointed Notary or not. When a seal of the Notary is put on the document, Section 57 of the Evidence Act comes into play and a presumption can be raised regarding the genuineness of the seal of the said Notary, meaning thereby that the said document is presumed to have been attested by a competent Notary of that country. In Punjab National Bank vs. Khajan Singh, AIR 2004 Punjab and Haryana 282, the Power of Attorney in favour of a bank, which had been duly attested, was rejected by the learned District Judge on the ground that the presumption under Section 85 of Evidence Act was available to a particular class of Power of Attorneys described in the section, which was confined to its execution CS(OS) No. 1468/2001 Page 16 of 23 and authenticity alone. The High Court, however, rejected the view taken by the learned District Judge holding that absence of proof of resolution authorizing the executant to execute the Power of Attorney could not be sustained and a presumption in favour of the attorney would arise under Section 85 Act. Hence, in this case also the Court is required to draw the requisite statutory presumption that the power of attorney Ex. PW-1/10 was executed by plaintiff No.2 in favour of plaintiff No.1 and that the person who executed the Power of Attorney on behalf of plaintiff No. 2 was duly authorized in this behalf. 16. The authenticity of the Power of Attorney Ex. PW- 1/10 has been disputed by the defendant on the ground that it has been executive at Rohtak, but attested at New Delhi. I, however, find no merit in the objection. The Stamp Paper for this document was purchased from Delhi as is evident from the stamp of the stamp vendor Reeta Kashyap on the back side of the stamp paper. Plaintiff No. 2 has an office in New Delhi and not in Rohtak. There is a staturory presumption of a valid execution of this document. Therefore, it appears that though at the time this document was typed, the intention could be to get it executed at CS(OS) No. 1468/2001 Page 17 of 23 Rohtak, it was in fact executed at New Delhi as is evident from attestation by Notary Public at New Delhi on 06th March, 1999. Another important aspect in this regard is that plaintiff No. 2 has not come forward to file any suit against the defendant for recovery of compensation for the loss of the goods which it had booked with the defendant. Letters of Subrogation have also been executed by plaintiff No.2 in favour of plaintiff No. 1. The claim of plaintiff No. 2 has been settled by plaintiff No. 1 by paying a sum of Rs 3106425/- to it. Therefore, there can be no genuine dispute with respect to the authenticity of the Power of Attorney Ex. PW-1/10. 17. The learned counsel for the defendant has referred to the decision of the Supreme Court in Oberai Forwarding Agency vs. New India Assurance Company Limited, AIR 2000 Supreme Court, 855 where the Court referred to the following statement in the standard text book on Insurance Law by Mac. Gillivray Parkington (Seventh Edition). “1131. Difference between subrogation and assignment permit one party to enjoy the rights of another, but it is well- established that subrogation is not a CS(OS) No. 1468/2001 Page 18 of 23 species of assignment. Rights of subrogation vest by operation of law rather than as the product of express agreement. Whereas rights of subrogation can be enjoyed by the insurer as soon as payment is made, an assignment requires an agreement that the rights of the assured be assigned to the insurer. The insurer cannot require the assured to assign to him his rights against third parties as a condition of payment unless there is a special clause in the policy obliging the assured to do so. This distinction is of some importance, since in certain circumstances an insurer might prefer to take an assignment of an assured‟s rights rather than rely upon his rights of subrogation. If, for example, there was any prospect of the insured being able to recover more than his actual loss from a third party, an insurer, who had taken an assignment of the assured‟s rights, would be able to recover the extra money for himself whereas an insurer who was confined to rights of subrogation would have to allow the assured to retain the excess. 1132. Another distinction lies in the procedure of enforcing the rights acquired by virtue of the two doctrines. An insurer exercising rights of subrogation against third parties must do so in the name of the assured. An insurer who has taken a legal assignment of his assured‟s rights under statute should proceed in his own name..” 18. The learned counsel has also referred to Gujarath Andhra Road Carriers Transport Contractors and ors. vs. United India Insurance Company Ltd. AIR 2006, Andhra CS(OS) No. 1468/2001 Page 19 of 23 Pradesh, 401 where the aforesaid statement in the book by Mac Gillivray Parkington was extracted. These judgments are of no help to the defendant since the insured has also been joined as plaintiff No.2 in the suit, though the Letters of Subrogation executed by plaintiff No. 2 in favour of plaintiff No. 1 also stipulate assignment and transfer of the actionable rights, title and interest of plaintiff No.2 to plaintiff No.1. However, the legal proposition in this regard has recently been settled as under by a Constitution Bench of Supreme Court in Economic Transport Organization vs.