Civil Writ Petition No.5600 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5600 of 2011 Date of Decision:29.03.2011 M/s Om Logistics Ltd. ....petitioner Versus Permanent Lok Adalat Utility Services, Ludhiana & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUAMR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Neeraj Khanna, Advocate for the petitioner *** RAKESH KUMAR GARG, J.(ORAL): The petitioner transport Company seeks to quash the impugned order dated 27.08.2010(Annexure P-1) passed by respondent No.1, whereby it has been directed to pay a sum of ` 43072/- along with interest @9% per annum to respondent No.2 i.e.United India Insurance Company Ltd. As per the averments made, goods were sent to respondent No.3 through the petitioner who was engaged for the delivery of the consignment despatched on 30.07.2005 from Bhiwadi,Rajasthan to Tripur, Tamilnadu. The consignment so despatched was admittedly damaged. The goods so despatched were insured with respondent No.2. Respondent No.3 raised the claim before respondent No.2, who after making an investigation through a surveyor paid claim of ` 43072/- to respondent No.3. Thereafter, respondent No.2 filed the claim petition before respondent No.1 on the basis of letter of subrogation along with the special power of attorney executed by respondent No.3 in favour of respondent No.2. Civil Writ Petition No.5600 of 2011 2 The petitioner-Company contested the aforesaid claim submitting that there was no negligence on their part and the goods were in damaged condition when packed by respondent No.3, itself and the respondent No.1 had no jurisdiction. However, the claim petition filed by respondent No.2 was allowed holding that the goods were damaged during the transportation and the respondent No.1 had the jurisdiction. Challenging the impugned order, learned counsel for the petitioner has vehemently argued that there was no contract of insurance between respondent No.2 and the petitioner and thus respondent No.2 had no locus standi to file any claim against the petitioner and the same was liable to be dismissed. It is useful to refer to a judgement dated 08.02.2011 passed in CWP No.672 of 2011 titled as M/s Om Logistics Ltd.Vs.Permanent Lok Adalat & Ors., at this stage, as the question raised before this Court has been squarely answered by this Court in the said judgement. The relevant paras read as follows: “Having heard learned counsel for the petitioner and on perusal of the record, I do not find any ground to interfere with the impugned award. The fact that the petitioner – Transport Company was engaged to deliver the consignment from Ludhiana to Pune is not in dispute nor the fact that the consignment was duly insured with respondent No. 2 Insurance Company is questioned. Similarly, the fact that the truck loaded with the consignment met with an accident on 21.03.2007 while in the State of Maharashtra and 160 packages of the consignment were damaged are also candidly admitted by the petitioner. No evidence whatsoever was required to be led by the parties in respect of these admitted facts. The solitary question is as to Civil Writ Petition No.5600 of 2011 3 whether or not the petitioner in terms of the binding contract between the parties is liable to pay the damages, is a question of law to be answered with reference to Sections 6 and 8 of the Carriers Act, 1865. These provisions of the Carriers Act read as follows:- “6. In respect of what property liability of carrier not limited or affected by public notice:- The liability of any common carrier for the loss or damage to any property including container, pallet or similar article of transport used to consolidate goods delivered to him to be carried, not being of the description contained in the schedule to this Act, shall not be deemed to be limited or affected by any public notice. 8.Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent,- Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property including container, pallet or similar article of transport used to consolidate goods delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of Section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants”. It could not be denied that there is no contract Civil Writ Petition No.5600 of 2011 4 between the parties limiting the liability of the petitioner Company under the exception to Section 6 of the Carriers Act. Similarly, Section 9 of the Carriers Act absolves respondent No. 3 Company to prove that the damage to the consignment was caused due to 'negligence' or 'criminal act' of the petitioner Company. Respondent No. 3 was required to prove the actual loss, if any, suffered by it and it was for the petitioner to prove otherwise. The fact of matter is that 160 packages of the consignment were admittedly damaged and this fact stands proved from the report of the Loss Assessor and Surveyor stationed at Pune. The Insurance Company paid `1,13,100/- to respondent No. 3 Company as per the said report. That being so and the petitioner having failed to absolve itself from the statutory obligation under Section 6 and 9 of the Carriers Act, no case to interfere with the impugned award is made out.” Learned counsel for the petitioner could not distinguish the aforesaid judgement. In view of the aforesaid settled proposition of law, I find no merit in this petition. Dismissed. (RAKESH KUMAR GARG) JUDGE 29.03.2011 neenu