ORIENTAL INSURANCE COMPANY LIMITED, (NOW CHHATTISG Vs. TRANSPORT CORPORATION OF INDIA LIMITED, M P (NOW C

JUDGEMENT

(1.) This appeal has been preferred under Section 96 of the Code of Civil Procedure against the judgment and decree dated 29.11.1997 passed in Civil Suit No.17-B of 1993 by the Additional District Judge, Korba, whereby the Learned Additional District Judge has dismissed the suit of the Plaintiff/Appellant/Oriental Insurance Company Limited.

(2.) Brief facts of the case are that Bharat Aluminium Company/Defendant No.2/Respondent No.2 had dispatched 31 bundles of aluminium valued at Rs.2,03,897/- to consignee M/s. Ramesh Metal Syndicate through Defendant No.1/Respondent No.1 M/s. Transport Corporation of India Limited (the Carrier) under invoice No.10/1057 dated 10.12.1990 and insurance with the Plaintiff/Appellant/Oriental Insurance Company Limited. The said consignment was dispatched on 9/10-12-1990 which was delivered to consignee M/s. Ramesh Metal Syndicate on 15.12.1990 in badly damaged condition. 23 packets were found in damaged condition. As per damage certificate No.BBX/168 dated 22.3.1991, the value of the damaged material was worth Rs.25,925/-. Consignee lodged a claim of Rs.25,925.52 on Defendant/Respondent No.1 (the Carrier) by serving a notice under Section 10 of the Carriers Act, 1865 (henceforth "the Act") dated 6.3.1991, which was received on 8.3.1991. A copy of the said notice was also served to the Appellant/Plaintiff. The Appellant/Plaintiff as the insurer, after obtaining the right to recover the claim from Respondent No.1 (the Carrier), has settled the claim of Respondent No.2 upto the value of loss. The damage was caused due to gross negligence, carelessness and misconduct by Respondent No.1 (the Carrier), who is liable to pay the claim due to the above stated failure. Therefore, the suit was preferred by the Appellant/Insurance Company.

(3.) Respondent No.1 (the Carrier), in its written statement, pleaded that goods was dispatched at the owner's risk. It had not served a notice under Section 10 of the Act and objected the territorial jurisdiction of the Court also.