NATIONAL INSURANCE CO LTD Vs. MUKESH TEMPO SERVICE

JUDGEMENT

(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 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 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.

(3.) The following issues were framed on the pleadings of the parties:-