ORIENTAL INSURANCE COMPANY LTD Vs. GANPATI CARGO MOVERS

JUDGEMENT

(1.) THIS is a suit for recovery of Rs.47,16,327/-. The plaintiff no.1 is an Insurance Company, whereas, plaintiff no.2 is a company registered under Companies Act. The plaintiff no.2 imported 5 refrigeration chillers from M/s Carriers China Ltd., China. The consignment containing two Chillers bearing nos. 64133 and 64135 after custom clearance was delivered to the defendant for carriage from ISD, Tuglakabad to job site at DLF Building-8, Phase-II, Gurgaon. The plaintiff no.2, later learnt that the truck/trailor, in which the Chillers were loaded, while negotiating a u-turn at an intersection at Pul Prahladpur, Badarpur, Delhi in the night intervening 24/25.8.2006, as a result both the Chillers loaded on the truck/trailor bearing no. HR-46-1485 fell on the road and were badly damaged. Those damaged Chillers were booked by the defendant with M/s Maple Logistics Pvt. Ltd. for their onward journey, in another truck/trailor bearing no.HR-37 B-4180.

(2.) THE plaintiff no.2 lodged a claim with the defendant demanding a sum of Rs.1.12 crores being the costs of the Chillers, which were damaged. THE goods which had damaged were covered under policy, which the plaintiff no.1 had issued to plaintiff no.2. THE plaintiff no.2, accordingly lodged a claim with plaintiff no.1. THE Surveyor appointed by plaintiff no.1 company after surveying the spot and carrying out detailed inspection of the damaged Chillers assessed the damage @ Rs.51,57,717/-. THE Surveyor also informed the plaintiff that the accident had occurred due to negligence of the driver who was not able to control the vehicle while negotiating the u-turn at Pul Prahladpur, Badarpur, Delhi. Since the total value of the goods was Rs.1.12 crores and the value of the damaged goods was assessed at Rs.51,57,717/-, the plaintiff no.1 paid a sum of Rs.47,16,327/- to the plaintiff no.2. THE plaintiff no.2 executed documents, as such Letter of Subrogation and Special Power of Attorney in favour of plaintiff no.1, which then became entitled to recover to the amount of the claim from the defendant. Since the defendant has failed to pay the aforesaid amount, it has been claimed in the present suit this suit.

(3.) THE testimony of PW2, Mr. Lokesh Batra would show that two Chillers, which plaintiff no.2 had imported from China were delivered to the defendant for being transported from ISD, Tuglakabad to job site at DLF Building-8, Phase-II, Gurgaon were loaded in truck/trailor bearing no.HR-46-1485, belonging to the defendant. His testimony also shows that the aforesaid Chillers were damaged when they were actually delivered at the site. THE case of the plaintiff is that after accident in which Chillers were damaged, the defendant sent the goods to the destination through M/s Maple Logistics Pvt. Ltd. Ex. PW1/8 is the copy of the Goods Receipt whereby the consignment was sent to construction site in Gurgaon. Since the consignment, which got damaged during transit was covered under the policy issued by plaintiff no.1 to plaintiff no.2, it was under the legal obligation to reimburse plaintiff no.2 for the loss caused to the goods which were damaged in the course of transit. THE original GR whereby the goods were booked by plaintiff no.2 with the defendant on 24.8.2006 has not been filed by the plaintiff. It has come in the affidavit of Mr. Lokesh Batra that the original lorry receipts meant for plaintiff no.2 was forcefully taken by the driver of the vehicle from the pocket of the official of plaintiff no.2 at the spot of accident, so as to destroy the evidence. Since the defendant has not come forward to contest the suit and not had even responded to the notice received from plaintiff no.2, I see no reason to disbelieve the assertion of the plaintiffs in this regard, and, accept that the aforesaid Goods Receipts was snatched by the driver of the vehicle and was destroyed at the place of the accident.