NATIOANL INSURANCE CO LGTD Vs. PAHALAD TEMPO SERVICE

JUDGEMENT

(1.) PLAINTIFFS have made this application under Order 12 Rule 6 CPC for passing a decree on the basis of admissions made by the defendant.

(2.) BRIEF facts relevant for deciding this application are that the plaintiffs filed a suit for recovery of Rs. 27,81,519/- from the defendants under Section 8 of the Carriers Act, 1865. Plaintiff No. 1 is the Insurance Company and plaintiff No. 2 is the party who booked its goods with defendant No. 1 through defendant No. 2. The goods were to be transported by defendant No. 1 from IGI Airport to Okhla Industrial Area warehouse/godown of plaintiff no. 2. The consignment was loaded in the truck of defendant No. 1 bearing registration No. HR-38d-3370. The truck arrived at the warehouse of plaintiff No. 2 at about 2. 30 a. m. in the night of 2. 11. 2003. As per the version of driver of plaintiff No. 2, in the FIR lodged by him, due to non-availability of plaintiff No. 2's labour, he parked the loaded truck containing 43 rolls of cotton fabric near the premises of factory of plaintiff No. 2 and he went to sleep in the front cabin of the truck. Helper of the truck slept on the loaded goods itself. Thereafter, he heard some noise and came down to see and found that 2-3 persons had lodged a TATA 407 behind the truck and after cutting the knots of rope (rassa) they were removing the cotton rolls from the truck. On seeing this, he made noise, the guard of plaintiff No. 2 company also came to the gate and on hearing noise, the thieves ran away along with the stolen material and their tempo. On checking, it was found that 11 out of 43 cotton fabric rolls had been stolen. He gave a telephone call to his owner and also called 100. FIR No. 581/03 at PS Okhla Industrial Area was lodged of this theft under Section 379 of IPC on the basis of statement of the truck driver. Remaining cotton rolls were delivered to plaintiff No. 2. Plaintiff No. 2 obtained a shortage certificate from defendant No. 1 showing that the delivery given to plaintiff No. 2 was short of 11 cotton rolls. The shortage certificate is dated 22. 12. 2003. This shortage certificate shows that the 11 short delivered boxes contained 10592. 60 yards of cotton printed fabric. The shortage certificate also shows that the goods were transported by defendant no. 1 vide GR No. 1652 dated 1. 11. 2003. Since plaintiff No. 2 had insured its goods with plaintiff No. 1, plaintiff No. 2 lodged a claim with plaintiff no. 1. A survey was conducted by plaintiff No. 1 and after verifying that the goods were short supplied and had been stolen, the claim of plaintiff No. 2 for a sum of Rs. 19,50,100/- and Rs. 8,715/- towards surveyor charges was approved by the plaintiff No. 1.

(3.) PLAINTIFF No. 2, who was also entitled to claim loss of short supplied material from defendant No. 1 had served a notice dated 6. 1. 2004 on defendant No. 1 calling upon defendant No. 1 to pay sum of Rs. 19,50,100/-being the loss suffered by plaintiff No. 2. It was specifically stated in the notice that this formal claim was being lodged with the defendant No. 1 because of short delivery of material in view of short delivery certificate issued by defendant No. 1. After receiving insurance amount from plaintiff no. 1, plaintiff No. 2 executed a special power of attorney in favour of plaintiff no. 1 giving authority to plaintiff No. 1 to recover this amount from defendant No. 1 and to receive this amount. Plaintiff No. 2 also issued subrogation/transfer of accountable rights and interests against defendant no. 1 to plaintiff No. 1.