NEW INDIA ASSURANCE COMPANY LIMITED Vs. VENKATACHALAPURAM SMALL MATHC PRODUCERS SERVICE INDUSTRIAL CO-OPERATIVE SOCIETY LTD.

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment in O.S.No.243 of 1990 on the file of the Court of Subordinate Judge, Srivilliputtur. The 3rd defendant in the suit is the appellant herein.

(2.) THE averments in the plaint sans irrelevant particulars are as follows: - The first plaintiff is a registered society, represented through its power -of -attorney agent, the second plaintiff. The second plaintiff is a registered company. The first plaintiff during the course of their business had entrusted 1273 bundles of safety matches Invoiced at RS.92,572/ - as per invoice No.583 dated 31.10.1987 and 200 bundles of safety matches invoiced at Rs.13,600/ - as per invoice No.586 dated 2.11.1987 to the 1st defendant for safe carriage by road from Sattur to Delhi intended to be delivered to the named consignee one M/s. N.C. Agarwal and Sons, Delhi. The defendant in their regular course of business as a common carrier had duly accepted the aforesaid consignments for carriage. Having accepted the aforesaid consignments the defendant/common carrier subsequently consigned the aforesaid consignments through the vehicle under their control bearing registration number TCM.6363 from Sattur. The aforesaid vehicle is belonging to the 2nd defendant. The 3rd defendant is the Insurance Company with whom the said vehicle has been insured by the 2nd defendant under carriers legal liability policy in Policy No.5205400392 dated 24.06.1987 for the period from 24.6.1987 to 23.6.1988. The 1st plaintiff had duly insured the above consignments with the 2nd plaintiff under Marine Insurance Open Policy under Policy No.090804/543/83/1/00063/87, to indemnify and compensate the 1st plaintiff against any loan or damage caused to the consignment during transit. Thus the 1st plaintiff is the insured and the 2nd plaintiff is the insurer. Subsequently, the plaintiffs came to understand through the defendant/common carrier that the vehicle which carried the consignment while proceeding involved in an accident at Kondaibari Ghat on Dhule Surat Road by colliding with the on coming vehicle and then capsized and subsequently caught fire on 8.11.1987. Due to the fire the entire consignments consigned by the 1st plaintiff along with other consignments completely gutted. Immediately the 2nd plaintiff -Insurance Company was informed by the first plaintiff for further action, who in turn had deputed a licence surveyor and loss assessor by name Mr. Milind Varma along with the 1st plaintiff -s representative visited the accident spot and assessed the loss a total one on 15.11.1987. The driver of the common carrier was also charge sheeted by the police authorities, who had subsequently pleaded guilty and paid a fine. The damage has been resulted only due to the carelessness and negligence and misconduct on the part of the defendant/common carrier and it -s men and agent. The first defendant/common carrier had breached the statutory obligation arising under the provisions of the Carriers Act, who is expected to safely carry and deliver the consignment without any loss or damage caused to the consignment. Therefore, the 1st plaintiff on 23.12.1987 had issued a claim notice to the defendant/common carrier and the same had been duly acknowledged by the defendant and also by it -s manager on 24.12.1987 and 28.12.1987. In the meanwhile the 1st defendant/common carrier has issued a damage certificate on 26.12.1987 confirming the total loss caused to the consignment. The common carriers (D.1 and D.2) even after the receipt of the suit notice had not chosen to send any reply nor they come forward to settle the claim. Hence, the first plaintiff referred it -s claim to the second plaintiff - Insurance Company in pursuance of the contract of insurance for indemnification. The second plaint in turn had settled the claim at Rs.1,15,819/ - being the value of the damaged consignments plus expenses and profit loss. Having settled the claim the 1st plaintiff has executed a letter of subrogation and special power -of -attorney dated 18.3.1988 in favour of the 2nd plaintiff. Apart from the payment of the said sum the 2nd plaintiff has got statutorily subrogated into the rights of the 1st plaintiff and now the entire claim is only due to the 2nd plaintiff. To avoid any technical objection the 1st plaintiff has been added as a party to this proceedings. The second defendant being the owner of the vehicle and whose custody the damage has been resulted to the consignment and the 3rd defendant being the Insurance Company with whom the aforesaid vehicles has been insured under the carriers legal liability policy all the defendant are liable to pay the suit claim. Hence, the suit.

(3.) THE defendants 1 and 2 have filed a joint written statement contending that the second defendant -s lorry Registration No.TCM 6363 is insured with the 3rd defendant under carrier -s legal liability policy. The accident had not occurred due to the negligence and wilful misconduct on the part of the defendant/common carrier. The plaintiffs have to prove that they have sustained a loss to the tune of Rs.1,15,819/ -. The defendant -s vehicle is duly insured with the D.3. Hence, in any event, the 3rd defendant is liable to pay damages to the plaintiffs if at all they are entitled to any. Hence, the suit is liable to be dismissed as against the defendants 1 and 2.