BRIJ MOHAN GUPTA Vs. ORIENTAL INSURANCE COMPANY

JUDGEMENT

(1.) This First Appeal under Section 96 of CPC has been filed against the judgment and decree dated 1st May, 2002 passed by Third Additional District Judge, Morena in Civil Suit No.68-A of 2000.

(2.) The necessary facts for the disposal of the present appeal in short are that the respondent No.1 had filed a civil suit against the appellant for recovery of Rs.47,061.46 /-+ interest of Rs.7,050/-, total Rs.54,111.46/- . It is the case of the respondent No.1 that the respondent No.1 is a Company registered under the Companies Act and is carrying on its business in the name and style of ''Oriental Insurance Company Limited'' and its Regional Office is situated at Asif Ali Road, New Delhi. The Company has its Divisional Office at Gwalior and the District Office situated at Morena falls within the territorial jurisdiction of Divisional Office, Gwalior and accordingly, the Senior Divisional Manager has been authorized and is competent to file the suit on behalf of Oriental Insurance Company Limited. It is the case of the respondent No.1 that the appellant Brij Mohan Gupta is the registered owner of truck bearing registration No.MNA415, which is a goods carriage and is used for transporting the goods from one place to another. If the transporter fails to deliver the goods at the destination, then the owner and the driver of the truck are liable to pay the damages to the consignor and if the goods are insured, then the Insurance Company is liable to pay the damages. It was further pleaded that as the defendants No.1 and 2 have not informed that whether they are having any Insurance Policy in their favour or not, therefore, the suit is being filed against them only. It was further pleaded that the defendant No.3 is the New Sangram Transport Service, who had arranged for transporting the goods and therefore, it is also responsible for transportation of goods. It was further pleaded that M/s. Goyal Industries, Old Mill Area Road, Morena (proforma defendant No.4) had entered into an insurance agreement with the plaintiff/ respondent No.1, that since they are in the business of manufacturing of oil and they are required to transport the final product by Railways as well as by goods carriage and it is their duty to transport the goods in a secured manner, accordingly, an insurance agreement dated 06-04-1987 was executed with a condition that whenever the defendant No.4 would transport/ dispatch the manufactured oil in the name and style of Tansen Brand Oil, then its information in advance shall be given to the respondent No.1/plaintiff and the respondent No.1 would insure the said goods till it reaches the destination. It was further pleaded that in case, if the goods are destroyed, stolen or damaged because of an accident, then the Insurance Company would be responsible to assess the damages and to pay the cost of said damages to the Insured and the Insured would give a letter of subrogation and the Insurance Company would be entitled to recover the damages paid to the Insured from the concerning person or the concerning Insurance Company. Such type of Insurance is known as Marine Insurance and is governed by provisions of the Carriers Act. It was further pleaded that on 18-03-1988 M/s. Goyal Industries, had dispatched 640 containers of Tansen Brand Mustard Oil. The said consignment was sent through the truck of the appellant. The total cost of the goods was Rs.1,96,800/-. The fare for transporting the oil was fixed at Rs.4,515/-, which was payable after the goods reaches the destination. It was also agreed upon between the respondent No.3 (Transporter) and the respondent No.4 (Insured) that in case, the goods do not reach to the destination, then the defendants No.1 to 3 would pay the cost of damaged or stolen goods to the defendant No.4 (Insured). It was further pleaded that as per the provisions of Section 8 of Carriers Act, the defendants No.1 to 3 were under legal obligation to pay the cost of theft or damage to the defendant No.4. On 18/03/1988, 640 containers of oil worth Rs.1,96,800/- were loaded on the truck bearing registration No.MNA 415 belonging to the defendant No.1. The entire goods were handed over by the defendant No.4 (consignor) to the defendants No.1 to 3 after giving full details of the same along with the bilti and bills. The defendants No.2 and 3 had prepared a bilti on behalf of the defendant No.1 and the same was handed over to the defendant No.4. The information with regard to transportation of goods was given to the Insurance Company on the very same day, as a result of which the goods belonging to the defendant No.4 got insured as per the Marine Insurance Policy. On 18/03/1988, the truck started for its destination but it met with an accident near Kanpur. The accident took place because of rash and negligent driving of the driver, as a result of which 228 containers of oil were completely damaged, whereas 412 containers of oil were damaged. The defendants immediately went to the place of accident and at that time, the driver of the truck as well as his associate employees were present on the spot. Damage was assessed by the defendants. The defendant No.3 had admitted that the loss to the tune of Rs.60,000/- has been caused and accordingly, loss certificate dated 28-03-1988 to the tune of Rs. 60,000/- was also given by the owner of defendant No.3 to the defendant No.4. Accordingly, the defendant No.4 claimed Rs.55,333.86/- from the respondent No.1/ plaintiff. The assessment was got done by the Insurance Company and it was found that the defendant No.4 had suffered a loss of Rs.55,633.86/- and the loss of damage to the containers was assessed at Rs.4,120/- and accordingly, total loss of Rs.55,633.86/- was assessed by the Insurance Company. Fee of Rs.1,106/ was paid by the Insurance Company to the surveyor. Thereafter, the plaintiff/ respondent No.1 after revising the total loss, paid Rs.45,955/- to defendant No.4 on 13/06/1988 and fee of Rs.1,106/- was paid to the surveyor. As the letter of subrogation was given by defendant No.4, the defendant No.4 was entitled to recover this amount from the defendant Nos.1 to 3 and accordingly, the plaintiff/respondent No.1 is entitled to recover the same from the defendants No.1 to 3. A demand notice was issued for payment of amount of Rs.55,633.86/- which was served on the defendants No.1 to 3. However, the amount has not been paid. The defendant No.4 was made a formal defendant because in the case if any contrary stand is taken by the defendant no.4, then the amount of compensation paid by the Insurance Company, can be recovered from the defendant No.4 also. It was further pleaded that the plaintiff/ respondent No.1 is entitled for recovery of Rs.45,955/- [loss paid to the defendant No.4] and fee of Rs.1,106/- paid to the surveyor and thus, the suit was filed for recovery of Rs.54,111.46/-.

(3.) The defendants No.1 and 2 filed their written statements and denied that the Senior Divisional Manager is competent to file the suit. It was admitted that the defendant No.1 is the owner of the truck bearing registration No.MNA 415 and is in the business of transportation. It was further pleaded that if for any reason the consignment does not reach to its destination, then the entire liability is of the Transport Agency and if the goods are insured, then the liability to pay compensation is of the Insurance Company and not of the owner of the truck because the agreement of the insurance is between the owner of the goods and the Insurance Company of the Transporter. There is no privity of contract between the owner of goods and owner of the truck. It was further pleaded that the defendants No.1 to 2 are the owners and the driver of the truck, and are not liable to pay the damages.