M/S Transway Cargo Lifters P. Ltd v. National Insurance Co. Ltd. &

RAJIV SAHAI ENDLAW, J. APRIL 19, 2016

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*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 19th April, 2016 + RFA No.729/2005 M/S TRANSWAY CARGO LIFTERS PVT. LTD. ..... Appellant Through: Mr. Rajiv Talwar, Mr. Sanjay Sarin, Ms. Gagandeep Kaur and Mr. Nipu Patiri, Advs. Versus NATIONAL INSURANCE CO. LTD. & ANR. ..... Respondents Through: Ms. Hetu Arora Sethi and Mr. Shravan Sahny, Advs. for R-1. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 30th July, 2005 of the Court of the Additional District Judge (ADJ), Delhi decreeing Suit No.331/03 filed by the respondents for recovery of Rs.19,81,280 with costs and interest at 9% per annum from 29th March, 2000 till realization against the appellant. 2. Notice of the appeal was issued and subject to the appellant depositing 50% of the decretal amount execution was stayed. The appeal on 6th October, 2006 was admitted for hearing and the maturity value of the fixed deposited created of the amount deposited by the appellant ordered to be released in favour of the respondent no.1 / plaintiff subject to ultimate result of the appeal. The appeal, on 5th November, 2009 was dismissed in default of appearance of the appellant but notice of the application made by the appellant for restoration of the appeal was issued and remained pending for service of the respondent no.2 M/s. BPL Display Devices Ltd. till 15th December, 2014 when the application was dismissed in default. Again restoration was applied for and vide order dated 10th August, 2015, observing that the respondent no.2 was reported to have been wound up and none had appeared for the Official Liquidator inspite of notice, the appeal restored to its original position and Trial Court record requisitioned. The counsels were heard on 17th September, 2015 and judgment reserved. 3. The two respondents instituted the suit from which this appeal arises pleading (i) that the respondent no.2 / plaintiff had entrusted 28 pallets containing 560 colour picture tubes to the appellant / defendant, a common carrier/transporter, for transportation Ex- Sahibabad to Bangalore and the appellant / defendant issued a goods receipt dated 21st March, 2000 on collection of Rs.20,000/- as freight charges and the goods were loaded in truck No.HR-38-0495 on 21st March, 2000; (ii) the said consignment was insured by the respondent no.2 / plaintiff with the respondent no.1 / plaintiff against all transit risks; (iii) that due to culpable negligence and misconduct on the part of the appellant/its employees, the vehicle never reached its booked destination (Bangalore) and disappeared enroute; (iv) the appellant / defendant informed the respondent No.2/plaintiff of having lodged FIR No.218 dated 11th April, 2000 of PS Faridabad with respect to disappearance of the truck and that the Faridabad Police had on 12th June, 2000 reported that neither the goods were recovered nor accused arrested and case filed as untraced; (v) however according to detailed investigations conducted by the surveyor appointed by the respondent no.1/plaintiff, the truck was being driven by driver-cum-owner of the truck Mr. Jasbir Singh who disappeared near Kishangarh, Rajasthan on 24th March, 2000 and till then neither the vehicle nor consignment had been traced and that the truck was last seen near Nepal border; (vi) that the respondent no.2 / plaintiff within six months of the date of booking served notice under Section 10 of the Carriers Act claiming compensation of Rs.19,81,280/- from the appellant / defendant for the goods lost and in response thereto the appellant / defendant issued Certificate dated 31st August, 2000 confirming that the consignment had been lost in transit; (vii) that the respondent no.2 / plaintiff preferred a claim against the respondent no.1 / plaintiff under the policy and the respondent no.1 / plaintiff after processing the claim for damages settled the claim of the respondent no