Syal Auto Carriers Pvt Ltd v. National Insurance Co Ltd & Anr

VALMIKILMEHTA,J(ORAL) These two Regular First Appeals under Seôtion 96 of Code of Civil Proedure, 1908 (CPC) are being disposed of by this common judgment as they involve similar issues and facts. For the sake lof convenience, reference is being made to the facts in RFA No.518/2010. The facts of the case are that the appellant/defendant is 'a transporter/carrier. Plaintiff No.2 booked a consignment of 55 numbers bf Passion Plus motorcycles vide invoice No.25 15003357 dated 6.5.2005 with the appellant/defendant for being .transported from Gurgaon to Pune. The appellant/defendant accepted the contract of transportation and issued consignment receipt dated 6.5.2005. The consignment which was being carried from Gurgaon to Pune in truck No.HR-38L-6577 niei with an accident whereby the consignment was extensi\ely damaged. An FIR was S lodged in the police station Thana Cantt, District Guna, M.P. on 8.5.200. The plaintiff No.2/respondent No.2 issued a notice under Section 10 of the Carriers Act, 1865 upon the appellant/d e fend ant on 21.6.2005 calling upoh the. appellant/defendant to reimbuf.se the loss caused to the plaintiff No.2/respondent No.2 of Z 6,66,744.93/-. The appellant/defendart acknowledged the loss being caused and the accident by issuing the damage .1 - -- certificate dated 10.7.2005. Respondent No.1/insurance company had insured the consignment and after making the payment of the claim of the respondent No.2/plaintiff No.2, it got issued in its favour a power of attorney and a letter of subrogation, and thereafter filed the subject suit for recovery against the appellant/defendant/transporter/carrier. The appellant/defendant contested the suit and denied its libi1ity. It.was pleaded that there was no privity of contract with the repondn Nof/plaintiff No.1 and that the suit was bad in terms of Sections 8 and. 10 of th Carriers Act, 1865; Authority to file the sull and the territorial jurisdiction of the Courtwas also challenged.

¶4. . . The trial Couit has decreed the sui.t,by ho] ding that the I oss was caused, by the accident and which was proved by the damage certificatk Ex.PW1/10. The notice wider the Carriers Act, 1865 was found to be sérvd which was Ex.PW1/8 and the postal receipt with respect to which is Ex.PW1/9 The invoice by which the transportation was booked is EcPW1/5. The police complaint and FIR was proved as Ex.PW1/7. Tle letter of subrogation and the power of attorney in favour ofthe respondert No.1/plaintiff No.1 were .pro.red as FxYW1/4 and Ex.PW 1/3 respectiyel'. The respondent No. 1./plaintiff No.1 proved .a total of 13 documents . which If were exhibited as Ex.PW'l/i fb.Ex.PW1/1I The survey report with reset to the loss was proved and, exhibited as 1 E.PW2/1 through the officer of the Surveyors Sh Rajiv Pal Singh Khurana, Direcioi of the Surveyor Company Mis. G.P.S. Migiani Surveyors Pvt. Ltd, In view of the aforesaid facts, the trial Court came to the conclusion that the appellant/defendant was guilty of éausing loss 'as a carrier and therefore the respondent 'No.. i/piaintiff No.1 was entitled to reimburse The loss caused as the same was paid by the plaintiff No. 1/respondent No.1 to the plaintiff no., the insured. ,

¶5Learned counsel for the appellant/defendant argued before this Court the fol1oving points:- '

(i) Plaintiff No.2, the insured company, did not appear in the triJ Court and since the suit was only contested by the respondent No. 1/plaintiff • ' No.1, the suit was liable 'o be dismissed inasmuch as, the letter of subrogation and the power of attorney were not proved and wrongly exhibited. 'It was argued that the 'appellant/defendant had taken objection to exhibition of the letter of subrogation and power of attor,ny which were exhibited as Ex.PW1/4 and Ex.PWI,'3 and therefore it should be beld that the suit was not validly instituted. ' ' : '

(ii) With respect to the amount of loss caused it was argued that the survey report did not properly prove the amount of loss inasmuch as the survey report contained as anneXufes ,thb details of the bills;' hich details. m'ntioned were not of the plaintiff No 2/respondent No 2 but were of the dealer of plaintiff No.2/respondent No.2 0 ' It was also argued that, the company which, gave . the survey report was not duly licenced to condu6tthe. survey.. • . 6i ' I am afraid none of the arguments as advanced on behalf of the • appe1lnt has any substance. Firstly, -the seciai power of :attorneyand the letter of subrogation were exhibited in the evidence by way of affidavit of PW1 as Ex.PWI/3 and Ex.PW1/4, however, before commencement of the crossexamination, this objection of incolTect exhibitipn of the power of attorney and the letter of subrogation Was not raised. It is necessary for such objection to be raised at an appropriate time, because if such objection 4 is raised, as to the mode of proof of documents, the affected person can take necessary steps to get the documents proved in a proper.mannr. Once thêie is no objection to the exhibition of documents, then, subsequently the ehibition of such documnts cannot be challenged vide R. VE Venkalach,ala Gounder. v. '4ruirnigu. isesaraswarni & V.P. Temple & . ' . Page 5 .of 9 Anrs. (2003) 8 SCC 752. In the present, case, if the appellant/defendant had before the commencement of the cross-examination raised this objection, then, the respondent No.1/plaintiff No.1 would not have closed the affirmative evidence but would have led other evidence to ensure proper exhibition of the documents, however, since the appel1ant/defendat did not object before the commencement of cross-examination, the respondent • No 1/plaintiff No 1 allowed cross-examination to begin without seeking 'to lead any further evidence for exhibition of the special power of attorney and the letter of subrogation. In any case, 'this argument that the power of attorney and the letter of subrogation are not proved and the subrogation is therefore not valid is completely answered by a recent Constitution Bench judgment of the Supreme 'Court in the case of Economic Transport Organization, Delhi Vs. S Charan Spinning Mills Private Limited and Anr. (2010) 4 SCC 114. in this Constitution Bench. judgment of Economic Trampórt Organization (supra), the Supreme Court has held that the right of subrogation is an equitable right of subrogation and it arises automatically by operation of lw without any need for evidence in writing once the insurer settles the claim of the insured. On such settlement, the insurer, then, steps into the shoes of the - . insured and can exercise rights against, the transporter/wrong-doer/carrir. The rights of subrogation have been equated basically to the right of rdstitution. Once an insurer pays the amount of loss to the insured under the insurance policy, then, the insurance company is entitled to the rights and remedies of the insured against the third party who causes the loss, and which rights of the insured against the third party stand transferred and vsted in the insurer/plaintiff No. 1/respondent No.1. I therefore.. hold that it cannot be held that the suit was not validly instituted in the absence of alleged-proof of power of attorney and the letter of subrogation execUted by the plaintiff No.2/respondent No.2 in • favouiof plaintiff No. 1/resond.cnt No.1.

¶7So far as the argument that the survey report does not properly assess the loss as the details of the bills with respect to the damages are not - t of:.plaintiff -No.2 but are said to be of the dealer of the plaintiff. No.2/respondent No.2 viz. M/s. Sehgal Autoriders P't. Ltd.-, Puhe, this argument is without substance inasmuch as the survey report in detail attaches the photographs, with respect to the damages to the motor cycles and also is bàsèd on the actual spot inspection of the damaged-motor cycles. So far as the damage is concerned, t. cannot be disputed that damage was - I caused by the accident of the truck of the appellant/defendant inasmuch as the appellant/defendant itself had issued the damage certificate dated

10.7.2005, Ex.PW1/10. On the aspect of value of the loss, it is not open to the appellant/defendant to argue with respect to alleged incorrect assessment because a mere denial and dispute with regard to valuation of the damages, cannot take the appellant/defendant any further because it was incumbnt I' 1; upon the appellant/defe i ndant to state fthe loss were not caused as stated in the survey report, then, what were the actual losses. After all, the 'loss was - caused when the consignment was in the custody and control of the appellant/defendant, and therefore the appellant/defendant could very well have got assessed the loss itself. A negative defence of a simple denial cannot be a defence/denial in the eyes of law. The survey report therefore rightly assessed the loss. I also do not find any strength in the argument raised on behalf of the appellant that the Surveyors were not properly licenced inasmuch as the licence number is duly given in each page of the survey report which is on the letter head of the surveyor. Once again, a mere denial or a suggestion of there not existing a licence, is in fact a defence/stand of desperation ahd futility, which cannot be positively looked at. RFANos.518/'2010 & 523/2010 /7

¶8In view of the above, there isno merit in the appeals, which are accordingly dismissed, leaving the parties to bear their own costs. VALMIKI J. MEHTA, J DECEMBER 13, 2011 Ne 1'

* IN THE HIGH COURT OF DELHI AT NEW DELHI 13 December, 2011 +1 RFANo518t2010 •SYAL AUTO CARRIERS (P) LTD. . .. . Appellant Through: Mr. Sukhbir Singh, Advocate. versus NATIONAL INSURANCE CO. LTD. & ANR. Respondents • Through: •. RFA No.523/2010 SYAL AUTO CARRIERS. (P) LTD Appellant Through: Mr. Sukhbir Singh, Advocate. versus NATIONAL INSURANCE CO. LTD. & ANR. Respondents Through: CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter: or not? Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 1: /6 -i P.