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XPS CARGO SERVICE, PANIPAT versus UNITED INDIA INSURANCE CO.LTD.,

High Court of Punjab and Haryana, Chandigarh

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XPS CARGO SERVICE, PANIPAT v. UNITED INDIA INSURANCE CO.LTD., - RSA-1800-2005 [2005] RD-P&H 26 (27 May 2005)

R.S.A.No.1800 of 2005

XPS Cargo Service, Panipat v. United India Insurance Co.Ltd., Chennai, and another.

Present:- Mr.Baljinder Singh, Advocate,

for the appellant.

-.-

Ashutosh Mohunta, J.

The defendant, who is a transporter, has filed this appeal to challenge the judgment and decree dated 1.4.2005 passed by the Additional District Judge, Panipat, affirming the judgment and decree dated 8.5.2004, whereby suit for recovery of Rs.1,48,917/- filed by the United India Insurance Company and the Indian Oil Corporation has been decreed in their favour.

The brief facts giving rise to this appeal are that the Indian Oil Corporation, Haldia, consigned two drums of antioxidant-HITEC-4540 weighing192.80 Kg. each, with the defendant-transporter, for being transported to its refinery unit at Panipat on 24.12.1999. The Indian Oil Corporation, plaintiff-respondent No.2, had taken an open insurance policy from the United India Insurance Co., plaintiff-respondent No.1, for Rs.5,00,00,000/- for carriage of all types of material, such as, chemical spares and accessories. The goods consigned to the defendant got damaged during transit due to jerks and mishandling. The Indian Oil Corporation (plaintiff No.2) laid claim with the Insurance Co. to indemnify the loss. The Insurance R.S.A.No.1800 of 2005

Company appointed M/s T.P.Singh & Co. as its surveyor to inspect the goods and assess the loss. The loss was assessed to be Rs.1,42,406/- as marine loss towards the costs of antioxidant contained in two drums, and a sum of Rs.5,461/- was assessed as freight charges. Thus, the total amount of damage came to Rs.1,47,867/-. The Insurance Company indemnified the loss suffered by the Indian Oil Corporation. Plaintiff No.2 executed a letter of subrogation and power of attorney in favour of plaintiff No.1, i.e., the Insurance Company. Thereafter the Insurance Company issued notice under Section 10 of the Carriers Act to the defendant calling upon it to reimburse the Insurance Company to the tune of Rs.1,47,867/-, which had been paid by it to plaintiff No.2 and also a sum of Rs.1,450/- as the fee of the surveyor. As the defendant did not reimburse the Insurance Co. the amount claimed by it, the present suit for recovery was filed. The suit was decreed in favour of the plaintiffs. The appeal filed by the defendant was dismissed by the Additional District Judge, Panipat. Now the defendant has filed this appeal to challenge the judgments and decrees passed by both the Courts below.

I have heard the learned counsel for the appellant and examined the case file.

The following question of law arises for consideration before this Court:- Whether or not the defendant is liable to reimburse the amount of damage suffered by plaintiff No.2 to the Insurance Company (plaintiff No.1), which the latter had indemnified the former?

It is the contention of the learned counsel for the appellant that there was no R.S.A.No.1800 of 2005

privity of contract between plaintiff No.1, i.e., the Insurance Company and the defendant. In the absence of any contract between the two, no valid decree could be passed in favour of the Insurance Company.

I do not find any merit in the contention raised by the learned counsel for the appellant. Undisputedly, the Indian Oil Corporation had purchased the Insurance Policy from plaintiff No.1. Accordingly, the Insurance Company indemnified the loss suffered by the Indian Oil Corporation. The Indian Oil Corporation, i.e., plaintiff No.2, had executed a letter of subrogation and special power of attorney in favour of the Insurance Company, i.e., plaintiff No.1. Thus, plaintiff No.1 had been authorised by virtue of the special power of attorney and the letter of subrogation executed by plaintiff No.2. Accodingly, the defendant cannot raise the contention that as there was no privity of contract between it and plaintiff No.1, no suit of recovery filed at the instance of the latter could validly be decreed.

The next contention raised by the learned counsel for the appellant is that the goods were not damaged during transit. Rather the damage to the goods occurred at the time of unloading at the destination by the employees of plaintiff No.2. Thus, no damage could be claimed against the defendant.

This contention raised by the learned counsel for the appellant is also without merit. It is the positive case of the plaintiffs that the consignment was found to be damaged due to jerks and mishandling during transit, primarily due to the negligence of the driver of the R.S.A.No.1800 of 2005

truck who was employed by the defendant. Mr.S.P.Sharma, Senior Material Officer of plaintiff No.2, testified that when the two drums had arrived at the destination, they were totally damaged and leaking. He stated that the driver of the truck had also given an acknowledgment in this regard. The version of P.W.1 finds corroboration from the statement made by Sanjay Kukherjee (D.W.2), who admitted in his affidavit (Ex.D.W.2/A) that the writing (P.W.2/A) to the effect that both the drums were received in damaged and leaked condition was made by him in Exhibit P2. Though he stated that he was forced to make these remarks as otherwise the officials of plaintiff No.2 had refused to give acknowledgment of the consignment or certificate of arrival to him, yet he admitted during cross-examination that he had not complained about this fact to higher authorities. On perusal of the statements of Mr.S.P.Sharma (P.W.1) and Sanjay Kukherjee (D.W.2) that the drums in question were received in damaged and leaked condition at the destination.

In the light of the above, I do not find any infirmity in the well-reasoned judgments and decrees passed by both the Courts below.

Consequently, there is no merit in this appeal. It is, accordingly, dismissed in limine.

May 12, 2005. ( Ashutosh Mohunta )

KKP Judge

R.S.A.No.1800 of 2005


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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