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2012 DIGILAW 196 (KAR)

Patel Roadways Ltd. v. T. V. S. Electronics Ltd.

2012-03-02

K.GOVINDARAJULU, K.L.MANJUNATH

body2012
JUDGMENT K.L. MANJUNATH, J.—The legality and correctness of the Judgment and decree passed by the City Civil Judge, Bangalore dated 2.11.2007 in O.S. No. 1859/1996 is called in question by the appellant who was defendant in the aforesaid suit. 2. Heard the counsel for the parties. 3. The facts of this case are as hereunder: The 1st plaintiff entrusted certain goods for transportation from Bangalore to Mohali. The consignment was entrusted for transportation at Bangalore and the same was received by the appellant and kept in a godown in U.P. border. Unfortunately the said godown was destroyed in a fire accident and on account of non-delivery of the consignments, since the first plaintiff had insured its goods with the 2nd plaintiff United India Insurance Company Limited, lodged a claim and claim was settled. The 2nd plaintiff obtained an agreement of subrogation. Based on the same, suit was filed for recovery of the value of the undelivered goods worth Rs. 9,11,158/- by issuing a notice under Section 10 of the Carriers Act, 1865. 4. The appellant contested the case denying the allegations. However, it admitted though the goods were destroyed in a fire accident, it was beyond its control. It was also contended that the godown of this appellant was insured with M/s. National Insurance Company Limited and in order to settle the claim of the plaintiff, the National Insurance Company Limited is also required to be made as one of the defendants and for having not impleaded M/s. National Insurance Company Limited, suit has to be dismissed for non-joinder of necessary parties. 5. Based on the above pleadings the following issues were framed by the Court below: (1) Were the goods entrusted to the defendant for safe transportation from Bangalore to Mohali under lorry receipts referred in para-4 of plaint, destroyed during fire accident during transit? (2) Had the ownership of the goods passed to the consignee by the time the accident occurred? (3) Did 2nd plaintiff settle the insurance claim of the 1st plaintiff on 20.10.93 paying Rs. 9,11,158/-? (4) Is the defendant liable to pay the suit claim? (5) What decree or order? 6. In order to prove their respective contentions, two witnesses were examined on behalf of the plaintiffs as PW1 and PW2 and plaintiffs relied upon Exs.Pl to PI5. (3) Did 2nd plaintiff settle the insurance claim of the 1st plaintiff on 20.10.93 paying Rs. 9,11,158/-? (4) Is the defendant liable to pay the suit claim? (5) What decree or order? 6. In order to prove their respective contentions, two witnesses were examined on behalf of the plaintiffs as PW1 and PW2 and plaintiffs relied upon Exs.Pl to PI5. One Niranjan Singh was examined as DW1 on behalf of the appellant and the evidence of the parties was closed. The Trial Court after considering the entire evidence let in by the parties held issues Nos. 1, 3 and 4 in affirmative, issue No. 2 in negative and ultimately the suit of the plaintiff came to be decreed. 7. Challenging the legality and correctness of the Judgment and decree of the Court below, the present appeal is filed. 8. We have heard Mr. Sanjeev, for the appellant and Mr. Janardhana Reddy for the respondents. 9. It is contended by Mr. Sanjeev, the learned counsel for the appellant, that the Trial Court has committed an error in decreeing the suit in the absence of the National Insurance Company Limited. He further submits that a claim is made by the appellant with the National Insurance Company Limited and the same is yet to be settled and in the absence of the National Insurance Company the suit filed by the plaintiffs was not maintainable. According to him, the 2nd plaintiff has not settled the claim with the first plaintiff. Any settlement inter se entered into between the plaintiffs does not bind defendant and further contends that there is no valid subrogation. In the circumstances, he requests the Court to dismiss the suit by allowing the appeal. 10. Per contra, Sri. Reddy, learned counsel for respondent supporting the Judgment of the Trial Court contended since the defendant is not disputing the entrustment of the consignment for transportation from Bangalore to Mohali and when the appellant as carrier has failed to deliver the consignment, it is for the appellant to make good the loss to the respondents. He further contends that if defendant had insured the godown. It is for the appellant to lodge a claim with the Insurance Company in terms of the policy. Therefore, he contends that the National Insurance Company cannot be considered as neither necessary nor proper party to the suit. He further contends that if defendant had insured the godown. It is for the appellant to lodge a claim with the Insurance Company in terms of the policy. Therefore, he contends that the National Insurance Company cannot be considered as neither necessary nor proper party to the suit. In the circumstances he requests the Court to dismiss the appeal. 11. Having heard the counsel for the parties, we have to consider the following two points in this appeal: (1) Whether the appellant has failed to deliver the consignments to the consignee as per the lorry receipt issued by the appellant? (2) Whether the National Insurance Company is a necessary party to the suit? (3) Whether the Judgment and decree of the trial Court requires to be set aside. 12. Since all these points are inter-linked with each other, we would like to deal with the same as hereunder: The entrustment of consignments by the first plaintiff to the defendant is not disputed. The value of the goods is also not in dispute. The defendant is not disputing that as a carrier the defendant was required to deliver consignments to Mohali in Punjab. It is also not in dispute that the defendant has not delivered the consignments since the goods were destroyed in a fire accident during transit. Therefore, if the 1st plaintiff has settled the compensation claimed with the 2nd plaintiff, by virtue of subrogation, if the 2nd plaintiff has filed the suit along with the first plaintiff towards the value of the goods, this Court cannot find fault with filing a suit without impleading National Insurance Company because there is no tripartite agreement between the consignor, the appellant and the National Insurance Company. If at all policy is taken by the appellant with National Insurance Company, such claim has to be honoured by the National Insurance Company based on the claim of the appellant. 13. In the circumstances, we are of the view that none of the grounds urged by the appellants are tenable and all the points formulated by us are to be answered against the appellant. 14. In the result, the appeal is dismissed. Parties to bear their costs.