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2008 Supreme(Del) 1082
IN THE HIGH COURT OF DELHI
SANJIV KHANNA
UNITED INDIA INSURANCE COMPANY LTD. - Appellant
Versus
BLUE DART EXPRESS LTD. - Respondent
CS(OS) NO. 78 OF 2002
Decided On : 24-10-2008
Mr. R.K. Ram, Advocate.
Mr. Jay Savla, Ms. Meenakshi Ogra and Mr. Arundhati Das, Advocates.
The main legal point established in the judgment is that the entitlement to file a recovery suit based on subrogation and power of attorney does not override the limitation period under the Limitation Act, 1963.
Headnote:
Carrier Liability - Recovery Suit - Marine Insurance Act, 1963 - Carriers Act, 1865 - Limitation Act, 1963
Fact of the Case:
Plaintiffs filed a suit for recovery of Rs.23,53,476 against the defendant, a common carrier, for damage to goods during transportation. Plaintiffs claimed entitlement to file the suit under Letter of Subrogation and Special Power of Attorney executed by plaintiff No. 2. Defendant objected to the suit on various grounds including limitation.
Finding of the Court:
The court found in favor of the plaintiffs on the issue of entitlement to file the suit based on the Letter of Subrogation and Special Power of Attorney. However, the court held that the suit was barred by limitation under Article 10 of the Limitation Act, 1963.
Issues: The issues included the entitlement of the plaintiffs to file the suit, the liability of the carrier under the Carriers Act, 1865, and the applicability of the limitation period under Article 10 of the Limitation Act, 1963.
Ratio Decidendi: The court held that the plaintiffs were entitled to file the suit based on the Letter of Subrogation and Special Power of Attorney. However, the suit was found to be barred by limitation under Article 10 of the Limitation Act, 1963, as the damage occurred during transportation and the suit was filed beyond the limitation period.
Final Decision: The suit of the plaintiffs was dismissed as barred by limitation.
1. Plaintiff No. 1, United India Insurance Company Limited and plaintiff No. 2, M/s Rolta India Limited have filed the present suit for recovery of Rs.23,53,476/- against M/s Blue Dart Express Limited, the defendant No. 1. Plaintiff No. 1 claims that it is entitled to file the present suit under Letter of Subrogation and Special Power of Attorney dated 10th September, 1999 executed by plaintiff No. 2.
2. The defendant No. 1, M/s Blue Dart Express Limited is a common carrier and had transported consignment of imported computers and computer peripherals in 52 boxes from Delhi to Military Intelligence Headquarters, 4 Corps, Tejpur, Assam vide carriage way bill dated 1st December, 1998. The delivery was taken on 10th December, 1998 and the consignee viz. Directorate of Military Intelligence, Tejpur, Assam at that time had noticed damage to box No. 2.
3. The plaintiffs claim that the said box was opened on 15th April, 1999 in the presence of the experts of the plaintiff No. 2 and it was found that photo scanner had been damaged and required complete replacement.
4. Plaintiff No. 2 had taken an inland transit insurance policy from plaintiff No. 1 and on account of damage, Rs.23,53,476/- including survey fee of Rs.3,505/- and excluding Rs.2,25,000/- recovered by plaintiff No. 1 from sale of the damaged goods, was paid by plaintiff No. 1 to the plaintiff No. 2.
.5. On the basis of Letter of Subrogation and Special Power of Attorney executed by plaintiff No. 2, the plaintiff no.1 insurance company has filed the present suit for recovery of Rs.23,53,476/- along with interest against the defendant No. 1. It is claimed
.that the defendant No. 1 was negligent and had caused damage to the goods when they were within their custody and is liable as a transporter.
6. Pursuant to objection taken by defendant No. 1 in their written statement, that the consignor and the consignee as per the carriage way bill were Directorate of Military Intelligence, the plaintiffs had filed an application under Order I, Rule 10 and Directorate of Military Intelligence was impleaded as defendant No. 2. Written statement has been filed on behalf of the said defendant stating, inter alia, that they had no role to play as the goods had been insured by plaintiff No. 2 with the plaintiff No. 1 and plaintiff No. 2 had settled the claim with the insurance company and received payment. They have also stated that when the consignment had reached Tejpur, one box being box No. 2 out of 52 boxes, was found to be damaged. It is also stated that the photo scanner, which was damaged was incapable of repair and had to be replaced.
7. On the basis of the pleadings of the parties, on 24th January, 2006 following issues were framed:- (1) Whether the plaintiff No. 1 can maintain a suit on the basis of letter of subrogation cum Special Power of Attorney dt. 10/9/99 in its favour by plaintiff No. 2 as alleged in para 2 of the plaintOPP (2) Whether the present suit is barred by law of limitation OPD (3) Whether the claim of the plaintiff No. 1 based on a Letter of Subrogation- cum-Power of Attorney from the plaintiff No. 2 is maintainable against the present Defendant when the shipment in question recorded Military Intelligence, New Delhi, i.e., Defendant No. 2 as Consignor amd(sic)Military Intelligence, Tejpur as Consignee as stated in para 2 of the written statement OPP (4) Whether the Plaintiffand Defendant No. 1 are governed by the terms and conditions of the contract dt. 2-12-1994 wherein the liability of the Defendant for any loss or damage to the shipment shall be strictly regulated by the limitation of liability clause and other relevant terms and conditions as mentioned on the Way Bill OPD (5) Whether this Court has the jurisdiction to adjudicate upon the present dispute between the parties wherein the Way Bill limits the settlement of all disputes and claims subject to Mumbai jurisdiction OPD (6) Whether the Plaintiff has forfeited its right by not lodg
