Rakesh Kumar Garg, J.

1. This is the defendants second appeal challenging the judgment and decree of the courts below whereby suit of the plaintiff-respondent for recovery of Rs. 1,13,100 along with pendente lite interest at the rate of 12 per cent per annum and future interest at the rate of 6 per cent per annum on the principal amount till the realization of the decretal amount was decreed against the appellant.

2. The case of the plaintiff as stated in the plaint was that defendant-respondent No. 2 had purchased some goods for their factory from defendant-respondent No. 3 and got the service of defendant No. 1 for transportation of goods vide consignment note dated 16.9.1992. The goods were loaded in truck No. RJ 13-G 1118 with an understanding and obligation that goods would be delivered at the premises of the defendant-respondent No. 2 with plaintiff- respondent No. 1. Loaded goods reached defendant No. 2s premises on 20.9.1992. It came to the notice of defendant No. 2 that the goods had been damaged during transit due to negligence of appellant and its agents. As a result of this, defendant- respondent No. 2 had claimed the loss of Rs. 87,855 from the plaintiff-respondent. Plaintiff-respondent got survey done and on the basis of the survey report, amount of damages was paid by the plaintiff- respondent to defendant-respondent No. 2. It was averred that the appellant was liable to make good the loss to the plaintiff by paying the amount in question. Hence the recovery suit was filed.

3. Pursuant to the notice, the defendant appeared and filed written statement admitting that it was engaged for transportation of goods. However, it was stated that goods had reached in the factory premises of the respondent No. 2 in good condition and without any damage and, in any case, the defendant-respondent No. 2 had been paid the loss by the plaintiff-respondent and the appellant was not liable to pay the same.

4. After considering the evidence on record and hearing the counsel for the parties, the suit was decreed on 19.1.2006 against the appellant. The appeal filed by the appellant against the judgment and decree of the trial court was also dismissed by the lower appellate court vide its judgment and decree dated 14.2.2007.

5. Feeling aggrieved from the judgment and decrees of the courts below, the defendant No. 1 has filed this appeal.

6. Learned counsel for the appellant has vehemently argued that courts below have misread and misinterpreted evidence and documents on record which has vitiated the judgment and decrees of the courts below. According to the counsel for the appellant, undisputedly defendant No. 2 had purchased the goods in question from defendant No. 3 and engaged appellant to transport the said goods and it was defendant No. 2 who got those goods insured with the plaintiff-respondent and according to the document Exh. P12 on record (special power of attorney) given by defendant No. 2 to the plaintiff-respondent on 31.8.1993 to file the case for recovery of damages against the appellant and to do other needful things in this regard. Thus, the plaintiff- respondent as special power of attorney on the basis of Exh. P12 could only file the suit on behalf of the defendant No. 2 in its name, whereas the present suit has been filed by the plaintiff company itself in its own name. The material defect has been completely ignored by the courts below. Therefore, the following substantial question of law arises in this appeal:

"Whether on the basis of a letter of subrogation executed by the insured in favour of insurance company, the insurance company was competent to file the present suit for recovery in its own name against the appellant?"

7. Learned counsel for the appellant has relied upon a judgment of the Honble Supreme Court of India in the case of Oberoi Forwarding Agency v. New India Assurance Co. Ltd., (2000-2) 125 PLR

8. Thus, the learned counsel for the appellant has prayed for acceptance of the appeal and set