THE HON’BLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA CITY CIVIL COURT APPEAL No.322 OF 2007 JUDGMENT: (Per Hon’ble Smt. Justice Tirumala Devi Eada)

This is an appeal filed by the appellants being aggrieved by the judgment and decree, dated 14.08.2006, passed in O.S.No.177 of 1999 by the learned I Additional Chief Judge, City Civil Court, Secunderabad (for short “the trial Court”).

2. The appellants herein are the plaintiffs and the respondent herein is the defendant before the trial Court and the parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.

3. The case of the plaintiffs before the trial Court is that the plaintiff No.1 is National Insurance Company Ltd., which is into the business of General Insurance and plaintiff No.2 is engaged in the manufacture of bearings, which has obtained an insurance policy from plaintiff No.1 vide policy No.150301/012/D/44/00003/R/ 95-96. The defendant is a transportation agency. The said insurance policy is obtained to cover the risk of manufactured items of the plaintiff No.2 by road. The plaintiff No.2 has entrusted 135 packets containing 21,600 pieces of bearings as per the invoice No.960581, dated 21.09.1996 which are in good condition to the defendant for the safe carriage and delivery to the TATA Iron & Steel Company Ltd., at Faridabad. The value of the said consignment is Rs.17,76,060/-. The said consignment was dispatched from Kharagpur to Faridabad by truck No.DL-1G-B0119. The said truck met with an accident enroute and fell into the river from Sone Bridge on G.T.Road near Dehri, Bihar resulting in heavy damage to consigned goods i.e. bearings, due to contact of water, sand and dirt contamination. A good number of bearings were also stolen from the accident spot. The available material were lifted from the accident spot on 24.09.1996 by the defendant and same were returned back on 30.09.1996 by another truck bearing No.WB-03A 1030 and the same reached to the defendant’s godown at Kharagpur on 03.10.1996. The defendant got assessed the loss at the scene of accident through Surveyor and loss assessor who submitted his report dated 30.09.1996. The plaintiff No.1 company has appointed the General Surveyors of India, Surveyors and Loss Assessors to assess the loss caused to the consignment and the survey was conducted in the presence of representatives of the defendant and the plaintiff No.2 at the godown of the defendant and submitted their report on 27.02.1997. The plaintiff No.2 issued a notice of damage to the defendant on 02.01.1997 demanding payment of Rs.13,11,488.75 paise being the value of shortage of the bearings and damage caused to the bearings. The said notice was received by the defendant on 04.01.1997 and the defendant also issued a certificate on 30.03.1997 but refused to settle the claim stating that the consignment was booked at owner’s risk. Thus, the plaintiff No.2 approached the plaintiff No.1 and submitted the claim bill. Plaintiff No.1 being the insurer, settled the claim for Rs.11,00,053.83 paise and made payment through cheque bearing No.QQR 060 990, dated 15.04.1997 drawn on Punjab National Bank towards full and final settlement of the claim and the same was acknowledged by plaintiff No.2. While receiving the same, the plaintiff No.2 has executed a letter of subrogation and special power of attorney in favour of plaintiff No.1 on 15.04.1997 authorizing the plaintiff No.1 company to take all necessary action for recovery of the amount from the defendant. Thereafter, the plaintiff No.1 addressed many letters to the defendant informing that an amount of Rs.11,00,053/- was paid to the plaintiff No.2 under the insurance policy and thus, demanded the defendant for payment of the same. The defendant gave a reply stating that the consignment was booked at owner’s risk and as such, they are not liable to pay any amount. Thereafter, a notice under Section 1