IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22/01/2003
CORAM
THE HONOURABLE MR.JUSTICE R.JAYASIMHA BABU
and
THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN
L.P.A.No.101 of 2000
M/s.United India Insurance Company Ltd.,
by its Divisional Manager, Tuticorin. ... Appellant
-Vs-
1. Muthulakshmi
2. Radhakrishnan
3. M/s.Star Match Factory
a registered partnership
firm by its partner,
R.Selvaraj. ... Respondents.
L.P.A. filed against the judgment and decree dated 19.9.1997 made in
A.S.No.712 of 1984 on the file of this Court filed against the judgment and
decree dated 27.10.1983 made in O.S.No.51 of 1982 on the file of Sub Court,
Srivilliputhur.
!For appellant :: Mr.B.T.Seshadri for Mr.R.Vedantham
^For respondents :: Mr. K.Yamunan for R1 & R2
No appearance for R3.
:JUDGMENT
N.V.BALASUBRAMANIAN,J.
The plaintiff is the appellant. The defendants 1 and 2 are
the legal heirs of of one K.R.Raman who carried on the goods transport
business in the name and style, Sri Velmurugan Transport at Sattur. The third
defendant booked a consignment on 15.6.1979 with the said Sri Velmurugan
Transport for transporting certain bundles of matches from Mudukku
Meendanpatti village, Sattur taluk to Lalithapur, Maharashtra State. The
goods were transported by Sri Velmurugan Transport through its lorry and the
lorry on its way to the destination overturned and fell and on account of the
heavy impact due to the said fall, the match bundles loaded in the lorry got
fire and the entire match bundles were completely burnt. The third defendant
who booked the consignment informed the plaintiff of the accident and also
gave a notice to the proprietor of Sri Velmurugan Transport claiming the value
of the goods lost in the fire. The proprietor of Sri Velmurugan Transport
disowned his liability. Since the goods were insured with the plaintiff by
the third defendant under Transit Insurance Scheme, the plaintiff settled the
claim of the third defendant by payment of a sum of Rs.75,530/-, being the
value of the damages goods on 10.12.1979. The third defendant executed on the
same day a letter of Subrogation in favour of the plaintiff and also executed
a Special Power of Attorney authorising the plaintiff to take necessary legal
proceedings on behalf of it against the proprietor of Sri Velmurugan
Transport.
2. The proprietor of Sri Velmurugan Transport, Raman died and
his legal representatives were shown as defendants 1 and 2 in the suit along
with the owner of the consignment, namely, the third defendant on the ground
that the third defendant was colluding with defendants 1 and 2 and evading to
join the plaintiff in filing the suit. Hence, the suit was filed for recovery
of a sum of Rs.97,106.40 with interest of Rs.75,530/- from the date of plaint
till the date of payment.
3. The third defendant remained ex parte in the suit and
defendants 1 and 2 contested the matter. The trial Court, after framing
necessary issues, found that the accident had occurred due to the negligence
of the common carrier and it was only due to the negligence on the part of the
driver, the accident had occurred. The trial Court also found that on the
basis of the document, viz., the deed of subrogation (Ex.A-12), the suit filed
by the plaintiff was maintainable, and accordingly, decreed the suit.
4. Defendants 1 and 2 preferred an appeal before this Court
and the learned Single Judge has found that the tyre of the lorry was burst
due to the negligence on the part of the carrier as the vehicle was not
properly maintained by the carrier. Learned single Judge accordingly
confirmed the finding of the trial Court on the question of negligence and
held that the accident had occurred due to the negligence of the carrier.
Learned Single Judge, however, held that the letter of subrogation did not
amount to assignment of policy to clothe the insurer to claim indemnity.
Learned Single Judge also held that under Ex.A-12 the right assigned was only
a right to sue and not the right in the property and the suit filed by the
Insurance Company was not maintainable. Learned Single Judge allowed the
appeal holding that the plaintiff has no right to sue in its own name. It is
against the judgment and decree, the present appeal has been preferred.
5. We heard Mr.B.T.Seshadri, learned counsel for the
appellant and Mr.K.Yamunan, learned counsel for the respondents 1 and 2.
Though Mr.K.Yamunan, learned counsel for the respondents submitted that the
finding of the learned Single Judge that the loss occurred due to the
negligence on the part of the carrier is not sustainable, yet, we find that
the trial Court as well as the learned Single Judge of this Court, on
appreciation of evidence, has correctly come to the conclusion that the loss
occurred due to the negligence on the part of the carrier. Under section 9 of
the Carriers Act, 1865, it is for the common carrier to prove that the damage
is due to the act of God or alien enemies. The trial Court and the learned
Single Judge have found that the common carrier has not proved both the
aspects and hence, the liability of the common carrier was not discharged.
6. The decision of the Supreme Court in PATEL ROADWAYS LTD.
v. BIRLA YAMAHA LTD. (2000) 4 S.C.C.91) is an authority for the proposition
that the liability of a common carrier under the Carriers Act is that of an
insurer, and in the case of claim of damage for loss to or deterioration of
goods entrusted to a carrier it is not necessary for the plaintiff to
establish negligence and the absolute liability of the carrier is subject to
the exception where the loss or damage arises from an act of God. In the
instance case, the accident could have been averted by certain amount of
foresight of the owner of the common carrier and it is an accident which
resulted from the action of the common carrier and the accident cannot be said
to be an act of God. Accordingly we confirm the said finding of the learned
Single Judge that the accident occurred due to the negligence on the part of
the carrier in not properly maintaining the vehicle in question.
7. We are also of the view that the learned Single Judge was
correct in his view that Ex.A-12 should be construed only as a letter of
subrogation, though in the deed, the word, ‘assignment’ has been used. We
have gone through the document Ex.A-12 and we find that the document does not
amount to a letter of assignment as under Ex.A-12 what was transferred was
only a right to sue and there was no transfer of interest in the property. In
UNION OF INDIA v. SRI SARADA MILLS ( AIR 1973 S.C. 281) the Supreme Court
has held that under section 6(e) of the Transfer of Property Act, 1882, a bare
right of action for claims to damages for breach of contract or claims to
damages for tort cannot be transferred because the law does not recognise the
transaction which may savour of maintenance of champerty. The Supreme Court
also held that when there is only interest in the subject matter, the
transaction can be saved from the imputation of maintenance and the interest
must exist apart from the assignment and to that extent, must be independent
of it. The Supreme Court has held that the subrogation would not give the
insurer a right to sue in a court of law in his own name as the subrogation is
concerned solely with the mutual rights and liabilities of the parties to the
contract of insurance and it confers no rights and imposes no liabilities upon
third parties who are strangers to the contract. It is clear that on the
facts of the case the goods did not exist on the date of letter of
subrogation. Hence, the mere use of the expression, ‘assignment of right in
the property’ in Ex.A-12 does not improve the case of the plaintiff as the
goods were not in existence on that date. Learned Single Judge was therefore
correct in his view that Ex.A-12 does not assign the policy and under Ex.A-12
only a right to sue was transferred which is prohibited under section 6(e) of
the Transport of Property Act.
8. Though we are of the view that the learned Single Judge
was correct in his view in the construction of the document Ex.A-12, we hold
that the learned Single Judge overlooked the fact that the plaintiff has
included the third defendant in the array of parties to the suit and the
plaintiff has also claimed in the plaint that the third defendant was
impleaded as a party/defendant as it was evading to join the plaintiff as
co-plaintiff in filing the suit colluding with the defendants 1 and 2. The
Kerala High Court, in a similar circumstance, in NEW INDIA ASSURANCE CO. LTD.
v. OKAY TRANSPORT CORPORATION (1991 ACJ 482) noticed the decision of the
Supreme Court in Union of India v. Sri Sarada Mills Ltd. (AIR 1973 SC 281),
particularly, the following passage to hold that such a suit is maintainable:-
” The defence of the Railway Administration was that the mill
realised from the insurance company the damages and ‘as such the plaintiff
(meaning thereby the respondent mill) has no right to claim any such in this
action’. If the specific plea of assignment had been taken in the written
statement the respondent mill would have impleaded the insurance company. The
Court could have in those circumstances been in a position to afford full and
complete relief to the parties.”
We are in respectful agreement with the view expressed by the Kerala High
Court. It is axiomatic that the Court has the power to afford full and
complete relief to the parties when all parties are before the Court. Though
the plaintiff should have impleaded the insured as a co-plaintiff, since the
third defendant was not willing to join the insurance company as a
co-plaintiff, the plaintiff will be taking a great risk if the the third
defendant was impleaded as a co-plaintiff or if the suit was instituted on the
power of attorney executed in its favour by the third defendant. The third
defendant also remained ex parte in the suit as well as in the appeal before
this Court. We are therefore of the view that the Court has the full power to
do complete justice between the parties and the defence raised by the
defendants 1 and 2 that the insured is not a co-plaintiff is hypertechnical as
the insured is before the Court though it figures as one of the defendants.
We are of the view that when the Court finds that all the parties who are
interested in the suit are before the Court, the Court has the necessary power
to mould and grant the necessary reliefs. The third defendant has not
disputed that it had received the money from the plaintiff in settlement of
its claim, but the act of the third defendant and its unwillingness to
participate in the court proceedings show that it would not have joined the
plaintiff as coplaintiff. There can be no doubt that the Court has the
necessary power to grant a decree in favour of the third defendant and then
direct the third defendant to pay the money realised out of execution of the
decree to the plaintiff. Since the action of the third defendant establishes
that it was unwilling to participate in the court proceedings as a
co-plaintiff, we are of the view that the interest of justice would be met by
granting a decree in favour of the plaintiff against the defendants 1 and 2.
9. Accordingly, the letters patent appeal stands allowed and
the judgment and decree of the learned Single Judge is set aside and the
judgment and decree of the trial Court is restored, though not for the reasons
stated by the trial Judge in his judgment. Accordingly, there will be a
decree in favour of the plaintiff as against the defendants 1 and 2 as prayed
for. The appellant succeeds to the above extent. However, in the
circumstances, there will be no order as to costs.
Index: Yes
Website: Yes
na.
To
1. The Subordinate Judge, Srivilliputhur.
2. The Record Keeper, VR.Section, High Court, Madras.
((SCO LYRIX 6.1
))