JUDGEMENT
R.L.KHURANA, J. -
(1.)The first plaintiff is Messrs. United India Insurance Company having its registered office at Madras and Divisional office at Ludhiana, while the second plaintiff Messrs. Malwa Cotton Spinning. Mills is a registered limited company having its registered office at Ludhiana (Punjab) and works at Paonta Sahib in District Sirmaur (H.P.).
(2.)The defendant is a public common carrier -carrying on its business in transporting goods from place to place for hire. It has its registered office at Baroda. The second plaintiff purchased 42 bales of Acrylic Fibre from Messrs. Indian Petro -chemical Corporation, Baroda. Such bales were dispatched by the said Corporation for redelivery to the second plainff at its works at Paonta Sahib through the defendant on 20.9.1995 vide consignment, note No.6447 dated 20.9.1995 (copy Ex.PWl/E5). The consignment of 2 bales of Acrylic Fibre during the course of transit was insured by the second plaintiff with the first plaintiff under policy No.200900/21/36/11/74/95. the truck of the defendant which was carrying the consignment, met with an accident on 23.9.1995 near village Sampla in District Rohtak (Haryana) while on its way to Paonta Sahib. The truck overturned and fell down into the water. As a result all the 42 bales were submerged in water and were damaged. The consignment in a damaged condition was delivered to the second plaintiff at Paonta Sahib on 29.9.1995. A claim for the damage was accordingly lodged by the second plaintiff with the defendant vide registered notice dated 30.9.1995. The defendant in response to such notice did not pay the damages claimed. Instead it issued a damage certificate dated 3.10.1995 (E.X.PW1/E1). In such certificate, which was issued without prejudice, the defendant admitted that all the bales were damaged in water. It was stated that the truck overturned due to heavy rains and natural flood enroute and for the reasons beyond their control.
(3.)The second plaintiff then lodged the claim with the first plaintiff. The damage age was got assessed by the first plaintiff through a surveyor, at Rs.6,99,980/ -. The damage so assessed was paid by the first plaintiff to the second plaintiff on 20.11.1995. In consideration of the said payment of claim by the first plaintiff, the second plaintiff executed a letter of subrogation, an assignment, assigning and transferring in favour of the first plaintiff all its rights and remedies including the right to sue the defendant for recovery of the amount of damages.
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