- (1.) This appeal has been preferred by the appellants against the judgment dated 12.4.2006 (decree signed on 24.4.2006) passed by Subordinate Judge-II, Bokaro in connection with Money Suit No. 4 of of 1998, whereby suit was decreed in favour of plaintiff/ respondent No. 1 with costs and appellant /defendant No. 1/ was directed to pay Rs. 4,45,850/- together with interest @ 6% pendente lite and future interest from the date of filing of suit till final realisation of the decreetal amount. The appellant was also directed to clear the entire amount with interest within two months failing which respondent/ plaintiff shall be entitled to realise the same through the process of Court.
(2.) The plaintiffs/ respondent No. 1 and 2 (Plaintiffs) have filed a suit in the Court of Sub Judge at Bokaro by filing plaint stating therein that plaintiff - Oriental Insurance Company Limited (hereinafter referred to as Insurer) engaged in carrying on general insurance business through its branches spread throughout India. The plaintiff No. 2 - Steel Authority of India Limited (SAIL), Bokaro [hereinafter referred to as consignee] having its office at M.G. Road, Steel City, Bokaro, have assigned their rights and remedies to plaintiff No. 1 and have executed letter of subrogation, special power of attorney in favour of plaintiff No. 1 - insurer. The defendant No. 1, being a common carrier within the meaning of Carriers Act, 1865, has been doing business of carrying goods as pubic carrier through its branches in India having its registered office at Balidih Industrial Area, District Bokaro. On 26.4.1995 the consignee entrusted with defendant No. 1 goods i.e. G.C. sheets-8 m.m. weighing 21.640 M.T. valued at Rs. 4,51,800/- vide consignment note No. 563 dated 26.4.1995. The aforesaid consignment of G.C. Sheets was carried through defendant No. 1 by Truck No. GJ-7U-7392, Stock Yard, SAIL, BSO, B.S. City, Bokaro to Chandigarh Railway Station Road, Stock Yard, but the consignment was to be delivered to insured plaintiff No. 2 at his Chandigarh Stock Yard. This fact came to the knowledge of plaintiff No. 1/ respondent No. 1 on 5.9.1995 when the Branch Manager of plaintiff No. 2 insurer wrote a letter vide No. BKS/RM95-96 dated 28.8.95 to the Oriental Insurance Co. Ltd. (R-1). The aforesaid fact was brought to the knowledge of defendant No. 1 / appellant who also lodged an F.I.R. on 2.8.1995 vide Marafari P.S. Case No. 71 of 1995 against the owner and driver of said truck on which the goods were loaded. No delivery certificate vide letter No. FL/BOK/7&8/95 dated 28.8.1995 issued by plaintiff No. 2 through their Manager (Finance), namely, S. Sridhar was brought to the knowledge of appellant/ defendant No. 1 and a claim for Rs. 4,51,800/- was lodged. The appellant/ defendant did not take cognizance and ignored the claim for payment of Rs. 4,51,800/- and kept silence on the matter. It was further contended that respondent/ plaintiff No. 2 had taken insurance policy through respondent/ plaintiff No. 1 covering any or all kinds of risk against damage of goods or loss of the consignment vide policy schedule any where in India from Bokaro by road vide Policy No. 3332701/0/0/M-OP-SDP/001/94-95 (Para-11 of the Plaint). The goods were insured and therefore respondent No. 1/ plaintiff No. 1 had paid the claim of Rs. 4,45,850/- to the respondent No. 2/ plaintiff No. 2 and thereafter the suit for recovery for said sum of Rs. 4,45,850/- was filed against appellant/ defendant No. 1 making M/s. PNA & Associates as Investigator as proforma defendant No. 2.
(3.) After service of notice the appellant/ defendant appeared before the Court below and filed written statement denying his liability and contended that suit is bad in law for want of notice u/s 10 of The Carriers Act and is liable to be dismissed on this ground alone. The plaintiffs have no cause of action and the appellant was not negligent in any manner in sending the goods. It was the practice that the appellant used hired trucks form open market and in this case too the truck was hired from the market by which the goods were sent for Chandigarh. It is the owner and driver of the truck who committed breach of trust and misappropriated the property for which Marafari P.S. Case No. 71 of 1995 was lodged. It has been also made clear that M/s. Ambala Jagdhari Roadline of Singh Nagar, Katras Road, Jharia had provided the said truck No. GJ7U-7392. In course of investigation, the goods i.e. G.C. Sheets were recovered and it was informed to plaintiff No. 2 to get it released but action taken by them is not known to the appellant/ defendant. The appellant had also denied and admitted the respective contention of the plaintiff parawise in the W.S.;