Delhi District Court
The New India Assurance Co. Ltd vs Yadav Transporter on 7 February, 2026
IN THE COURT OF SHRI DEVENDER KUMAR, DISTRICT JUDGE
(COMMERCIAL COURT-01), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm.) No. 37/2024
The New India Assurance Company Limited
10th Floor, Core-I, Scope Minar,
Laxmi Nagar, Delhi
Through its Manager ...... Plaintiff
Vs.
1. Yadav Transporter
Through its Proprietor / Manager
Nirbhay Yadav
Near Markand Bridge, Shivalik Colony,
Kala-Amb, Tehsil Naraingarh
Distt. Ambala, Haryana
2. M/s Aggarwal Glass Works
12 B, Industrial Area, Trilokpur Road,
Kala-Amb, Tehsil- Nahan,
District Sirmour, (H.P) ...... Defendants
Date of Institution : 01.02.2024
Date of Arguments: 28.01.2026
Date of Judgment : 07.02.2026
JUDGMENT:
1. Vide this judgment I shall dispose of this suit for recovery of Rs.
17,52,637/- along with interest @ 18% per annum filed by the plaintiff
against the defendants. Brief facts of the case are as under:
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 1/29
KUMAR Date:
2026.02.07
16:19:58
+0530
2. Plaintiff is an insurance company incorporated under Companies Act
and is being represented through its Manager, Ms. Prabha Malhotra, who is
authorized through Power of Attorney to institute this suit. It is further
alleged that the defendant No. 1 is a common carrier of goods and
transports goods by road throughout India for hire and reward and is
covered under The Carriage by Road Act for transportation of goods.
Defendant no. 2 was insured and proforma defendant subscribed Marine
Cargo Open Policy from the plaintiff to insure consignment vide Policy No.
32010021210200000011 for the period w.e.f. 15.01.2022 to 14.01.2023. It
is further alleged that the defendant no. 2 booked a consignment of 1663
pieces of toughed glasses with the defendant no.1, having value of Rs.
20,84,987/- including GST, vide Invoice No. AGW-2021/22-401 dated
14.02.2022 and GR No. 5001 dated 14.02.2022, to transport from Kala
Amb Industrial Area to Banaras (Varanasi).
2.1. Plaintiff has further alleged that the consignment was booked but did
not reach to its destination at Varanasi, as truck owned by the defendant no.
1 met with an accident and the consignment got damaged. It is further
alleged that on getting information, the defendant no. 2 immediately
registered his claim with the plaintiff and the plaintiff appointed surveyor
Pankaj Goel, who prepared report and assessed loss of Rs. 17,52,637/- and
the defendant no.1 issued damage certificate dated 07.03.2022 wherein the
defendant admitted that the defendant no.2 booked a consignment of
Automotive toughed glasses and the consignment got damaged on the way
to Varanasi. It is further alleged that the defendant no. 2 also intimated to
the defendant no. 1 vide letter dated 26.02.2022 that it had suffered losses
Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 2/29
KUMAR Date:
2026.02.07
16:20:06
+0530
of Rs. 20,84,987/- and requested to compensate for damages. However, the
plaintiff paid claim amount of Rs. 17,52,637/- as per survey report to the
defendant no.2.
2.3. Plaintiff has further alleged that the defendant no. 2 served a notice
dated 26.02.2022 upon the defendant no. 1 under Section 10 of Carriage
Act but the defendant no. 1 failed to settle claim and the plaintiff also
served a similar notice before disbursement of the claim but legal notices
were neither replied nor complied with. It is further alleged that the
defendant no. 1 being common carrier was negligent and caused damage to
the consignment and failed to exercise due diligence and care in
transportation of the consignment and is liable to pay suit amount. Plaintiff
has further alleged that the defendant no. 2 has subrogated its rights
regarding claim in favor of the plaintiff through letter of Subrogation &
Special Power of Attorney dated 11.10.2022 and the plaintiff has filed suit
to recover claim amount paid to the defendant no.2, hence present suit for
recovery of Rs. 17,52,637/- along with interest @ 18% per annum.
3. Defendant No. 1 has filed WS thereby denying is liability to pay this
amount, as the defendant no. 1 is not a common carrier and also not insurer
to fasten liability of damage. It is further alleged that even this plaint is not
signed on each and every page and authority of AR is also not on record,
due to this suit is not maintainable. Defendant has denied its liability
thereby alleging that the defendant no. 2 booked a consignment of delivery
of toughed glasses and material was loaded on truck bearing no.
HR-63B-6050 on 14.02.2022 to transport from Kala Amb Industrial Area to
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 3/29
KUMAR Date:
2026.02.07
16:20:13
+0530
Banaras (Varanasi) and Prem Singh was driver of vehicle, but on
15.02.2022 at about 12.33 AM, driver was driving vehicle consciously and
reached near forest area of Naraingarh when suddenly a Nilgai came in
front of truck and collided and cause accident. It is further alleged that
driver tried to stop truck to save collision but lost balance and overturned,
due to glass consignment got damaged.
3.1. Defendant has further alleged that truck driver immediately lodged
Diary Entry No. 8 dated 15.02.2022 with Kala Amb Police Station and
matter was investigated by HC Parveen Kumar, who closed investigation
by concluding similarly. It is further alleged that surveyor of the plaintiff
also conducted survey and recorded statement of truck driver and found no
negligence on the part of truck driver and such accident was Act of God, or
reason beyond human control, due to this suit is liable to be dismissed. It is
further alleged that survey report prepared by Pankaj Goel was biased and
prepared at the instance of the plaintiff and the defendant is not liable to
pay any damage. Defendant has further alleged that the plaintiff has failed
to serve any mandatory notice under Section 16 of Carriage of Road Act,
2007 within limitation, due to this suit is not maintainable and is liable to
be dismissed.
3.2. Defendant no. 2 has also filed WS thereby denying locus standi of
the plaintiff to file the suit and has alleged that the defendant no. 2 is
neither transporter nor insurance company, due to the defendant no. 2 is not
liable to pay any damage. However, it is not denied that the defendant no.2
booked a consignment with the defendant no. 1 to transport toughened
Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024 DEVENDRA KUMAR
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. KUMAR Date: 4/29
2026.02.07
16:20:19
+0530
glasses to Varanasi but the same got damaged and the defendant no. 1
issued damage certificate dated 07.03.2022 and raised a loss of Rs.
20,84,987/-. Defendant has prayed that this suit is liable to be dismissed.
4. Initially, the defendant no. 2 joined as the plaintiff no. 2, but
subsequently, he was transposed to the defendant no. 2 vide order dated
23.10.2024.
5. Plaintiff has not filed replication to written statements and
opportunity of the plaintiff to file replication was closed vide order dated
01.08.2025.
6. On the basis of pleadings of the parties the following issues were
framed vide order dated 01.08.2025 as under:
ISSUES:-
1. Whether plaintiff is entitled for decree of amount of Rs.
17,52,637/- as prayed for? OPP.
2. Whether the plaintiff is entitled for interest against decretal
amount as prayed for, if so, at what rate and for what period?
3. Relief
7. To prove the case, the plaintiff has examined PW1 Ms. Priya Sinha,
Manager, who has deposed in verbatim of plaint and has relied upon
documents Ex. PW1/1 to Ex. PW1/8, except documents Ex.PW1/2 to
Ex.PW1/4, which were de-exhibited and read as Mark A to Mark C.
Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024 KUMAR
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA 5/29
KUMAR Date:
2026.02.07
16:20:26
+0530
7.1. During cross examination, PW1 has deposed that she did not visit the
place of incident but surveyor to investigate was appointed to assess the
losses as per norms. It is further deposed that date of incident was on
14.02.2022 but it is not within her knowledge who was negligent during
this incident. It is further deposed that as per survey report, no negligence
was recorded but it is denied that incident did not occur due to negligence
of truck driver, or that one Nilgai suddenly came in front of vehicle and
caused accident. It is admitted that copy of policy placed on record is
different to the policy regarding which surveyor prepared his report. It is
further admitted that the plaintiff has filed this suit on the basis of surveyor
report and GD entry No. 8 dated 15.02.2022.
7.1.1. PW1 has admitted that legal notice u/s 10 of Carrier Act, 1865/ u/s
16 of Carriage by Road Act, 2007 is to be issued within six months of the
incident, but in this case, it was issued beyond six months. It is denied that
the defendant no. 1 has mentioned in invoice dt. 14.02.2022 that it shall be
not be responsible for breakage, leakage etc. It is further admitted that
claim has been processed as per surveyor report as well as terms and
conditions of policy, but it is denied that the defendant no. 1 is not liable to
pay any amount to the plaintiff company. It is admitted that power of
attorney / authority of AR, who has filed this case, is not on record.
8. Defendant no. 1 has examined DW1 Nirbhay Yadav, Proprietor of
M/s Yadav Transporter, who has deposed in verbatim of his WS.
8.1. During cross examination, DW1 has deposed that he contacted M/s
Aggarwal Glass Works for transportation of goods/ glasses from Kala Amb,
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 6/29
KUMAR Date:
2026.02.07
16:20:32
+0530
Ambala to Banaras, but he has not filed copy of bilty. It is further deposed
that name of his driver was Prem Singh, who was driving vehicle on the
day of incident and informed him about incident wherein goods got
damaged. It is further deposed that he visited the spot of incident after 2-3
hours but did not witness this incident. It is further deposed that he heard
that one Nilgai came in front of vehicle and resulted into this incident and
visited the spot and observed a turn on the road but it is denied that his
driver could not control his vehicle on turn and caused accident. It is
further deposed that he did not see any Nilgai at the spot. It is further
admitted that the defendant no. 2 demanded damage certificate after 1½
months of the incident and he issued accordingly. It is further admitted that
he received a legal notice from the defendant no. 2 after 2-3 months of the
incident. It is further deposed that he did not receive any notice from the
plaintiff company to pay damages.
9. I have heard the arguments and perused the record. My issue wise
findings are as under: –
ISSUE No. 1: – The onus to prove this issue was put upon the plaintiff and
to discharge the onus, the plaintiff has examined PW1 Priya Sinha, who has
deposed in verbatim of plaint and has deposed on the basis of official
record. However, before deciding this case on merit, it is necessary to
determine the authority of AR to institute this suit, as both the defendants
have challenged the authority of AR, Ms. Prabha Malhotra to institute this
suit.
Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024 DEVENDRA KUMAR
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. 7/29
KUMAR Date:
2026.02.07
16:20:37
+0530
Authority of AR to institute of this suit
10. Admittedly, a civil suit by a company / corporation has to be singed
and verified by Authorized Representative in terms of Order 29 Rule 1 of
CPC, whereas appointment of Recognized Representative must be in terms
of Order 3 Rule 2 of CPC. Order 29 Rule 1 is as under:
Order 29 Rule 1. Subscription and verification of pleading.– In suit
by or against a corporation, any pleading may be signed and verified
on behalf of the corporation by the secretary or by any director or
other principal officer of the corporation who is able to depose to the
facts of the case.
11. In view of Order 29 Rule 1 of CPC, persons mentioned must sign
and verify pleadings like Secretary, Director, or any other Principal
Officer of the company / corporation. They must sign and verify
pleadings besides Authorized Representatives appointed by a company /
corporation on its behalf through Board Resolution. The authority of
other recognized agents has been prescribed under Order 3 Rule 1 & 2 of
CPC as under:
Rule 1. Appearances, etc., may be in person, by recognized agent or
by pleader.–Any appearance, application or act in or to any Court,
required or authorized by law to be made or done by a party in such
Court, may, except where otherwise expressly provided by any law
for the time being in force, be made or done by the party in person, or
by his recognized agent, or by a pleader [appearing, applying or
acting, as the case may be, on his behalf :
Provided that any such appearance shall, if the Court so directs, be
made by the party in person.
Rule 2. Recognised agents.–The recognised agents of parties by
whom such appearances, applications and acts may be made or done
are–
(a) persons holding powers-of-attorney, authorising them to make and
do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 8/29
KUMAR Date:
2026.02.07
16:20:42
+0530
parties not resident within the local limits of the jurisdiction of the
Court within which limits the appearance, application or act is made
or done, in matters connected with such trade or business only, where
no other agent is expressly authorised to make and do such
appearances, applications and acts.
12. In view of abovesaid legal proposition, it stands proved that
recognized representative may be authorized by way of power of attorney /
resolution of Board of Directors in terms of Section 291 of Companies Act,
1956 (Now corresponding section under Companies Act, 2013). The
authority of Authorized Representative under Order 3 Rule 1 & 2 CPC viz-
a-viz signing authority of authorized representative under Order 29 rule 1
& 2 of CPC has been defined in case titled Nibro Ltd. v. National Insurance
Co. Ltd., (1991) 70 Comp Case 388 (Delhi) as under:
Order 3, rule 1 provides that any appearance, application or act in or
to any court required or authorise by law can be made or done by the
party in person or by his recognized agent or by a pleader appearing,
applying or acting, as the case may be, on his behalf. Provided of
course, such an appearance, application or act in or to any court is
required or authorised by law to be done or done by a party in such
court. Where, however, there is an express provision of law, then that
provision will prevail. Thus, if an authority is given to a pleader or a
recognised agent as provided by law, the recognised agent or pleader
can file an appearance or file a suit in court if the party himself is not
in a position to file it. In my view, if a party is a company or a
corporation, the recognised agent or a pleader has to be authorise by
law to file such a plaint. Such an authority can be given to a pleader or
an agent in the case of a company by a person specifically authorised
in this behalf. In other words, a pleader or an agent can be authorised
to file a suit on behalf of a company only by an authorised
representative of the company. If a director or a secretary is authorised
by law, then he can certainly give the authority to another person as
provided under Order 3, rule 1.
The authority of a principal officer of a company in relation to suits
filed on behalf of the limited company does not extend beyond what is
laid down in Order 29 of the Code of Civil Procedure. That provision
does not entitle the principal officer of a company to file a suit on itsDigitally signed
CS (Comm) No. 37/2024 by DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. KUMAR 9/29
DEVENDRA
Date:
KUMAR 2026.02.07
16:20:48
+0530
behalf and for that the authority has to be found either in the articles
of association of the company or in the resolution of its board of
directors. In the articles of association of several companies, provision
is generally made authorising their managing directors and other
officers to file and defend suits on their behalf. Similarly, the board of
directors of a company can authorise the institution of a suit on behalf
of the company by a resolution. In the case of some companies the
articles empower the managing director or directors to appoint general
attorneys and general managers and given them authority to institute
suits on behalf of the company. But in the absence of any proof in
regard to any such power having been conferred on Shri Ram Lal
Choudhary, it is not possible to accept his statement that he was
authorised to file the suit as the principal officer of the plaintiff hotel.
It is well-settled that under section 291 of the Companies Act except
where express provision is made that the powers of a company in
respect of a particular matter are to be exercised by the company in
general meeting, in all other cases the board of directors are entitled to
exercise all its powers. Individual directors have such powers only as
are vested in them by the memorandum and articles. It is true that
ordinarily the court will not unsuit a person on account of
technicalities. However, the question of authority to institute a suit on
behalf of a company is not a technical matter. It has far-reaching
effects. It often affects the policy and finances of the company. Thus ,
unless a power to institute a suit is specifically conferred on a
particular director, he has no authority to institute a suit on behalf of
the company. Needless to say such a power can be conferred by the
board of directors only by passing a resolution in that regard.
13. Further, in another judgment titled United Bank of India v. Naresh
Kumar, (1996) 6 SCC 660, it has held that;
9. In cases like the present where suits are instituted or defended on
behalf of a public corporation, public interest should not be permitted
to be defeated on a mere technicality. Procedural defects which do not
go to the root of the matter should not be permitted to defeat a just
cause. There is sufficient power in the courts, under the Code of Civil
Procedure, to ensure that injustice is not done to any party who has a
just case. As far as possible a substantive right should not be allowed
to be defeated on account of a procedural irregularity which is
curable.
Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024 DEVENDRA KUMAR
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. KUMAR Date: 10/29
2026.02.07
16:20:56
+0530
10. It cannot be disputed that a company like the appellant can sue
and be sued in its own name. Under Order 6 Rule 14 of the Code of
Civil Procedure a pleading is required to be signed by the party and its
pleader, if any. As a company is a juristic entity it is obvious that some
person has to sign the pleadings on behalf of the company. Order 29
Rule 1 of the Code of Civil Procedure, therefore, provides that in a
suit by or against a corporation the Secretary or any Director or other
Principal Officer of the corporation who is able to depose to the facts
of the case might sign and verify on behalf of the company. Reading
Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil
Procedure it would appear that even in the absence of any formal
letter of authority or power of attorney having been executed a person
referred to in Rule 1 of Order 29 can, by virtue of the office which he
holds, sign and verify the pleadings on behalf of the corporation. In
addition thereto and dehors Order 29 Rule 1 of the Code of Civil
Procedure, as a company is a juristic entity, it can duly authorise any
person to sign the plaint or the written statement on its behalf and this
would be regarded as sufficient compliance with the provisions of
Order 6 Rule 14 of the Code of Civil Procedure. A person may be
expressly authorised to sign the pleadings on behalf of the company,
for example by the Board of Directors passing a resolution to that
effect or by a power of attorney being executed in favour of any
individual. In absence thereof and in cases where pleadings have been
signed by one of its officers a corporation can ratify the said action of
its officer in signing the pleadings. Such ratification can be express or
implied. The court can, on the basis of the evidence on record, and
after taking all the circumstances of the case, specially with regard to
the conduct of the trial, come to the conclusion that the corporation
had ratified the act of signing of the pleading by its officer.
13. The court had to be satisfied that Shri L.K. Rohatgi could sign the
plaint on behalf of the appellant. The suit had been filed in the name
of the appellant company; full amount of court fee had been paid by
the appellant-Bank; documentary as well as oral evidence had been
led on behalf of the appellant and the trial of the suit before the Sub-
Judge, Ambala, had continued for about two years. It is difficult, in
these circumstances, even to presume that the suit had been filed and
tried without the appellant having authorised the institution of the
same. The only reasonable conclusion which we can come to is that
Shri L.K. Rohatgi must have been authorised to sign the plaint and, in
any case, it must be held that the appellant had ratified the action of
Shri L.K. Rohatgi in signing the plaint and thereafter it continued with
the suit.
Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024 DEVENDRA KUMAR
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. KUMAR 11/29
Date:
2026.02.07
16:21:03
+0530
14. A combined reading of both abovesaid judgments made it clear that
pleadings must be signed by persons mentioned under Order 29 Rule 1, or
by any Authorized Agent / Representative. The authorization of authorized
representative may be in terms of Order 3 Rule 2 of CPC, or by the
Company through Resolution of Board of Directors in terms of Section 291
of Companies Act, 1956 (or corresponding section under Companies Act,
2013). However, authority of a person/s mentioned under Order 29 Rule 1
of CPC to sign pleadings must be proved through Article of Association, or
Resolution of Board of Directors as held in case titled State Bank of
Travancore v. Kingston Computers (I) (P) Ltd., (2011) 11 SCC 524 as
under:
14. In our view, the judgment under challenge is liable to be set aside
because the respondent had not produced any evidence to prove that
Shri Ashok K. Shukla was appointed as a Director of the Company
and a resolution was passed by the Board of Directors of the
Company to file a suit against the appellant and authorised Shri Ashok
K. Shukla to do so. The letter of authority issued by Shri Raj K.
Shukla, who described himself as the Chief Executive Officer of the
Company, was nothing but a scrap of paper because no resolution was
passed by the Board of Directors delegating its powers to Shri Raj K.
Shukla to authorise another person to file a suit on behalf of the
Company.
13. The Division Bench of the High Court did take cognizance of the
fact that the Company had not summoned any witness from the office
of the Registrar of Companies to prove that Shri Ashok K. Shukla was
a Director of the Company and that the minute book of the Company
had not been produced to prove the appointment of Shri Ashok K.
Shukla as a Director, but reversed the finding of the trial court on
Issue 1 on the basis of the authority letter issued by Shri Raj K.
Shukla and resolutions dated 14-2-2001 and 19-4-2001, by which the
Board of Directors of the Company had authorised some persons to
operate the bank account.
In view of abovesaid law, it stands proved that to maintain a civil suit, it
must be instituted by an authorized representative.
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 12/29
KUMAR Date:
2026.02.07
16:22:14
+0530
15. Now the case in hand has to be seen. Admittedly, Manager of the
plaintiff Ms. Prabha Malhotra has filed this suit on behalf of the plaintiff.
However, no power of attorney of AR was placed on record. PW1 Priya
Sinha has duly admitted during cross examination that the plaintiff has not
filed any power of attorney / authority of AR to institute this suit. As such,
the plaintiff failed to file power of attorney / authority of AR to file this
case. However, the plaintiff moved an application subsequently to file
power of attorney on record, which was allowed and power of attorney was
taken on record.
16. However, Ld. Counsel for plaintiff has argued that the plaintiff has
filed power of attorney of AR subsequently with the permission of the court
and has satisfy the compliance of Order 29 Rule 1 of CPC and this suit is
maintainable. On the other hand, Ld. Counsel for defendants has argued
that merely filing of document is not sufficient to prove a document and
document must be proved by witness by tendering into evidence, which is
not done in this case, due to power of attorney of AR of the plaintiff could
not be proved and due institution of this case could not be proved and suit
is not maintainable and is liable to be dismissed.
17. Admittedly, initially, the plaintiff did not file any power of attorney
of AR, Ms. Priya Malhotra on record and this fact has been duly admitted
by PW1 that power of attorney of AR was not on record. However, the
plaintiff filed an application subsequently to file power of attorney on
record, which was allowed by this court vide order dated 06.11.2025. As
such, power of attorney of AR placed on record after closure of the
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 13/29
KUMAR Date:
2026.02.07
16:22:19
+0530
plaintiff’s evidence but this power of attorney was not tendered into
evidence and could not become part of evidence. Now issue arises as to
whether merely filing of a document also proves it. Admittedly, placing of
document is one thing and proving it another. A suit may be filed by
placing of power of attorney / board resolution on record in terms of Order
29 Rule 1 of CPC but it is always subject to proving of it through evidence,
which is not done in this case.
18. Admittedly, merely filing of a document does not prove it and
evidence has to be led to prove genuineness of such document to
authenticate by the court. However, in this case, initially, the plaintiff failed
to file any power of attorney on record and has also neither examined Ms.
Priya Malhotra, AR nor PW1 has tendered this power of attorney in
evidence to prove it, due to power of attorney of AR could not be proved
merely by placing it on record.
19. No doubt, PW1 has proved her authority / Power of Attorney
Ex.PW1/A to depose before the court but she has not proved power of
attorney of Ms. Priya Malhotra, who instituted this suit on behalf of the
plaintiff. As such, in the absence of proving power of attorney of Ms. Priya
Malhotra, due institution of this suit could not be proved.
20. Ld. Counsel for defendants has further argued that the plaintiff has
not proved board resolution to prove power of attorney of PW1, which is
Ex.PW1/A. However, proving of resolution of board of directors is not
necessary, if a power of attorney has been duly notarized and authenticated
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 14/29
KUMAR Date:
2026.02.07
16:22:24
+0530
before notary public. Admittedly, power of attorney Ex.PW1/A has been
executed by Regional Manager of the plaintiff in favor of PW1 and the
defendants have not pointed out any defect in this power of attorney to
doubt it. Section 84 of BSA prescribes a presumption of authenticity in
favor of execution of power of attorney, which was to be rebutted by the
defendants and could not be rebutted merely by putting a suggestion that
executant of power of attorney Ex.PW1/A was not authorized to execute it.
As such, presumption of authenticity u/s 84 of BSA could not be rebutted
by the defendant. Even otherwise, a witness having personal knowledge
may depose without any power of attorney and PW1 has deposed on the
basis of record and her authority to depose could not be disputed. As such,
this suit has not been duly instituted by AR but PW1 has authority to
depose.
Locus Standi of plaintiff to file this suit
21. Plaintiff is an insurance company and has filed this suit on the basis
of letter of subrogation after making payment of damages against insurance
policy to the defendant no.2. However, Ld. Counsel for defendants has
raised legal issue that the plaintiff has no locus standi to file this suit, as the
defendant no.1 has no privity of contract with the plaintiff. It is further
argued that the defendant no.2 and the plaintiff have privity of contract by
virtue of insurance policy and the plaintiff has already paid claim of the
defendant no.2 and now wants to recover it on the basis of letter of
subrogation and power of attorney. It is further argued that even this suit
ought to be filed by the plaintiff in the name of the defendant no.2, if the
plaintiff wanted to recovery amount on behalf of the defendant no.2, but
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 15/29
KUMAR Date:
2026.02.07
16:22:30
+0530
suit has been filed in the name of insurance company, due to it is not
maintainable and is liable to be dismissed.
22. On the other hand, Ld. Counsel for insurance company has argued
that the plaintiff has paid damages to the defendant no.2 in pursuance of
insurance policy but the defendant no.1 caused damages to the consignment
and same is liable to be recovered from the defendant no.1, as damage was
not pursuant of Act of God. It is further argued that letter of subrogation
Ex.PW1/8 is well known document and sufficient to authorize the plaintiff
company to file this suit in its name and to seek damages on behalf of the
defendant no.2 and it is prayed that this suit is liable to be decreed.
23. Admittedly, the plaintiff is an insurance company and has filed this
suit to recover damages paid to the defendant no.2 in pursuance of
insurance policy of goods being transported by the defendant no.1 and got
damaged on the way. Ex.PW1/8 is a letter of Subrogation & Special Power
of Attorney, which has authorized the plaintiff to file this suit. However,
before deciding nature of document Ex.PW1/8 and to determine locus
standi of the plaintiff, it is necessary to go through law of subrogation in
insurance cases. Meaning of subrogation has been defined in case titled
Ganeshi Lal v. Joti Pershad, (1952) 2 SCC 373 as under;
9. If we remember that the doctrine of subrogation which means
substitution of one person in place of another and giving him the
rights of the latter is essentially an equitable doctrine in its origin and
application, and if we examine the reason behind it, the answer to the
question which we have to decide in this appeal is not difficult. Equity
insists on the ultimate payment of a debt by one who in justice and
good conscience is bound to pay it, and it is well recognised that
where there are several joint debtors, the person making the payment
Digitally
signed by
CS (Comm) No. 37/2024
DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA
KUMAR 16/29
KUMAR Date:
2026.02.07
16:22:35
+0530
is a principal debtor as regards the part of the liability he is to
discharge and a surety in respect of the shares of the rest of the
debtors. Such being the legal position as among the co-mortgagors, if
one of them redeems a mortgage over the property which belongs
jointly to himself and the rest, equity confers on him a right to
reimburse himself for the amount spent in excess by him in the matter
of redemption; he can call upon the co-mortgagors to contribute
towards the excess which he has paid over his own share. This
proposition is postulated in several authorities.
24. Further, in case titled Oberai Forwarding Agency v. New India
Assurance Co. Ltd., (2000) 2 SCC 407, it has observed that;
17. In its literal sense, subrogation is the substitution of one person for
another. The doctrine of subrogation confers upon the insurer the right
to receive the benefit of such rights and remedies as the assured has
against third parties in regard to the loss to the extent that the insurer
has indemnified the loss and made it good. The insurer is, therefore,
entitled to exercise whatever rights the assured possesses to recover to
that extent compensation for the loss, but it must do so in the name of
the assured.
25. Further in case titled Economic Transport Organization v. Charan
Spg. Mills (P) Ltd., (2010) 4 SCC 114, it has held that;
26. Subrogation, as an equitable assignment, is inherent, incidental
and collateral to a contract of indemnity, which occurs automatically,
when the insurer settles the claim under the policy, by reimbursing the
entire loss suffered by the assured. It need not be evidenced by any
writing. But where the insurer does not settle the claim of the assured
fully, by reimbursing the entire loss, there will be no equitable
assignment of the claim enabling the insurer to stand in the shoes of
the assured, but only a right to recover from the assured, any amount
remaining out of the compensation recovered by the assured from the
wrongdoer, after the assured fully recovers his loss. To avoid any
dispute with the assured as to the right of subrogation and extent of its
rights, the insurers usually reduce the terms of subrogation into
writing in the form of a letter of subrogation which enables and
authorises the insurer to recover the amount settled and paid by the
insurer, from the third-party wrongdoer as a subrogee-cum-attorney.
Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024
DEVENDRA KUMAR
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. 17/29
KUMAR Date:
2026.02.07
16:22:40
+0530
27. When the insurer obtains an instrument from the assured on
settlement of the claim, whether it will be a deed of subrogation, or
subrogation-cum-assignment, would depend upon the intention of
parties as evidenced by the wording of the document. The title or
caption of the document, by itself, may not be conclusive. It is
possible that the document may be styled as “subrogation” but may
contain in addition an assignment in regard to the balance of the
claim, in which event it will be a deed of subrogation-cum-
assignment. It may be a pure and simple subrogation but may
inadvertently or by way of excessive caution use words more
appropriate to an assignment. If the terms clearly show that the
intention was to have only a subrogation, use of the words “assign,
transfer and abandon in favour of” would in the context be construed
as referring to subrogation and nothing more.
28. We may, therefore, classify subrogations under three broad
categories:
(i) subrogation by equitable assignment;
(ii) subrogation by contract; and
(iii) subrogation-cum-assignment.
28.1. In the first category, the subrogation is not evidenced by any
document, but is based on the insurance policy and the receipt issued
by the assured acknowledging the full settlement of the claim relating
to the loss. Where the insurer has reimbursed the entire loss incurred
by the assured, it can sue in the name of the assured for the amount
paid by it to the assured. But where the insurer has reimbursed only a
part of the loss, in settling the insurance claim, the insurer has to wait
for the assured to sue and recover compensation from the wrongdoer;
and when the assured recovers compensation, the assured is entitled to
first appropriate the same towards the balance of his loss (which was
not received from the insurer) so that he gets full reimbursement of
his loss and the costs, if any, incurred by him for such recovery. The
insurer will be entitled only to whatever balance remaining, for
reimbursement of what it paid to the assured.
28.2. In the second category, the subrogation is evidenced by an
instrument. To avoid any dispute about the right to claim
reimbursement, or to settle the priority of inter se claims or to confirm
the quantum of reimbursement in pursuance of the subrogation, and to
ensure cooperation by the assured in suing the wrongdoer, the insurer
usually obtains a letter of subrogation in writing, specifying its rights
vis-Ã -vis the assured. The letter of subrogation is a contractual
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 18/29
KUMAR Date:
2026.02.07
16:22:56
+0530
arrangement which crystallises the rights of the insurer vis-Ã -vis the
assignee. On execution of a letter of subrogation, the insurer becomes
entitled to recover in terms of it, a sum not exceeding what was paid
by it under the contract of insurance by suing in the name of the
assured. Even where the insurer had settled only a part of the loss
incurred by the assured, on recovery of the claim from the wrongdoer,
the insurer may, if the letter of subrogation so authorises, first
appropriate what it had paid to the assured and pay only the balance,
if any, to the assured.
28.3. The third category is where the assured executes a letter of
subrogation-cum-assignment enabling the insurer retain the entire
amount recovered (even if it is more than what was paid to the
assured) and giving an option to sue in the name of the assured or to
sue in its own name.
29. In all three types of subrogation, the insurer can sue the
wrongdoer in the name of the assured. This means that the insurer
requests the assured to file the suit/complaint and has the option of
joining as co-plaintiff. Alternatively, the insurer can obtain a special
power of attorney from the assured and then to sue the wrongdoer in
the name of the assured as his attorney.
30. The assured has no right to deny the equitable right of subrogation
of the insurer in accordance with law, even whether there is no writing
to support it. But the assured whose claim is settled by the insurer,
only in respect of a part of the loss may insist that when compensation
is recovered from the wrongdoer he will first appropriate the same, to
recover the balance of his loss. The assured can also refuse to execute
a subrogation-cum-assignment which has the effect of taking away his
right to receive the balance of the loss. But once a subrogation is
reduced to writing, the rights inter se between the assured and the
insurer will be regulated by the terms agreed, which is a matter of
negotiation between the assured and the insurer.
35. The principles relating to subrogation can therefore be
summarised thus:
(i) Equitable right of subrogation arises when the insurer settles the
claim of the assured, for the entire loss. When there is an equitable
subrogation in favour of the insurer, the insurer is allowed to stand in
the shoes of the assured and enforce the rights of the assured against
the wrongdoer.
(ii) Subrogation does not terminate nor puts an end to the right of the
assured to sue the wrongdoer and recover the damages for the loss.
Digitally
signed by
CS (Comm) No. 37/2024
DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 19/29
KUMAR Date:
2026.02.07
16:23:03
+0530
Subrogation only entitles the insurer to receive back the amount paid
to the assured, in terms of the principles of subrogation.
(iii) Where the assured executes a letter of subrogation, reducing the
terms of subrogation, the rights of the insurer vis-Ã -vis the assured
will be governed by the terms of the letter of subrogation.
(iv) A subrogation enables the insurer to exercise the rights of the
assured against third parties in the name of the assured. Consequently,
any plaint, complaint or petition for recovery of compensation can be
filed in the name of the assured, or by the assured represented by the
insurer as subrogee-cum-attorney, or by the assured and the insurer as
co-plaintiffs or co-complainants.
(v) Where the assured executed a subrogation-cum-assignment in
favour of the insurer (as contrasted from a subrogation), the assured is
left with no right or interest. Consequently, the assured will no longer
be entitled to sue the wrongdoer on its own account and for its own
benefit. But as the instrument is a subrogation-cum-assignment, and
not a mere assignment, the insurer has the choice of suing in its own
name, or in the name of the assured, if the instrument so provides. The
insurer becomes entitled to the entire amount recovered from the
wrongdoer, that is, not only the amount that the insurer had paid to the
assured, but also any amount received in excess of what was paid by it
to the assured, if the instrument so provides.
26. In view of abovesaid law, it stands proved that the plaintiff is an
insurance company of the defendant no.2 and insured goods of the
defendant no.2 for transportation from Kala Amb Industrial Area to
Banaras (Varanasi). Defendant no.1 has issued the consignment damage
certificate Mark C to prove that the consignment was booked and got
damaged. If the consignment got damaged and the defendant no.1 has
issued Mark C and the plaintiff has also paid claim amount of the defendant
no.2 on the basis of surveyor report Mark B, then insurance company has
right to recover claim amount, provided it is covered within the preview
insurance policy. The contents of Ex.PW1/8 show that the defendant no.2
authorized the plaintiff to recover amount of Rs. 17,52,637/- paid to the
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 20/29
KUMAR Date:
2026.02.07
16:23:09
+0530
defendant no.2 in its own name or in the name of the defendant no.2 and
undertook to cooperate thereby meaning that suit filed by insurance
company is very well maintainable in its own name and the plaintiff has
locus standi to file this case.
Service of Mandatory Legal Notice under
The Carriage by Road Act, 2007
27. Admittedly this suit has been filed under The Carriage by Road Act,
2007. Initially, The Carriage Act, 1865 was dealing with such claims
arising out of road damages viz-a-viz insurance policy, but Section 22 of
The Carriage By Road Act, 2007 has repealed old Act. Section 10 of The
Carriage Act, 1865 prescribed issuance of mandatory notice before filing
any claim against carrier, which is now Section 16 of The Carriage by Road
Act, 2007. Ld. Counsel for defendants has argued that the plaintiff has
failed to serve legal notice upon the defendant no.1 within the period of
180 days, due to this suit is not maintainable. On the other hand, Ld.
Counsel for plaintiff has opposed this submission and has submitted that
legal notice Ex.PW1/6 has already served upon the defendants, due to this
claim of the plaintiff is within limitation.
28. Before deciding rival contentions, it is necessary to go through
relevant Section 16 of The Carriage by Road Act, 2007 as under:
Section.16. Notice for institution of a suit.–No suit or other legal
proceeding shall be instituted against a common carrier for any loss
of, or damage to, the consignment, unless notice in writing of the loss
or damage to the consignment has been served on the common carrier
before the institution of the suit or other legal proceeding and within
one hundred and eighty days from the date of booking of the
consignment by the consignor.
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. 21/29
DEVENDRA KUMAR
KUMAR Date:
2026.02.07
16:23:14
+0530
29. In view of abovesaid section, it is clear that no legal proceeding
including a civil suit may be filed against common carrier without serving a
legal notice u/s 16 of the Act. This Section 16 came into interpretation
before Hon’ble Apex Court in case titled Essemm Logistics v. DARCL
Logistics Ltd., (2023) 9 SCC 753 and relevant observations are as under:
10. The aforesaid Section 16 of the new Act is more or less in pari
materia with Section 10 of the Carriers Act, 1865 which has been
repealed. It also lays down that no suit or legal proceedings shall be
instituted against a common carrier for any loss of, or damage to, a
consignment unless a notice in writing of such loss to the consignment
has been served upon the carrier before the institution of the suit or
the legal proceedings within six months from the date of booking of
the consignment by the consignor. A close look to the above provision
would reveal that it not only bars the suit but also legal proceedings
which were not included in the earlier provision of Section 10 of the
Carriers Act, 1865. The other deviation is by the use of word
“consignment” in place of “goods entrusted”. In other words, both the
aforesaid provisions though Section 10 of the Carriers Act stands
repealed and ceased to be in force, provides for a notice before
instituting any suit/legal proceedings against a common carrier for any
loss or damage to the consignment. The aforesaid provision is only in
context of the institution of a suit or a legal proceeding for the loss of
or damage to the consignment and not in respect of any other kind of
loss or damage or claim other than to the loss or damage to the
consignment.
15. A plain reading of Section 16 of the new Act reveals that it is
applicable only in respect of institution of a suit or legal proceeding
against a common carrier for any loss of, or damage to, the
consignment. The use of the word “consignment” in the said provision
is very material. It denotes that the suit and legal proceedings in
connection with the loss or damage to the consignment alone are
covered by it for which purpose, a notice is mandatory. The said
provision has no application in reference to loss of any other kind or
the suit or legal proceedings instituted for recovery of damages in
respect of loss of different nature.
17. The provision of Section 16 of the new Act does not come into
play vis-Ã -vis the condition of giving a notice in respect of claims for
damages for the loss of reputation, business opportunity, etc. as such
claims are not in connection with the damage or loss to the
consignment. Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024 DEVENDRA KUMAR
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr.KUMAR 22/29
Date:
2026.02.07
16:23:20
+0530
30. After going through the abovesaid case law, it stands proved that
Section 16 is applicable qua damages against common carriage and not for
any other types of damages like damages for loss of reputation, business
opportunity and associated wrongs, but 6 months’ notice is mandatory
before filing of any claim of damages arising out of the consignment
damage by road carriage.
31. Admittedly, in this case, the consignment was booked on 14.02.2022
and legal notice Ex.PW1/6 was issued on 20.09.2022 and dispatched on
22.09.2022 at 12.35 PM. Accident which caused damage to the
consignment occurred on 15.02.2022 and limitation to serve legal notice
was within 180 days i.e. upto 15.08.2022, whereas issued on 20.09.2022.
As such, legal notice Ex.PW1/6 was served beyond the period of 180 days
and suit is bad for the want of mandatory legal notice. No doubt the
defendant no.2 also served a notice upon the defendant no.1 but neither the
plaintiff nor defendant no.2 has relied upon this notice. Even otherwise this
legal notice was vague and service of any legal notice by the defendant
no.2 could not be proved and suit is barred by section 16 of The Carriage
by Road Act, 2007.
Negligence of common carrier during accident
32. Plaintiff has alleged that the defendant no. 2 insured goods / glasses
against insurance policy Ex.PW1/1 and booked the consignment with the
defendant no.1 to transport the consignment from Kala Amb Industrial Area
to Banaras (Varanasi) but the consignment could not reach to its
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 23/29
KUMAR Date:
2026.02.07
16:23:26
+0530
destination. It is further alleged that goods were damaged during accident
and the plaintiff has alleged that accident occurred due to negligence of
driver of the defendant no.1. It is further alleged that since accident
occurred due to negligence of driver of the defendant no.1, accordingly the
defendant no.1 is liable to pay damages. On the other hand, Ld. Counsel for
defendant no.1 has argued that goods got damaged due to Act of God, as a
Nilgai suddenly came in front of truck and caused accident and it was not
negligence of driver. In support of his arguments, Ld. counsel for defendant
no.1 has cited DD entry lodged with Kala Amb Police Station by which it
was concluded that accident occurred due to fault of Nilgai. It is prayed
that this claim is not maintainable.
33. Ld. Counsel for defendant no.1 has argued that this accident occurred
as one Nilgai suddenly came in front of truck and driver could not manage
truck and overturned. However, this fact could not be proved. Though
DW1 has relied upon GD No. 8 dated 15.02.2022 lodged with PS Kala
Amb Police Station as DW1/1, yet this GD entry got de-exhibited after
objection of the plaintiff that GD was not on record. However, while going
through the case file, it was revealed that GD No.8 was on record. The
contents of GD shows that GD was recorded on the basis of statement of
driver Prem Singh and nothing fishy was found during the incident.
However, the defendant no.1 has neither examined any eye witness to this
incident nor driver of vehicle to prove mode and manner of accident,
whereas DW1 was not eye witness to incident, due to it could not be
proved that this accident did not occur due to negligence of driver of the
defendant no.1. As such, there is no evidence on record to prove that
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. 24/29
DEVENDRA KUMAR
KUMAR Date:
2026.02.07
16:23:33
+0530
accident occurred due to sudden appearance of Nilgai in front of truck and
not any other reason.
34. So far as legal proposition regarding negligence during accident is
concerned, sections 12 & 16 of The Carriage by Road Act, 2007 deal with
such proposition as under:
Section-12. Conditions limiting exonerating the liability of the
common carrier.–(1) Every common carrier shall be liable to the
consignor for the loss or damage to any consignment in accordance
with the goods forwarding note, where such loss or damage has arisen
on account of any criminal act of the common carrier, or any of his
servants or agents.
(2) In any suit brought against the common carrier for the loss,
damage or non-delivery of consignment, it shall not be necessary for
the plaintiff to prove that such loss, damage or non-delivery was
owing to the negligence or criminal act of the common carrier, or any
of his servants or agents.
(3) Where any consignment has been detained for examination or
scrutiny by a competent authority and upon such examination or
scrutiny it is found that certain prohibited goods or goods on which
due tax was not paid or insufficiently paid have been entrusted to the
common carrier by the consignor which have not been described in
the goods forwarding note, the cost of such examination or scrutiny
shall be borne by the consignor and the common carrier shall not be
liable for any loss, damage or deterioration caused by such detention
of the consignment for examination or scrutiny:
Provided that the onus of proving that such incorrect description of
goods in the goods forwarding note was received from the consignor
shall be on the common carrier.
Explanation.–For the purposes of this section, “competent authority”
means any person or authority who is empowered to examine or
scrutinise goods by or under any law for the time being in force to
secure compliance of provisions of that law.
Section-17. General responsibility of common carrier.–Save as
otherwise provided in this Act, a common carrier shall be responsible
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. 25/29
DEVENDRA KUMAR
KUMAR Date:
2026.02.07
16:23:40
+0530
for the loss, destruction, damage or deterioration in transit or non-
delivery of any consignment entrusted to him for carriage, arising
from any cause except the following, namely:–
(a) act of God;
(b) act of war or public enemy;
(c) riots and civil commotion;
(d) arrest, restraint or seizure under legal process;
(e) order or restriction or prohibition imposed by the Central
Government or a State Government or by an officer or authority
subordinate to the Central Government or a State Government
authorised by it in this behalf:
Provided that the common carrier shall not be relieved of its
responsibility for the loss, destruction, damage, deterioration or non-
delivery of the consignment if the common carrier could have avoided
such loss, destruction, damage or deterioration or non-delivery had the
common carrier exercised due deligence and care in the carriage of
the consignment.
35. In fact, section 17 of the Act prescribes certain grounds which may
be considered to escape liability to pay damage of the consignment.
Defendant no.1 has attempted to bring this accident within Act of God to
escape liability to pay damages, however suddenly coming of a Nilgai in
front of running truck and overturning it suggests excessive speed of truck
and resulted accident. In fact, such act cannot be an Act of God. Act of
God, as clear by its name is which is not in hand of a human being, like
flood, rainfall, frost, drought, wind, hurricane, earthquake etc., are the acts
of nature. As such, those acts which cannot be anticipated by its magnitude
and consequences are covered by such acts, whereas in this case, driver of
the defendant no.1 was passing through a forest and could have easily
anticipated that any animal may suddenly come in front of vehicle and was
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. DEVENDRA KUMAR 26/29
KUMAR Date:
2026.02.07
16:23:46
+0530
supposed to drive in manageable speed, whereas overturning of vehicle
speaks lot about negligence of driver and it was not an Act of God.
Whether plaintiff has proved insurance policy to claim damages
36. Plaintiff has claimed recovery of damages arising out of Marine
Cargo Open Police No. 32010021210200000011 valid during the period
w.e.f. 15.01.2022 to 14.01.2023, but Ld. Counsel for defendants has argued
that the plaintiff has not proved actual insurance policy to raise this claim.
It is further argued that a wrong policy PW1/1 has been proved by the
plaintiff and PW1 has admitted during cross examination that it is a wrong
policy, due to suit is not maintainable. On the other hand, Ld. Counsel for
plaintiff has argued that the plaintiff has already filed correct insurance
policy on record with permission of the court, due to the plea taken by the
defendants is not sustainable.
37. Admittedly the plaintiff has filed this suit regarding Marine Cargo
Open Police No. 32010021210200000011 valid during the period from
15.01.2022 to 14.01.2023. However, PW1 has proved policy Ex.PW1/1 i.e.
Policy No. 32010021200200000016 valid for the period from 15.01.2022
to 14.01.2023, which is a different policy to Policy No.
32010021210200000011. PW1 has admitted during cross examination that
the plaintiff has filed a wrong policy on record, however after PE, the
plaintiff moved an application to place on record correct insurance policy,
which was allowed and correct insurance policy was taken on record.
However, merely filing of insurance policy could not prove it, as PE was
Digitally
signed by
CS (Comm) No. 37/2024 DEVENDRA
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. 27/29
DEVENDRA KUMAR
KUMAR Date:
2026.02.07
16:23:52
+0530
already over when this policy was filed on record and the plaintiff did not
attempt to prove it by tendering into evidence. As such, insurance policy
proved on record and survey report Mark B are pertaining to different
policies.
38. As such, it stands proved that the defendant no.2 booked the
consignment of glasses with the defendant no.1 to deliver it at Varanasi, but
it got damaged due to negligence of the defendant no.1. However, the
plaintiff has failed to prove due institution of this suit for the want of power
of attorney of Ms. Prabha Malhotra. Further, this suit is also barred u/s 16
of The Carriage of Road Act, 2007 for the want of valid legal notice.
Plaintiff has also proved a wrong insurance policy, accordingly, the plaintiff
has failed to discharge the onus to prove this issue and issue no.1 is decided
in favor of the defendants and against the plaintiff.
39. ISSUE NO. 2:- The onus to prove this issue was fixed upon the
plaintiff but the plaintiff has failed to discharge onus to prove issue no.1,
accordingly the plaintiff is not entitled for any relief and has failed to
discharge the onus to prove issue no. 2 and this issue is also decided in
favour of the defendants and against the plaintiff.
40. Relief: – Since the plaintiff has failed to discharge the onus to prove
both issues, accordingly the plaintiff is not entitled for any relief, hence this
suit is hereby dismissed. Decree sheet be prepared. No order as to cost.
Digitally
signed by
DEVENDRA
CS (Comm) No. 37/2024 DEVENDRA KUMAR
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. KUMAR Date: 28/29
2026.02.07
16:23:57
+0530
41. File be consigned to Record Room after necessary compliance.
Digitally signed
by DEVENDRA
DEVENDRA KUMAR
KUMAR Date:
ANNOUNCED IN OPEN COURT 2026.02.07
16:24:02 +0530
ON 7th day of February, 2026
(DEVENDER KUMAR)
District Judge (Commercial Court-01)
East District
Karkardooma Courts, Delhi
CS (Comm) No. 37/2024
The New India Assurance Co. Ltd. Vs. Yadav Transporter & Anr. 29/29
