High Court · 2019

Judgment

This appeal is preferred assailing the judgment, dated 29.10.1999, passed in O.S.No.53 of 1995 on the file of the court of Principal Senior Civil Judge, Ongole, by virtue of which the court below dismissed the suit filed by the plaintiff, who is the appellant herein.

2. Heard the counsel for the appellant and the counsel for the respondent.

The facts of the case, in brief, are as follows: The plaintiff is a contractor and an agreement was entered in between the plaintiff and the defendant. The defendant issued proceedings, dated 18.01.1992, specified from 10.12.1991 to 09.05.1992 for five months. Plaintiff paid security deposit and provided vehicle and defendant provided tanker. Cleaning of the vehicle has to be done by the defendant and their branches. When the milk is transported, plaintiff handed over the vehicle to the defendant on 09.05.1992. From

10.05.1992 defendant retained the vehicle with him due to pressure of work and summer, inspite of the demand made by the plaintiff for surrender of the vehicle. On 27.05.1992, the defendant dispatched the vehicle and vehicle broke down at Kothapalli near Suryapet. Immediately, the driver of the vehicle informed to the Suryapet Milk Chilling Centre and as there is no vehicle the driver rushed to Hyderabad and informed the same. The MPF, Hyderabad sent a 2 vehicle to Kothapalli and as they did not bring the transfer apparatus, again the driver went to Hyderabad and brought the same. Before transporting the milk it was checked by the Suryapet Milk Chilling Centre authorities and the vehicle 2959 was returned to Ongole after taking preliminary repairs. Plaintiff received the letter dated 06.06.1992 stating that the milk was spoilt. Plaintiff is not responsible for the damages. The defendant authorities kept the vehicle with them. On

08.07.1992 he received a letter whereby the defendant authorities deducted a sum of Rs.88,438/- towards damage of milk and an order, dated 23.06.1992 by extending the contract of the vehicle from

10.05.1992 to 15.06.1992 was received. The plaintiff gave a reply on

09.06.1992 for the letter and issued a notice, claiming the hire charges for the vehicle at Rs.1691/- per day for the period from 10.05.1992 to

15.06.1992 and also notice on 15.07.1992 claiming Rs.88,438/-. But the defendant gave a reply stating that the contract is for six months. Since the plaintiff was a Contractor to the defendant, the defendant should provide minimum mileage to the plaintiff and as such the plaintiff got issued notice for the damages on 27.03.1992, but there was no reply for the same. Several notices were issued for difference of mileage. He also filed a suit in O.S.No.24 of 1992 against the defendant. The defendant took vengeance against the plaintiff and no payment was made. Hence, he is liable for the amount. The security deposits of the plaintiff were also impounded. The defendant filed written statement denying the averments of the plaintiff and contending that the suit is barred by limitation. It was 3 further submitted that the transport contract of the plaintiff was for a period of six months and not for five months and as per the tender notice published in the newspapers. The tender schedules also show the tender period as six months and the security deposit amount also was for six months. The plaintiff is trying to take advantage of the typing mistake of the letter ‘5’ instead of ‘6’. The milk got spoilt due to the fault and negligence of the vehicle. The vehicle over stayed up to about 11:00 PM on 29.05.1992 on the route due to the fault of the plaintiff and his agents. The plaintiff himself was not aware how the milk was spoilt and he failed to give sufficient reason. The plaintiff has knowledge that the milk has to be delivered within 18 running hours and due to the faulty vehicle of the plaintiff and inaction of his agents the milk was spoilt only in the tanker of the plaintiff but not in the MPF Tanker. Hence, he is not liable to pay any amount to the plaintiff. Since the contract period ends by 09.06.1992, it is the duty of the plaintiff to remove the barrel from the chassis and take the vehicle. The defendant waited for some time and removed the barrel on 15.06.1992 and the plaintiff is stopped from claiming hire charges. Since the plaintiff filed O.S.No.139 of 1992 seeking injunction in respect of the claim of Rs.62,630.40/-, he would again ask for a decree in this suit.

4. Based on the above rival pleadings, the court below framed the following issues for consideration:

1. Whether the plaintiff is entitled for recovery of the suit amount as prayed for.

2. To what relief 4

5. On behalf of the plaintiff, PW.1 was examined and Exs.A1 to A27 were marked. On behalf of the defendant, Dws.1 to 3 and Exs.B1 to B13 were marked. The court below after considering the evidence adduced by the parties both oral as well as documentary, passed the impugned judgment dismissing the suit of the plaintiff.

6. Aggrieved by the same, the appellant/plaintiff is before this court by way of this appeal on the grounds that the court below ought to have seen that as per the contract, period is five months only and as such it cannot be said that it is six months. The court below ought to have held that the contract period expired by 09.05.1992 and thereafter the respondent is liable to pay damages to the appellant for the period to which the vehicle was with the respondent i.e., up to 15.06.1992 at the rate of Rs.1791/- per day.

7. Now the points for consideration are: 1) Whether the contract is for a period of five months or six months. 2) Whether the judgment of the court below is sustainable. 3) To what result.

8. POINT NO 1: The evidence shows that the plaintiff is a transport contractor and the contract was concluded on 09.05.1992. The defendant continued with the possession of the vehicle upto 15.06.1992. The vehicle broke down on 27.05.1992 at Kukatpalli. The plaintiff is the supplier of the milk, which later was found spoilt. The documents placed before the court shows that the contract period is six months and 5 not five months as claimed by the plaintiff. Ex.B7, which is the agreement between the plaintiff and the defendant, clearly shows the contract period as six months.

9. Hence, it is clear from the above that the contract is for six months and consequently, the ground raised in the appeal that damages ought to have been awarded to the appellant from 09.05.1992 onwards till the vehicle was returned, gets answered and the defendant would not be liable for any damages. Absolutely, no cogent argument was advanced by the counsel for the appellant to say that the defendant is liable for damages.

10. In view of the above discussion, this court sees no merit in this appeal and is liable to be dismissed.

11. Accordingly, the Appeal Suit is dismissed. As a sequel, the miscellaneous applications pending, if any, shall stand closed. July , 2019 LMV ______________ T. RAJANI, J 6 SMT JUSTICE T.RAJANI 107 APPEAL SUIT No.66 of 2000 July 17, 2019 LMV