O of the Carriers Act v. Whether the ptaintiffs are entitled for the suit claim' vi. To what relieP

Judgment

HON'BLE SRI JUSIICE NAGESH BHEEMAPAI(A CCCA No. 17O OF 2fiX) JU GME If T: ThisAppealassailsJudgementandDecreedated o2.o2.lggg in o.s.No.313 0f 1991 0n the file of the tII senior Civit Judge, City Civil Courts, Secunderabad'

2.Forbrevit5r,partiesarereferredtoasarrayedinthe suit. The averments in tl.e plaint are , th: 1st plaintiff is 3. the insurance company, during the course of its business, it issued. a marine pohcy covering the risk of the consignment booked under GR.No.66653 dated 18.10.1988; the said consignment was entrusted by M/s Laxmi Machine Works, coimbatore for its safe carriage to Abohar, Punjab to the 2'd plaintiff Company; defendant accepted the consignment for safe delivery; goods consist of seven cases of ring frames, sections and spares, the said consignment was delivered in a damaged condition, therefore, the 2na plaintiff preferred a claim on the defendant and carrier by its letter dated 08.12.1988, for the value of the damaged goods; defendant issued a damage certificate to ttre 2nd plaintiff on t4-12-1988, in spite of the notice, he failed to make payment to the 2na plaintiff; as the gogds were insured, the 2od plaintiff preferred a claim with the t \ \ \ *J 2 n' ts --,ad

lst plaintiff; th€ 1st plaintiff assessed the dams.ge with the help of an independent surveydr and paid Rs. L,g5,76Ol- to the 2nd plaintiff who, having. received it, authorised the lst plaintiff to recover the said amount from the defendant.

4. On the other hand, defendant Iiled written statement contending that pa5rment made by the 1st plaintiff to tlre 2'nd plaintiff is voluntar5r; consignor has no subsisting interest in the consignment as the consignee has taken detivery of the goods, the consignee, having received the damage from the insurance company, is estopped from making any further claim from defendant, there is no legal evidence about the damage caused to tlre goods; there is no material before the court to assess the damage independently; the surveyor report has no evidentiary value in the eye of law; suit claim is barred by limitation and for want of a statutory notice under Section 10 of the Carriers Act; therefore, the suit is liable to be dismissed.

5. The trial Court, based on the pleadings referred to above, framed the issues which are as under: i. Whether the 2na plaintiff is estopped from raising any claim. , ii. Whether there is any damage to the consignment due to the negligenc€ on tlre part of tlre defendant. iii. Whether the Ist plaintiff subrogated to the rights and remedies of tl:e 2nd plaintiff against the defendant. / I 3 iv. whether the suit is barred by limitation and foc want of notice under section 1O of the Carriers Act. ' v. Whether the ptaintiffs are entitled for the suit claim' vi. To what relieP

6. The triat Court, based on the pleadings as well as the material evidence available on record, held the issues in favour of ptaintiffs and decreed the suit for Rs.L,95,76O/- with costs; interest is granted at 60/o per annum from the date of suit till the date of realisation. Aggrieved thereby, this Appeal by the Appellant/Defendant.

7. Heard Sri Srinivas Chitturu, lear.ned counsel for the Appellant/defendant and Sri Kota Subba Rao, learned Counsel for the Respondents and perused the record g. It is to be noted that on the issue of negligence, defendant is, admittedly, a carrier governed by the Carriers Act, 1865 (for short the Act) , as on the date of cause of action ie. 18.10.1988, on which date the goods were entrusted to defiendant and the subsequent date on which t]re damaged goods were received, the matter stands governed by the Act. The carriage by Road Act,2oo7, which was brought into force on 2g.og.2oo7 by which carriers Act, 1865 was repealed, has g- [t is relevant to note that according to section 9 of the Carriers Act, in any suit brought for d.amages or non- a \\ 4 n, delivery of goods, entrusted to a carrier for transportation, it is not necessar5r for plaintiff to pncve that such loss or damage was owing to the negligrnce of the carrier or its servants. Defendant is bound by this provision and therefore, it has to be presumed that loss or damage pleaded by plaintiffs had occurred only due to the negligence of defendant or its servants. Defendant did not lead any evidence to show that it cannot be made liable on the ground that it is not negligent or any other ground contemplated under the Carriers Act.

10. The main contention of defendant, as argued by their counsel is that even though it cannot escape from the liability for the goods damaged, that, by itself, is not suflicient to fasten it with a liability of Rs. L,95,76O l- treating it as the value of the damaged goods as plaintiffs cannot, on the evidence tet in by them, be said to have proved the same i.e. the value of goods is Rs.1,95,7601-. Elaborating on this contention, learned counsel for defendant pointed out tl:at plaintiffs, except examining P.W.l (the Law Offrcer) and filing the surveyor report (Ex.AS), which was given by the surveyor appointed by the lst plaintiff who surve5red the damage unilatera,lly without inviting defendant to sen& its representative to attend the said survey and consider its objections, cannot be accepted as proof of value of the damaged goods. -fi 5 It is further argued that the 1st plaintiff did,not care

11. to examine the surveyor as a witness and he did not examine anybody from the 2'd plaintiff to prove the value of the damaged goods and also payment made to it, therefore, the claim for Rs. l,95,760l- should be rejected as not proved' Since there is no other convincing evidence to show as to what could be tlle value of the damaged. goods, the suit claim is liable to be rejected in toto on that ground alone. [n support of the above contention, learned counsel L2. for defend.ant placed reliance on the judgment of the Division Bench of the High Court of Kerala in Assoctated Tlvrrtsgtott corporottlon hfi. Ltd. v. IfutTono;l /f,16,ut,g,lse @npong LtA't relnrted- In this connection, he pointed out that the trial Court placed much reliance on Ex.A7 certificate issued by the defendant treating it as an admission of defendant liability for the suit claim which is not correct and that the said certificate even by its recital would read that defendant gave it only on the basis of the information given by the 1st plaintiff insurer only for the purpose of giving the said certificate and it cannot be treated as an admission of liability regarding the value of the goods damaged. He also pointed out that reliance Ptaced on Exs' A1, A4, A7, A8, A9 and A11 and the decision of Madras High ' tggg-TLxER- o -496 6 A. \--- Court in Ttnryo:tl Venlco,tz'clro.lapathg l-orry Serutces o. Ttl.e rfrelut rndia rnsutzrncr compang Limtte& by the trial court cannot also be said to be correct.

13. on the other hand, learned counsel for plaintiffs argued that Ex.A5 survey report was given by licensed insurance surveyor and loss assessor, therefore, it cannot be brushed aside. He further argued that Ex.AT certificate, admittedly, given by defendant should be treated as an acknowledgement of its liability, including the value shown as the value of the damaged goods and the fact t]'..at the l"t plaintiff paid the said amount to the 2od plaintiffunder Ex.All are all circumstances which prove the case of plaintiffs with certaint5r and therefore, tJre trial court rightly decreed the suit and the same does not call for interference. L4- Now the point for considerati.,on is whether the trial Court was right in quantitnng ttre loss at Rs. l,95,Z6(,l- on the strength of Ex.A7 certilicate and Ex.AS surveyor report and upholding the suit claim

15. The judgrnent in Assoc tated ?:rvrrrsport corTroration ca,se {referred supra) has been more or less given on similar facts. That was also a case where the trial court decreed the suit of the insuranace company which it brought as a ' *yad1 r M{J 64 | l { les8l Acc- 1o2 /n 7 subrogee and the judgement reads that apart from e certificate issued by the carrier, the trial court relied upon merely a certifrcateissuedbythesulveyorappointedbytheinsurance comparry and the proof of payment made by the insurance companytotheowTlerofthegoods.Rejectingthecontentionof the insurance company, in that case that tl.e certificate issued bythesurveyorandthefactthatitpaidtheamounttothe ownerofthegoodswassuflicientproofoft}revalueofthe damaged goods, the Court observed as under: '...... No notice is issued to the defendant before the suwey is made. The surveyor who prepared exhibit'A7 has not been examined to prlovethecontentsofexhibitAT'Moreover'thereisnotevenformal evidenceadducedbythe2naphintiffastothequantumofdamageswho aloneiscompetenttoprovethesame.Theonlywitnesse:raminedonttre sideoftheplaintiffsisPW.lwhoisanoffrcerofthel"tptraintiff insurancecompany.Hecannothaveanydirectknorrledgeregarding thesemattersandhisevidenceisnotsufficienttoprovethequarrtumof damages.Themerefactthatthe["tplaintiffpaidtheamounttotlre2"d plaintiff will not be suflicient evidence, nor will it bind the defendant whoisultimatetyliablefordamages.[nthesecircumstances'weane constrained to hold that there is absolutely no evidence to prove ttre quantumofdamagesandthedecreegrantedbythel.owercourt,fixing tJeedamagesat{9,2021-iswithoutanyevidenceandisliabletobeset aside.........."

16.Withtheabovereasoning'theDivisionBenchofthe HighCourtofKeralaallowedtheAppealofthetransport company. tn the considered opinion of this Court, the reasoning \ \ 8 in the above decision regarding the requirement of proof of the value of damaged goods is correct. The facts in the present case so far as Ex.AS survey report is concerned, are simitar. It appears, the lst plaintiff insurance cpmpany thought that it did not examine the surveyor to prove the survey report and the loss arrived at by him and further, the surrrey report also shows that it was done unilaterally without participation of the representatives of the defendant company to participate in the survey and give it an opportunity to consider its point of view or objections on the aspect. The l"t plaintiff merely examined PWl, who has no knowledge about the value of the damage to the goods. tt also did not examine any competent from the 2^d plaintiff who could speak about the same, but merely relied upon Ex.Al I receipt grven by the 2na phintiff for payment received by it. The transaction covered by Ex.All is a matter between plaintiffs I and 2 and unless there is direct evidence to show that the value of the damaged goods works out to the amount claimed by plaintiffs that cannot be sufficient basis to fasten the defendant with that liabitity. L7. Hence, what is to be looked into is whether Ex.A7 certilicate which was admittedly given by the defendant can be treated as admission or acknowledgement that it aCcepted the value of the damaged goods at Rs. 1,95,760/- rnenti.oned in Ex. // i-) 9 A7 certificate. Upon perusing the said certificate, it cannot, in the opinion of this Court, be treated as an admission or acknowledgement by defendant that value of the goods damaged is Rs.1,95,760/-. In fact, the above endorsement can be treated as defendant admitted that its vehicle in which the goods were carried met with an accident within the limits of the Police Station mentioned and the same goods were damaged and nothing more. It should also be noted that defendant had mentioned specifrcally in the above endorsernent that sunrey was conducted by the New India Assurance Company Limited without its participation and that survey has estimated the loss mentioned in the endorsement, therefore, it was mentioning it' It appears, the l"t plaintiff got the above endorsement from defendant to settle the claim of the 2nd plaintiff, but as contended by the defendant counsel, it cannot be treated as admission of the defendant liability for the amount mentioned in Ex.A7 holding that it also agreed that value of the loss as estimated by the surveyor or claimed by the lst plaintiff'

18. It is pertinent to mention here that an admission to fall under Section 17 of the Evidence Act and become relevant and to operate against the person making it, the same should be clear and unequivocal in order to find the person making it' In the course of arguments, Iearned counsel for defendant pointed \ \\ l0 f\\ out the above aspect and argued that endorsemerlt in Ex.A7 certificate cannot be treated as an acknowledgement or admission on defendant's part that it had admitted the value of the goods damaged is Rs.1,95,760/-. At best, it can be treated that an endorsement in Ex.A7 would m€an to show only that defendant merely acknowledged the truck accident and damage to the goods, but not the value of the damaged goods. Theref,ore, Ex.A7 cannot be treated as an ad.mission or an acknowledgement on the part of defendant.that it had also agreed with the estimate of loss or the value of the goods damage as given by the surveyor which was relied upon by the 1st plaintiff.

19. One other important aspect is that the. l"t plaintiff failed to examine the surveyor nor did it examine anybody from the 2"d plaintiff to prove that the value of the gmds damaged was Rs. t,g5,76}l-. Bx.AS survey report shows that defendant was not invited to be present at the time of'survey. The sunrey report also shows that it was not conducted at the premises of defendant, but it was conducted at tJ e place of the 2od plaintiff where the goods were delivered. Further, it is not the case of the 1st plaintiff or its officials that notices were sent to tlre defendant informing about the date of conducting tlre survey and defendant received it but failed to appear, and this supports / / _ - -. - ,: .:- 1-:+-]-t.. ,-ji-aq 11 defendant's version that they did not participate in the survey. Even assuming for a moment that the lst plaintiff is entitled to have a unilateral survey conducted without the participation of the defendant, still, it ought to have examined the surveyor and also the 2na plaintiff to prove the value of the damaged goods and should have made available the surveyor for cross- examination by the defendant.

20. Now coming to the judgment of Madras High Court in Tttztgtartl Venlcoltocha.lapdtttg Lotry seruice's clr,*, which was relied upon by the trial Court, a learned single judge of the Madras High court held that though the insurance company did not examine the surveyor or the 2nd plaintiff therein' ie. consignee of the goods, the lst plaintiff, which was also the New Indian Assurance Company Limited being a statutory body cannot be expected to have any need to create a false receipt, showing that it paid the amount to the consignee (insured) of the goods, and therefore on that premise, it proceeded to uphold the decree. What is important is that the law regarding proof of damages remains the same, whether the plaintiff is a statutory body or a government company or a non-government company or a Private individual, this Court cannot distingUish between them on presumptions and assumptions having regard to the status and character of plaintiff. The above decision of the t2 s learned single judge of the Madras High Court czrnnot be said to stand to reason and does not command acceptance. FurtJrer,. the view expressed by the Division Bench of the Kerala High Court in Assoctated fransport Cotporztlon cqse which is extracted supra, regarding the effect of non-examination of surveyor and the consignee of the goods for proving damage to the goods and their value stands to reason and is in accordance with [aw, hence, the same is followed. Here, it should be mentioned that Exs. Al , A4, A7, A8, A9 and.A,11 merely speak about occurrence of accident and damage to some goods of tJ:e 2na plaintiff, but they do not speak of the value of the same and no one has been examined in order to ascertain the value of the goods. Hence, the trial Court cannot also be said to be correct in placing reliance upon the same in granting the decree.

21. It is settled principte of taw that in a claim for damages based either on breach of contract as in tl,e pnesent case, which is to transport the goods without camsing any damage to them or in a tort, plaintiff should not only prove the breach of the contract or the tort, but it should also prove the actual damage caused and the quantum of damages.which it claims. The said view of this Court is also fortified by the judgment in TYansport Corporation of Indta Ltd. v. Thc libw India Assurance Co. Ltd.[C.C.C.A.No.18 of L996, vide its order f ( W t3 '----'----::l dated 17.2.20121. Therefore, the 1st plaintiff can be said. to have failed in this case in proving the second requirement i.e- proving the actual damage caused and the quantum of damage which it claimed. The evidence let in by the plaintiffs does not also show that its ctaim for damages, even for any lesser amount can be upheld. Therefore, it follows that plaintiffs claim for the value of the damaged goods must be rejected as not proved by the plaintiffs. In the lrght of the aforesaid reasons, the Appeal is

22. allowed. The judgement and decree of the trial court is set aside and the suit is dismissed. No costs.

23. consequendy, the miscellaneous Applications shall stand closed. \ To SD'. K.SHYLESHI JOINT REGISTRAR 6 ,,TRUE COPY" SECTION OFFICER l.ThelllseniorCivilJudge,CityCivilCourts,secunderabad.(withrecords) 2. One CC to SRI' SRINIV'AS CHITTURU' Advocate IOPUC] 3. One CC to SRI' KOTA SUBBA RAO' Advocate [OPUC] 4. Two CD CoPies W kul/PSL .\ HIGH COURT D ATED:0811OnA25 +DECREE JI'DGMENT CCCA.No.{ 70 of 2000 S [i I j Jhl{ ?iiB \ 7 t 1,1I ll - ALLOWING THE CCCA WITHOUT COSTS b I