Ltd., by power of attorney and subrogee M/s.United India Insurance Co. Ltd v. Assam Bengal Roadways Ltd.,Madras

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 06.12.2007CORAM:The Honourable Mr.Justice S.TAMILVANANA.S.No.409 of 19961. United India Insurance Co. Ltd. Rep. By Divisional Manager Ranipet.2.Chemidye Manufacturing Co. P. Ltd., Ranipet formerly known as Chemidye Trading Co. Ltd., by power of attorney and subrogee M/s.United India Insurance Co. Ltd. Rep. By its Divisional Manager, Ranipet... Plaintiffs/Appellants -vs-Assam Bengal Roadways Ltd.,Madras rep. By itsRegional Manager ... Defendant/RespondentThis appeal is filed under Section 96 order 41 Rule(1) C.P.C. against the judgment and decree dated 28.04.1995 inO.S.No.9 of 1991 on the file of Subordinate Judge, Ranipet.For Appellants : Mr.G.Guruswami Nathan For Respondent : No AppearanceJUDGMENTThis appeal has been preferred against the judgment anddecree dated 28.04.1995 passed in O.S.No.9 of 1991 on the fileof Subordinate Judge, Ranipet.2.The brief facts of the case are as follows:The appellants herein were the plaintiffs in the suit,before the trial Court. The second appellant herein hadentrusted a consignment of 50 barrels of DIOCTYL MALEATE,Chemicals, weighing 10 metric tonnes, with the respondentherein for safe carriage by road, from Ranipet to Bombay todeliver the same to M/s.PDI Chemicals Pvt. Ltd., at Bombay.The respondent herein had accepted the consignment for safe https://hcservices.ecourts.gov.in/hcservices/ carriage and issued Goods Consignment Note dated 30.12.1988,which is marked as Ex.A2. The second appellant had alsoinsured the consignment with the first appellant/United IndiaInsurance Company Limited against the loss/damage in transit.A copy of the policy dated 09.05.1988 was marked as Ex.A1.The aforesaid consignment was carried by the respondent in thetruck bearing registration No.MWU 5188, which met with anaccident at Gobachatram near Hosur, en route from Ranipet toBombay. As a result of which, there was damage and shortagein the consignment for which the respondent had issuedshortage/damage certificate dated 10.01.1989 which is markedas Ex.A7. 3.According to the second appellant, as per hispleadings, out of the said consignment, 13 barrels weretotally damaged, six barrels were in leaking condition and assuch there was a shortage/damage, and the loss was assessed tothe tune of 3169/-Kgs. of chemicals and a licensed surveyorassessed the loss at Rs.1,97,816.15 by his report.4.On the above averments the appellants herein had filedthe suit against the respondent, seeking damages to the tuneof Rs.1,81,205/-, On the side of the appellants/plaintiffs,apart from examining P.Ws.1 and 2, documents, Exs.A.1 to A.14were marked and on the side of the respondent/defendant nowitness was examined and no documents were marked.5.The trial Court, considering the facts andcircumstances of the case, and also the evidence, held thatthe appellants/plaintiffs have not established their claim andaccordingly dismissed the suit with costs, aggrieved by whichthis appeal has been preferred by the plaintiffs.6.The points that arose for consideration in this appealare:"Whether the appellants haveestablished the negligence on thepart of the public carrierrespondent/defendant?(ii)Whether the first appellantis entitled to the damages as prayedfor in the suit?7.Mr.G.Guruswami Nathan, learned counsel appearing forthe appellants, would contend that the trial Court, withoutconsidering the case on merits, has dismissed the suit solelyon the ground that the consignment had been sent at owner'srisk. According to the learned counsel for the appellant, the https://hcservices.ecourts.gov.in/hcservices/ accident had occurred near by Krishnagiri, within the State ofTamil Nadu, only due to the negligence on the part of therespondent. He has further submitted that as per Section 9of the Carriers Act, 1865, in case of non-delivery of theconsignment sent through common carrier, when the loss ordamage is established, it shall not be necessary for theplaintiff, to prove that such a loss, damage or non-deliverywas owing to the negligence or criminal act of the carrier.According to the learned counsel for the appellant, the burdenis upon the respondent/carrier to establish that the damagewas not caused due to their negligence.8.The learned counsel appearing for the appellant furthersubmits that though the consignment was sent at owner's risk,the public carrier is liable to pay damages to the appellant,since the damage was caused due to the negligence of thepublic carrier and it's officials. In support of hiscontention, he relied on the following decisions:Patel Roadways Ltd. vs. Seshasayee Industries Limitedreported in (2004(4) CTC 273), United India Insurance Co.Ltd., and another vs. Economic Roadways Corporation in (2001(1)L.W. 301) and Thiruppathi Venkatachalapathy Lorry Servicevs. The New India Assurance Company Ltd., Madurai reported in(1988(1) L.W.327.9.It is seen from the impugned judgment that the reasonassigned by the Court below, for dismissing the suit is thatas the consignment was being sent at owners risk and as perthe findings the accident had occurred in an unavoidablecircumstances, and hence the public carrier was not liable topay any damages to the appellants. Further, statutory noticerequired under Section 10 of the Carriers Act was not givenand therefore, the appellants are not entitled to claim anydamages from the respondent. Before the Trial Court, therespondents had also raised the defence, that the suit claimwas barred by limitation but the same was negatived by theCourt below.10. As per Section 9 of the Carrier Act, 1865 theconsignor who seeks damages from a common carrier for loss,damage or non-delivery of the goods will have to prove thatthe damage was occurred due to the negligence or criminal actof the carrier, provided such carrier is a common carrier.Similarly a common carrier, who did not adduce any evidence toestablish that there was no negligence, for the loss/damagesustained by the consignor, cannot be permitted to raise sucha plea in the first appeal. Here in the instant case, thoughthe respondent/defendant had filed the written statementdenying the negligence on the part of the respondent, no oralor documentary evidence was adduced to establish that there https://hcservices.ecourts.gov.in/hcservices/ was no negligence on the part of the carrier. Further, inthis appeal though service of notice on the respondents waseffected, continuously there was no representation on behalfof the respondent. However, the appeal is disposed of only onmerits.11.The consignment note issued by the respondent herein,and marked as Ex.A.2 is in the printed format, wherein,"OR/CR's" has been printed and out of which "CR" has beendeleted. As contended by the learned counsel for theappellant, mere scoring out the word 'CR' would not besufficient to exempt the respondent from the liability. Asper Section 9 of the Carrier Act, 1865, since it has beenadmitted that there was damage and non-delivery of theconsignment entrusted with the respondent, the appellantplaintiff being the consignor need not prove that such damageor non-delivery was owing to the negligence of carrier. Theburden is upon the respondent carrier and if there was anydamage or loss caused beyond control of the carrier such asvis major, known as the Act of God, the carrier would not beliable for such a loss or damage. But, in the instant case,there is no evidence to show that the accident had taken placedue to vis major or the Act of God. Further as per Ex.A7dated 10.01.1989, the respondent has admitted that at the timeof delivery 13 barrels were found empty and 6 barrels were ina leaking condition, due to the accident and as such, thetotal loss was estimated at 3169Kgs., of chemicals. Theappellants have pleaded that the accident had taken place onlydue to the negligence of the respondent carrier which causedpartial loss of the consignment. As the consignor has pleadedand adduced evidence that loss of consignment had occurredonly due to the negligence of the carrier, on account of non-delivery of the consignment, being a public carrier, as perSection 9 of the Carriers Act, 1865, it has to be legallypresumed that the loss or damage, or non-delivery of the goodshad occurred only due to the negligence of the public carrier,the respondent herein.12. The Trial Court has held that no statutory notice,as contemplated under Section 10 of the Carriers Act, 1865,was issued. Section 10 of the Carriers Act, 1865, reads asfollows: "No suit shall be instituted against acommon carrier for the loss of, or injury to,[goods (including container, pallet, or similararticle of transport used to consolidate goods)entrusted] to him for carriage, unless notice inwriting of the loss or injury has been given tohim before the institution of the suit and within https://hcservices.ecourts.gov.in/hcservices/ six months of the time when the loss or injuryfirst came to the knowledge of the plaintiff."13.As contended by the learned counsel for the appellantit is seen that Ex.A5, notice dated 11.01.1989, had been sentto the respondent and the postal acknowledgment has also beenmarked as Ex.A6. Therefore, it is clear that the secondappellant had sent, statutory notice as contemplated underSection 10 of the Carriers Act, 1865, to the respondent. Asper the evidence available on record, it is clear that thesecond appellant, being the consignor/owner of the goods isentitled to claim damages from the public carrier, therespondent herein. It is not in dispute that the secondappellant had insured the consignment with the firstappellant, United India Insurance Company Ltd., and that thesecond appellant had received the amount as damages, from thefirst appellant and also executed a letter of subrogation, infavour of the first appellant and therefore, the firstappellant is legally entitled to maintain the claim as againstthe respondent, by way of filing a suit. The case of theappellants, for consideration in this is with regard toquantum of damages claimed by the appellants. Learned counselappearing for the appellants would contend that a licensedsurveyor Mr.M.G.Baskar was appointed to assess the quantum ofactual damage caused to the second appellant. He was alsoexamined as P.W.2 before the Trial Court and according to him,he assessed partial damage of the consignment of 3169Kg. ofchemicals valued at Rs.1,91,360/-. As per the evidence ofP.W.1, the Assistant Administrative Officer of the firstappellant, a total sum of Rs.1,97,860/- had been paid by thefirst appellant to the second appellant, towards the policy.14.According to P.W.2, Surveyor, he submitted his reportsEx.A.11 and Ex.A12, respectively on 24.01.1989 and 07.02.1989respectively. He has admitted that there was no evidence toshow that he had gone to the godown of the respondent on06.10.1989 and assessed the value of damage there. Even forthe alleged inspection as admitted by him no signature wasobtained from the agent or representative of the respondentand no notice was given by the surveyor about the allegedinspection. He has further stated in the cross examination,that he could not say what was the chemical available in thebarrels inspected by him. According to him, the damage wasassessed by him not on the basis of its market value, butonly on the basis of the invoice. As per the invoice, 10metric tonnes of chemicals was sold for Rs.4,75,000/- +Excise duty 50% @ Rs.71,250/- Special Excise at 5% Rs.3,562/-with CST 4% @ Rs.21,992.50 and accordingly the total value ofthe consignment was Rs.5,71,805/- and therefore for theshortage/loss 3169Kg. Chemicals, he could have computed the https://hcservices.ecourts.gov.in/hcservices/ value only at Rs.1,81,205/- and not at Rs.1,91,360/- as statedby the surveyor.15.Though P.W.2 was a licensed surveyor and the allegednegligence has been established as against the carrier, inview of Section 9 of the Carriers Act. However, being theclaimants, it is also the duty of the appellants to establishthe value of the loss or damage sustained due to thenegligence of the carrier, the respondent herein. 16.It has been established by the appellants by way ofmarking the invoice Ex.A3 that the total value of theconsignment viz 10 metric tones of chemicals was Rs.5,71,805/-inclusive of all taxes and the same had been sent through therespondent public carrier to Bombay. Similarly as per Ex.A7shortage/damage certificate, dated 10.01.1989, the respondenthas admitted that 13 barrels were found empty; six barrelswere in a leaking condition and due to the accident, the totalloss sustained was 3169Kgs. of chemicals and therefore on thevalue of the consignment as per the invoice Ex.A3 and theshortage/damage Ex.A7, could be assessed at Rs.1,81,205/-. Asthe appellants herein, have established that the loss hadoccurred only due to the negligence of the respondent, publiccarrier, they are entitled to get back the amount as damageswith interest and costs. The Court below has not consideredthe legal aspect of burden of proof, as per Section 9 of thecarriers Act, 1865 and also Section 10 of the said Act. Section 10 of the Carriers Act reads as follows:"No Suit shall be instituted against acommon carrier for the loss of, or injuryto, [goods (including container, pallet, orsimilar article of transport used toconsolidate goods) entrusted] to him forcarriage, unless notice in writing of theloss or injury has been given to him beforethe institution of the suit and within sixmonths of the time when the loss or injuryfirst came to the knowledge of theplaintiff."17.It is seen that even in plaint the appellants haveclaimed only Rs.1,81,205/- as compensation, to be paid withfuture interest and costs. Considering the relevant provisionsof the Carriers Act and the evidence available on record, thisCourt is of the view that this appeal has to be allowed inpart and the impugned judgment and decree are to be set aside,directing the respondent herein to pay damages on the basis of https://hcservices.ecourts.gov.in/hcservices/ the evidence available on record. The points forconsideration is answered accordingly.18.In the result, this appeal is partly allowed and theimpugned judgment and decree passed by the Court below are setaside and the respondent herein is directed to payRs.1,81,205/- to first appellant herein United India InsuranceCompany Ltd., as damages with 6% interest from the date offiling of the suit. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSmiTo,1. The Subordinate Judge, Namakkal.2.The Record Keeper, V.R.Section, High Court,MadrasA.S.No.409 of 1996MRD[CO]SKY/18/3