High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.8.2009CORAMTHE HONOURABLE MR.JUSTICE K.K.SASIDHARANA.S.NO. 443 OF 19991. Hindustan Steel Work Construction Limited Ennoor by Mr.G.V.Subramanyam Senior Manager 2. Resident Engineer Officer in Charge of Hindustan Steel Works Construction Ltd. Eranavoor...Appellants / Defendants -Vs.-Southern Central Roadwaysby its Partnerat No.31-33-58, NeelammVepachetta Assam GardensVisakapatnam-530 020...Respondent /PlaintiffAppeal against the judgment and decree dated 8.6.1994 inO.S.No.165 of 1990 on the file of Sub Judge,Thiruvallur. For Appellants : Mr.P.Ranganatha Reddy for M/s.King and Patridge. For Respondent : No Appearance-------J U D G M E N TThis first appeal is directed against the judgment and decreedated 8.6.1994 in O.S.No.165 of 1990 on the file of the learnedSubordinate Judge, Thiruvallur. 2. The parties in this appeal would hereinafter be referred toas "plaintiff" and "defendants" .3. The suit in O.S.No.165 of 1990 was preferred by the plaintiffagainst the defendants praying for a decree directing them to pay asum of Rs.49,305.49 with interest at 18% per annum till the date ofpayment. https://hcservices.ecourts.gov.in/hcservices/

4. In the plaint in O.S.No.165 of 1990 the plaintiff contendedthus:-(a) The first defendant's office at Vizag contacted theplaintiff and sought the services of the plaintiff for transportingColes crane weighing 13 to 14 tonnes approximately from Vizag toMadras. The plaintiff as per its letter dated 11.8.1989 quoted therates for 13 to 14 tonnes crane on owner's risk basis, The firstdefendant gave its work order accepting the rate quoted by theplaintiff for transportation as per letter dated 14.8.1989.(b) The plaintiff arranged a trailer for carrying theconsignment and agreed to transport the consignment as per theconsignment note No.3128 dated 24.8.1989. Unfortunately the trailer,which was carrying the crane met with an accident near Mylavaram inAndhara Pradesh as the trailer was toppled due to sudden gush offlood water on the road and the crane fell on the sand bed. Theaccident was due to bad weather, bad road condition and extra weightof the material. The accident was immediately reported to the firstdefendant by way of telegram on 2.9.1989 and it was followed by aletter sent by the plaintiff on 19.9.1989. The plaintiff made itspecifically clear in the letter that in the event of theirarrangement to reload the consignment and transport it to thedestination, an additional expenditure should have to be incurred, asit involves lifting the materials with the help of two cranes, hiredfrom third parties. (c) The first defendant thereafter contacted the plaintiff bytelephone and instructed them to arrange for reloading andtransporting the same to the destination agreeing to reimburse theadditional costs demanded and incurred by the plaintiff. The firstdefendant as per their communication dated 19.9.1989 called upon theplaintiff to make all out efforts to reload and despatch the crane tothe destination immediately. This was confirmed further by the letterof the first defendant dated 29.9.1989 addressed to the plaintiff.The plaintiff thereafter arranged for lifting and re-loading theconsignment by hiring the services of M/s. Coromandel EngineeringWorks at Ibrahimpatnam on payment of Rs.25,000/- and accordingly thecrane was duly transported by way of consignment to the destination.(d) The accident spot was inspected by the surveyors deputed byM/s. New India Assurance Company, Vijayawada, Andhra Pradesh and aFirst Information Report was also lodged with the police authorities.The defendants also requested for arranging security and accordinglydue security was given to the consignment.(e) The plaintiff after transportation of the consignmentpresented their bill for payment to the first defendant for a sum ofRs.43,441.00 which includes additional cost and expenses incurred bythem for re-loading the consignment, for extra weight and incidentalcharges. However the first defendant, who was contacting the https://hcservices.ecourts.gov.in/hcservices/ plaintiff at all times and issuing instructions by telephone as wellas by letter regarding the reloading and transporting the consignmentto the destination, was not agreeable for payment of the bill raisedby the plaintiff. In fact the first defendant also stated thatinstruction was given to the second defendant by way ofcorrespondence to honour the bill raised by the plaintiff. It wasonly as per the advise given by the first defendant the plaintiffpresented their bill with their letter dated 5.2.1990 to the seconddefendant. However the second defendant as per their letter dated15.2.1990 repudiated their liability to pay the claim for payment ofadditional costs and expenditure claimed by the plaintiff. In suchcircumstances, the plaintiff has laid the suit.5. The first defendant in their written statement inter aliacontended thus:-(a) The plaintiff offered and accepted to transport Coles craneand its accessories as per terms and conditions enclosed with thework order dated 19.8.1989. It was not at the risk of the owner asalleged in the plaint. The transaction was accepted by the plaintiffafter viewing the equipment as called for in the defendant's enquiryon 8.8.1989 and lying in the stores of the first defendant atVisakhapatnam. The job description and freight charges were alsospecifically stated and accepted. (b) The plaintiff was given seven days time for transportingthe materials and it was also stipulated that the transporter shallbe responsible for the safe delivery of the items at the destination.The conditions further provided that no transshipment en-route willbe permitted. It is also stated that the first defendant shall beentitled to claim compensation from the transporter in case of anydamages caused to the materials during transit. The plaintiffaccepted the terms and conditions and agreed to transport thematerials as per their consignment dated 24.8.1989.(c) The first defendant denied the contention that the accidentwas caused on account of sudden gush of flood water. Arepresentative of the first defendant visited the spot soon after theaccident and found that the crane etc., were lying upside downsubmerged in four feet deep water on the road side with considerabledamage to various parts of the Crane. The first defendant deniedthe alleged telephone message or instruction given to the plaintiffto re-load the crane at the risk and cost of the defendants. Thedefendants as per letter dated 19.9.1989 further stated thatreasonable action would be taken after receipt of the crane inassessing the damages and loss in detail.(d) The surveyor deputed by the plaintiff found that damage wascaused to the crane. The defendants denied that the plaintiff hadexpended a sum of Rs.25,000/- in connection with re-loading.According to the defendants, the plaintiff has agreed to transport https://hcservices.ecourts.gov.in/hcservices/ the materials by fixing the tariff at Rs.11,815/- and as such theyare not liable to pay any amount by way of extra charges. In short,the first defendant denied the manner of accident as well as theirliability to reimburse the plaintiff. 6. The learned trial Judge on the basis of pleadings framed thefollowing issues:-(a) Whether the plaintiff is entitled to the relief claimed inthe plaint?(b) Whether the accident took place due to act of God. Whetherthe accident was caused partly due to the fault of the plaintiff orby the defendants or due to the negligence of the plaintiff?(c) To what relief is the plaintiff entitled to?7. During the course of trial, P.W.1 was examined on the side ofthe plaintiff and Exs.A.1 to A.21 were marked. The defendants alsoexamined one witness on their side and Exs.B.1 to B.7 were marked.8. The trial court mainly relied on the surveyors report markedas Ex.A.9 to come to the conclusion that the accident was not onaccount of the rash and negligent driving of the driver employed bythe plaintiff. According to the trial court, the accident was onlyon account of heavy rain., flood and bad weather for which theplaintiff cannot be found fault with. However the trial court foundthat the plaintiff was not entitled to collect additional cost by wayof extra load and accordingly the plea for inclusion of Rs.2, 832/-by way of such extra load was rejected9. The learned trial Judge on the basis of the correspondencesexchanged between the parties arrived at a factual finding that thedefendants have agreed to reimburse the claim with respect to theadditional re-loading charges and as such the defendants are legallyliable to pay the said amount to the plaintiff. Accordingly the suitwas decreed with interest at 18% per annum. It is the said judgmentand decree which is impugned in the first appeal.10. The point for consideration:-"Whether the plaintiff is entitled to claimextra charges on account of re-loading andtransportation of materials to the point ofdestination?"11. The learned counsel appearing on behalf of the defendantscontended that the plaintiff miserably failed in their attempt toprove that the accident was on account of the sudden rain and badweather conditions coupled with the factum of poor road condition.According to the learned counsel the best witness to speak about theaccident and the absence of negligence was only the driver. Howeverthe driver of the vehicle was not examined as a witness on the sideof the plaintiff and as such it cannot be said that the driver was https://hcservices.ecourts.gov.in/hcservices/ not negligent. The learned counsel also contended that the crane wasentrusted to the plaintiff for safe transport by way of way bill andas such the provisions of the Carriers Act would come into operation.As per the said Act, the ultimate responsibility to deliver thematerial at the point of destination lies only with the carrier andas such it was not permissible for the carrier to maintain actionagainst the owner of the product for the purpose of claiming damagesor for claiming the extra amount spent by them for reloading thematerial. The learned counsel also placed reliance on the judgmentsof this Court reported in 2000(1) CTC 346 (SHANMUGA SUNDARAM PILLAIALIAS SOMASUNDARAM PILLAI v. NATIONAL INSURANCE CO., LTD.) & 2001 (1)CTC 415 (ECONOMIC ROADWAYS CORPORATION v. SOUNDARARAJA MILLA LTD.)in support of his contention.12. This appeal was originally fixed for hearing on 14.8.2009and the learned counsel for the defendants argued the matter.However there was no representation on behalf of the plaintiff and assuch without passing orders, I have posted the matter to 18.8.2009so as to enable the respondent to submit their arguments. I havealso directed the Registry to print the name of the plaintiff as wellas his counsel in the cause list. Accordingly the name of the counselfor the plaintiff as well as the name of the plaintiff were printedin the cause list. The matter was posted on 19.8.2009. Even on19.8.2009 there was no representation on behalf of the plaintiff andas such the matter was reserved for judgment, after hearing thecounsel for the defendants.DISCUSSION:-13. The defendants approached the plaintiff to transport theirColes crane and its accessories and spare parts from Vizag to Madrasand the said proposal was accepted by the plaintiff and accordinglythe plaintiff agreed to transport the goods for a sum of Rs.11,815/-.The consignment No.3128 dated 24.8.1989 marked as Ex.A.4 shows thefactum of such agreement for transportation. It was only inpursuance of the said agreement the plaintiff has undertaken thetransportation of goods from Vizag to Madras. The vehicle met withan accident at Mylavaram in Andhara Pradesh on 2.9.1989. Accordingto the plaintiff the accident was only on account of sudden gush offlood water and as a result, the crane fell on the sand bed.14. The accident was on account of bad weather and bad roadcondition and extra load of materials. The plaintiff as per theirtelegram dated 2.9.1989 followed by the letter dated 19.9.1989informed the first defendant about the accident. According to theplaintiff it was only as per the instruction received from the firstdefendant they have taken steps to reload the consignment for thepurpose of transportation to Madras. In order to claim theadditional freight charges and incidental charges for reloading, theplaintiff has contended that they have hired the services of M/s.Coromandal Engineering Works at Ibrahimpatnam and a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.25,000/- was paid on that account.15. The plaintiff has relied on the letters sent by the firstdefendant dated 19.9.1989 marked as Exs.A.7 & A.8. It was theircontention that the first defendant has agreed to reimburse theentire charges for reloading the consignment and transporting thesame to the destination at Madras. It was only on the saidundertaking they have transported the material and as such the firstdefendant was liable to reimburse the entire amount.16. The primary issue which was framed by the learned trialJudge was regarding the cause of accident and as to whether theaccident was due to the act of God. Admittedly the witness examinedon the side of the plaintiff was not the driver of the vehicle. Thesaid witness has no personal knowledge about the accident inquestion. When it was the case of the plaintiff that the accidentwas caused on account of poor weather as well as bad condition ofroad, the burden was clearly on them to prove that the accident wasbeyond their control and it was in fact, the act of God. Howeververy strangely the driver of the vehicle was not examined. Thelearned trial Judge relied on the report filed by the surveyor whichwas marked as Ex.A.9 to come to the conclusion that the accident wasnot due to the rash and negligent driving by the driver.17. The vehicle was inspected by the surveyor long after theincident and as such it was practically impossible for the surveyorto conclude that the accident was not due to the negligence of thedriver. The best person to depose about the nature of the accidentwas the driver of the vehicle which was involved in the accident.However for the reasons best known to the plaintiff they have notchosen to examine the said witness and as such the best evidence wasnot produced before the court to substantiate their contention thatthe accident was solely due to the act of God and poor weathercondition, for which the plaintiff was no way responsible. Thereforethe finding rendered by the learned trial Judge to the effect thatthe accident was not due to the negligence of the driver of thevehicle is necessarily to be set aside.18. The next issue relates to the liability of the defendants toreimburse the plaintiff, the amount spent by them for the purpose ofreloading the material and transporting the same to the place ofdestination.19. The plaintiff is a public carrier and the transaction inquestion is covered by the provisions of the Carriers Act. The saidAct enjoins the the carrier to deliver the materials to the owner ingood condition. Merely by printing that the transport was at owner'srisk by way of affixing the seal, would not serve the purpose, asthe endorsement would not absolve the carrier from its liability.The position of a carrier under the Carriers Act is that of an https://hcservices.ecourts.gov.in/hcservices/ insurer with regard to the goods transported by the owner of thegoods. Any loss to the goods has to be compensated only by thetransporter. In fact, it was a transaction in good faith as thecarrier was transporting the goods as an authorised agent of theowner. The carrier was having the responsibility to transport thematerials in safe condition and to deliver the same to the owner.THE LAW ON THE POINT:-20. In SHANMUGA SUNDARAM PILLAI ALIAS SOMASUNDARAM PILLAI v.NATIONAL INSURANCE CO., LTD. (2001 CTC 346) the issue before alearned Judge of this court was as to whether the defendant as acommon carrier can avoid their liability to the plaintiff based onthe specific contract which contains a clause that the goods arecarried at owner's risk. The learned Judge following the judgment ofthis court in 1988 (1) MLJ 64 (Thiruppathi Venkatachalapathy LorrryService v. New India Assurance Company Ltd., & 1996 TNLJ 127 (TheDivisional Manager, The New India Assurance Company Ltd., v. Murugan)negatived the defence and observed thus:-"7......As far as issue (a) isconcerned it should not detain thiscourt even for a minute more than it isrequired. This issue is covered by twojudgment of this court in ThiruppathiVenkatachalapathy Lorrry Service v. NewIndia Assurance Company Ltd., 1988 (1)MLJ 64 & The Divisional Manager, TheNew India Assurance Company Ltd., v.Murugan (1996 TNLJ 127). In thesecases a similar argument has beenraised and this court had repelled theargument of the common carrier and heldthat the liability of the commoncarrier is absolute. Therefore thisissue goes against the defendant. Asfar as the issue (b) is concerned underSection 9 of the Carriers Goods Act,any suit brought against the commoncarrier for loss, damage etc., etc.entrusted to the carrier for carriage,it shall not be necessary for theplaintiff to prove that such a loss ordamage etc., was due to negligence orcriminal act of the carrier his servantor agent. Therefore it is clear thatthe burden is on the carrier to provethat there was no negligence or anycriminal act. Under Section 8 of theCarrier Act the common carrier is made https://hcservices.ecourts.gov.in/hcservices/ liable to the owner for loss or fordamage to any property delivered tosuch a carrier to be carried when suchloss or damage shall have arisen fromthe criminal act or negligence of thecarrier or of his gent or servants.Reading Sections 8 and 9 of theCarriers Act together it is clear thatthe burden is on the carrier to provethat there was neither a criminal actnor any negligence committed by eitherthe carrier or by his agent or hisservant. In this case, the driver ofthe vehicle had not been examined atall and he would be the competentperson to speak about the accident. Theevidence of D.W.1 who was not in thevehicle at the time of the accident isno use. At best his evidence regardingthe manner in which the accident tookplace would be only hear-say. Going bythe materials available on record I amof the opinion that the carrier had notdischarged the onus or proved thatthere was neither negligence nor anycriminal act on his part or on the partof his servant or agent. The issue ofnegligence goes against thecarrier....."21. The Supreme Court in PATEL ROADWAYS LTD., v. BIRLA YAMAHALTD. (2000(4) SCC 91) on an evaluation of the judgments rendered byvarious High Courts as well as the earlier judgments of the SupremeCourt, indicated the liability of a carrier thus:-`"47. From the conspectus of viewstaken in the decisions of different HighCourts noted above it is clear that theliability of a common carrier under theCarriers Act is that of an insurer. Thisposition is made further clear by theprovision in Section 9, in which it isspecifically laid down that in a case ofclaim of damage for loss to ordeterioration of goods entrusted to acarrier it is not necessary for theplaintiff to establish negligence. Evenassuming that the general principle incases of tortious liability is that theparty who alleges negligence against the https://hcservices.ecourts.gov.in/hcservices/ other must prove the same, the saidprinciple hs no application to a casecovered under the Carriers Act. This isalso the position notwithstanding aspecial contract between the parties.These principles have held the field overa considerable length of time and havebeen crystallised into an acceptedposition of law."ON POINT:-22. As per Ex.A.2 dated 11.8.1989 and A.3 dated 14.8.1989 theliability of the first defendant was restricted to a sum ofRs.11,815/- which was the transportation charges agreed to betweenthe parties for the purpose of transporting the materials from Vizagto Madras. The trial Court has misinterpreted the document marked asEx.A.8 as according to the trial Judge the defendants have agreed toreimburse the amount necessary for re-transportation of the materialson the basis of the said letter. It is true that the first defendantas per letter dated 19.9.1989 called upon the plaintiff to arrangefor proper guarding of the crane and to take all out efforts to re-load and despatch the crane to the destination immediately. The saidrequest was taken as an agreement to pay the charges necessary forreloading the material and for transportation to the place ofdestination. However nothing was stated in the said letter thatthe defendants have agreed to re-imburse the plaintiff, any suchexpenses incurred by them. In fact the first defendant has statedthat actual assessment of damage and loss to the crane will be doneat the destination for further action, which was indicative of thefact that the first defendant has reserved their right to proceedagainst the plaintiff for damages. Therefore the document in Ex.A.8would not come to the rescue of the plaintiff for the purpose ofclaiming the cost for reloading and transportation, from the firstrespondent.23. It is true that the plaintiff as per their letter dated19.9.1989 marked as Ex.A.7 wanted the defendants to pay a sum ofRs.29,000/- by way of additional expenses to be incurred for thepurpose of lifting the materials. However there was nothing toindicate that the defendants have agreed to pay the said amount tothe plaintiff. The first defendant has only called upon theplaintiff to take steps for re-loading the crane and to despatch thesame to the destination. As the owner of the goods, the defendantswere eager to get the materials at the point of destination.Therefore it was quite natural on the part of the defendants toaddress letters to the plaintiff, being the carrier to take effortsfor reloading the crane and despatching the same to Chennai. Howeverthere was nothing in the said letter indicative of the fact that thedefendants have agreed to pay the charges necessary for suchreloading and re-transportation, to the plaintiff. In the absence of https://hcservices.ecourts.gov.in/hcservices/ any such undertaking on the part of the defendants it was notpossible for the plaintiff to claim the amount. 24. The learned trial Judge was not correct in his finding thatthe defendants were liable to pay the amount incurred by theplaintiff on account of re-loading and despatching the crane to theplace of destination. Therefore necessarily the finding on issue No.2framed by the trial Judge is liable to be set aside. The point isanswered against the plaintiff.25. The claim made by the plaintiff for a sum of Rs.43,441/- wasinclusive of a sum of Rs.11,815/- fixed as the freight charges.Though the plaintiff is not entitled to the extra charges on accountof re-loading and transportation, the defendants are liable to paythe agreed amount with interest.26. In the result, the judgment and decree dated 8.6.1994 inO.S.No.165 of 1990 is set aside in part and a decree for a sum ofR.11,815/- is granted to the plaintiff with interest at 12% from thedate of presentation of plaint with proportionate cost.27. The plaintiff has withdrawn the decree amount with interestand the application filed by the defendants in C.M.P.No.20361 of 1999for a direction to re-deposit the amount was dismissed by this courtas per order dated 8.12.1999 with liberty to the defendants to invokeSection 144(1) of the Code of Civil Procedure in the event of theirsuccess in the appeal. Therefore it is open to the defendants to movethe trial Court for restitution.28. The appeal is allowed in part as indicated above. No costs.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarTr/To1.The Sub-Judge, Trivellore.2.The Section Officer VR Section,High Court, Madras-104.2 ccs To M/s. King & Patridge, Advocate, SR.41305, 40148 A.S.No. 443 of 1999LA(CO)SRA(19/10/2009)