M/S.A.B.T. PARCEL SERVICE v. VASUDEVAN K.PANDALATH

C.P.C. has been filed by defendants 1 & 3 against the judgment and decree dated 29/09/2003 in O.S.No.520/2002 on the file of the Subordinate Judge's Court, Ernakulam. The respondents herein are the plaintiff and the second defendant in the suit. The parties and the documents will be referred to as described in the suit.

The plaintiff, the proprietor of M/s. Pesticides Corporation, a unit engaged in the manufacture and distribution of pesticides, booked one barrel of Monocrotophos 36 SL on 19/08/1999 with the second defendant parcel service as per Ext.A1 way bill. Two more barrels of the same product were booked on 30/08/1999 as per Ext.A2 way bill. Both the consignments were to be delivered to a consignee at Muvattupuzha. The consignee at Muvattupuzha failed to take delivery of the consignment. R.F.A.No. 199 of 2004 3 Hence, the plaintiff instructed the first defendant to re-book the consignment to Tripunithura so that he could take back the three barrels. Inspite of several requests and demands, defendants 1 and 2 failed to accede to the request of the plaintiff. The plaintiff then caused to issue a lawyer notice to the defendants calling upon them to deliver the consignment at Tripunithura. The third defendant accepted the notice on 13/06/2000 and sent a reply dated 20/06/2000 seeking time to revert. Further a notice was sent by the plaintiff on 24/07/2000 to which the third defendant sent a reply requesting for more time. Defendants 1 & 2 though accepted the notice did not send any reply. Before issuing the first lawyer notice, the plaintiff on 10/03/2000 had sent a letter along with original way bill calling upon the first defendant to send back the barrels to Tripunithura. The said letter was returned with endorsement 'refused'. The first lawyer notice dated 13/06/2000 was also refused to be accepted by the first defendant. Therefore, the plaintiff is claiming recovery of the cost of the contents of the three barrels, that is, ₹2,09,570/- with interest @ 21% per annum from the defendants and their assets.

The third defendant is a common carrier and defendants 1 and 2 are the agents of the third defendant. According to the defendants, the R.F.A.No. 199 of 2004 4 suit filed without issuing notice under Section 10 of the Carriers Act, 1865 (the Act) is not maintainable. The two consignments of the plaintiff arrived at the Muvattupuzha depot of the first defendant on 20/08/1999 and 01/09/1999 respectively. However, for reasons best known to the plaintiff, the consignee never took delivery of the goods. Thereafter on 12/09/1999 at 12 a.m. two persons came to the Muvattupuzha depot threatened the watchman with dire consequences and caused damage to the barrels kept in front of the depot. The barrels were completely emptied due to the damage caused. The failure on the part of the consignee to take delivery coupled with the incident on 12/09/1999 raised suspicions about the consignment. It was also found that the contents of the barrels that had leaked, did not contain Monocrotophos 36% SL as claimed by the plaintiff. On the other hand it contained some other liquid. The incident was immediately reported to the police pursuant to which Crime No.430/1999 alleging commission of the offences punishable under Sections 447, 427 and Part II of 506 read with Section 34 IPC was registered.

3.1. On an earlier occasion also, that is, on 12/08/1999 the plaintiff had booked a consignment declaring that it contained 190 bottles of Quinal Phose Hormonic Conce as per way bill no.051654. This was booked from R.F.A.No. 199 of 2004 5 Trippunithura to Muvattupuzha. During the course of the investigation in Crime No.430/1999, the carton alleged to be containing 190 bottles was opened by the police. Then it was found to contain only 90 bottles. The pesticides contained in those bottles were different from what was declared by the plaintiff. The plaintiff in the 2nd week of September did approach the defendants seeking rebooking of the goods. He was then told about the registration of the crime and the investigation that was going on. Thereafter, the plaintiff did not pursue his request. He was also told that his request for rebooking and re-delivery of the goods at Tripunithura was not possible. The plaintiff was in the habit of booking goods of which the expiry dates were over and making false declarations regarding the materials contained in the consignment. The plaintiff was defrauding the bank as well as the carriers. The defendants also suspect that the consignees mentioned in the way bills are all fictitious persons. When the consignments were booked, the first defendant had a branch of the parcel service at Koothattukulam. But the goods were booked to Muvattupuzha though the address of the consignee was at Koothattukulam. The defendants are not aware of the registered letters referred to in the plaint.

On completion of pleadings, the parties went to trial. PW1 was R.F.A.No. 199 of 2004 6 examined and Exts.A1 to A13 were marked on the side of the plaintiff. DW1 to DW3 were examined and Exts.B1 to B19 were marked on the side of the defendants. The trial court on an appreciation of oral and documentary evidence and after hearing both sides, by the impugned judgment decreed the suit. Aggrieved, defendants 1 and 3 have come up in appeal.

The points that arise for consideration in this appeal are - (i) was a notice under Section 10 of the Act necessary. (ii) was there any breach of contract by the defendants entitling the plaintiff to seek the plaint amount, (iii) is there any infirmity in the findings of the trial court calling for an interference by this Court.

Heard both sides. Section 10 of the Act says that no suit shall be instituted against a common carrier for the loss of, or injury to goods (including container, pallet or similar article of transport used to consolidate goods) entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of R.F.A.No. 199 of 2004 7 the plaintiff. The object of the Section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. The trial court relying on the dictum in Patel Traders v. Patel Ambaram Thakarshi, 1986 ACJ 439 found that the issuance of Section 10 notice was not necessary for the following reasons - (i) that non-delivery of the goods was admitted by the defendants; (ii) that the defendants had no case that the second defendant had properly kept the valuable consignment in their custody to be delivered to the consignee; (iii) that even assuming that the contention of the defendants that loss was caused by two unidentified persons at the instance of the plaintiff while the goods were in the verandah of the first defendant was true, the defendants were aware of the loss of the goods; and (iv) that, as it was a case of total non delivery, issuance of notice was not required.

As can be discerned from the pleadings in the case, the case of the plaintiff is not that the goods were lost or damaged in transit or had been delivered in a damaged condition. The plaintiff admitted that the consignee did not take delivery of the consignment for reasons best known to the latter. In such an event, what was the liability of the defendants ? The customer copy of the way bills dated 19/08/1999 and 30/08/1999 seen R.F.A.No. 199 of 2004 8 attached to Ext.A3 notice states that the consignment booked is subject to the conditions printed overleaf. On going through the conditions, that is, specifically condition no.10, it is stated that the Company reserves the right to dispose of perishables lying undelivered after 48 hours of arrival without notice and the other goods after 30 days of arrival after due notice in writing to the parties interested. The rightful parties would be entitled to the proceeds, less freight, demurrage and administrative expenses which would be 10% of the sale value of the goods sold at public auction. It is true that the defendants do not have a case that they had resorted to the said course. But the plaintiff can claim damages only in the case of a breach of the terms of the agreement/contract between the parties.

Admittedly as per the contract, the plaintiff had booked two consignments which the defendants agreed to deliver to the consignee at Muvattupuzha. The defendants contend that the consignment booked on 19/08/1999 and 30/08/1999 reached Muvattupuzha depot on 20/08/1999 and 01/09/1999 respectively. This is not disputed by the plaintiff. The plaintiff also admits that the consignee never took delivery of the consignment. The plaintiff demanded re-booking of the consignment for which, there was no agreement between the parties. In the written R.F.A.No. 199 of 2004 9 statement, the defendants contend that when the plaintiff had approached the first defendant in the second week of September, they had told him that re-booking was not possible and they would not re-deliver the goods to the plaintiff at Tripunithura. This fact is also not disputed by the plaintiff. The defendants also have a case that the plaintiff is a fraudster and that he indulges in cheating of the banks and the carrier companies. His modus operandi was to book consignments in the name of fictitious persons. The description and quantity of the consignment would also be incorrect and false. During the transit or thereafter, the plaintiff would get the goods destroyed or damaged and then raise false claims against the carrier and insurance companies. Likewise in this case also, though the goods reached the Muvattupuzha depot on the dates aforementioned, the consignee for no reasons whatsoever never took delivery of the consignment. Thereafter on 12/08/1999, two strangers trespassed into the depot of the second defendant and damaged the consignment of the plaintiff, which were two barrels alleged to be containing pesticide. These barrels were damaged, so that the entire contents of the barrels was drained off. On checking the contents it was found that the same was not pesticide as was claimed by the plaintiff. Regarding the incident, a crime was also registered by the police. R.F.A.No. 199 of 2004 10 According to the defendants, they suspect that the barrels were damaged at the instance of the plaintiff. When the plaintiff was examined as PW1, he was asked whether he had booked any consignment on 12/08/1999 to Muvattupuzha in the name of the same consignee in this case and whether the consignee had failed to take delivery of the same, to which he pleaded ignorance.

It is not necessary to go further into the details of the aforesaid contentions of the defendants to decide the issues involved in this case because the claim that is made in the plaint is not for a breach of the terms of the contract between the parties. As per the terms of the contract, the plaintiff had booked two consignments which were two barrels supposed to contain pesticides which were agreed to be delivered by the defendants to a consignee at Muvattupuzha. As noticed earlier, the contention of the defendants that these goods were delivered or that it reached the Muvattupuzha depot on 20/08/1999 and 01/09/1999 is not disputed. Neither the plaintiff nor the defendants has a case that the agreement was to deliver the goods to the consignee at the residence or the office of the consignee. What can be discerned from the pleadings is that the agreement was to transport the goods from Tripunithura to Muvattupuzha and from the R.F.A.No.