1. The present appellant was the defendant against whom the present respondents as plaintiffs had instituted a suit in O.S. No. 7939/2000 in the Court of the learned XXXIII Additional City Civil and Sessions Judge at Bangalore City (CCH-33) (hereinafter for brevity referred to as the "Trial Court") for recovery of a sum of Rs. 4,66,893/- with interest on a sum of Rs. 3,87,000/- at the rate of 12% per annum. The said suit came to be decreed by the judgment and decree of the Trial Court dated 30-1-2010. It is against the said judgment and decree, the defendant in the Court below has preferred this appeal.
2. The summary of the case of the plaintiffs in the Trial Court was that, the plaintiff 2 is an Insurance Company and plaintiff 1 had insured with plaintiff 2 against the damage or loss in transit of goods for a total amount of Rs. 3.00 Crores for a period of one year commencing from 29-6-1998 under Marine Policy (Cargo). The defendant is a common Carrier and the plaintiff 1 had consigned its goods, viz. Eiki Plasma Display PLD 42 UE Projector for its transportation from Bengaluru to their Unit at Chennai. The plaintiffs claimed that, the defendant as a Carrier of goods had caused damage to the said goods entrusted for its transportation to the defendant. Thereafter at the claim lodged by the first plaintiff with its insurer i.e. the second plaintiff, a Surveyor was appointed and the Insurance Company got a survey conducted to assess the quantum of damage and also the nature of damage. After obtaining the Surveyor's report, the first plaintiff's claim was settled by the second plaintiff at a sum of Rs. 3,87,000/- on 31-3-1999. By virtue of the settlement of the claim by the second plaintiff, the first plaintiff executed a Letter of Subrogation and Special Power of Attorney in favour of plaintiff 2-the Insurance Company. As such, under the right of subrogation, plaintiff 2 issued a legal notice dated 31-8-2000 to the defendant claiming a sum of Rs. 3,87,000/- that was paid by it to plaintiff 1 with interest at Rs. 18% per annum. Since the defendant denied its liability vide its reply notice dated 29-8-2000, the said Insurance Company joined by the insured, as plaintiffs, had instituted a suit for recovery of money against the defendant-transporter.
3. The defendant after receipt of summons appeared through its Counsel and filed its Written Statement, wherein, it contended that the plaintiffs had not issued a valid notice under Section 10 of the Carriers Act, 1865 within the stipulated time and that there was no privity of contract between it and the plaintiff 2, therefore, the suit of the plaintiffs was not maintainable.
The defendant also contended that the plaintiffs are governed by the terms and conditions and limitations of liability appearing in the Airway Bill. Since the liability on the part of the defendant was limited only to an extent of a sum of Rs. 1,000/-, the plaintiffs are not entitled for any higher amount than a sum of Rs. 1,000/-. The defendant also denied the plaint averments with respect to the alleged loss said to have been caused during transit of goods and the claim made by the plaintiffs in their suit.
4. Based on the pleadings of the parties, then Trial Court framed the following issues for its consideration:
"(1) Whether the plaintiffs prove that the defendant was engaged for transportation of goods under consignment Note No. F-510185970, dated 16-7-1998?
(2) Whether plaintiffs prove the consignment was damaged; while it was in the custody of defendant for transportation and due to the negligence of defendant?
(3) Whether the plaintiffs prove that the defendant as carrier liable to compensate the damage/loss with interest?
(4) Whether the plaintiffs prove that the plaintiff 2 being the insurer has settled the claim of Rs. 3,87,000/- on 31-3-1999?
(5) Whether the plaintiffs prove that the plaintiff 1 has executed a letter of subrogation and special power of attorney in favour of plaintiff 2 to claim damages along with interest?
(6) Whether the plaintiffs are entitled to suit claim?
(7) What order and decree?"
On the side of the plaintiffs, the Assistant Manager of plaintiff 2 one Sri B. Prithvi Kumar was examined as P.W. 1 and documents from Exhibits P. 1 to P. 13 were got marked. On behalf of the defendant, one Sri N. Balakrishna who is said to be the Power of Attorney holder was examined as D.W. 1 and document at Ex. D. 1 was got marked.
5. On hearing both side and perusing the materials placed before it, the Trial Court by its impugned judgment and decree dated 30-1-2010 decreed the suit of the plaintiff 2 for a sum of Rs. 4,66,893/- with interest at 6% per annum on Rs. 3,87,000/- from the date of suit till the date of realisation. It is against the said judgment and decree, the defendant in the Court below has preferred this appeal.
6. The Lower Court records were called for and the same are placed before this Court.
7. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
8. Heard the arguments of the learned Counsels from both side and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
9. After hearing the learned Counsels appearing for both parties, the only point that arises for my consideration is:
"Whether the defendant could able to establish that the judgment and decree under appeal deserves to be set aside and the suit of the plaintiffs deserves to be dismissed?"
P.W. 1, in the form of affidavit evidence in his Examination-in-Chief, has reiterated the contentions taken up by the plaintiffs in the plaint, apart from stating that the plaintiff 1 which was insured under it had consigned the goods for transportation with the defendant from Bengaluru to their Unit at Chennai, it was also found that the goods entrusted for carriage was damaged. Accordingly, since the Insurance policy was invoked and the claim was made by the plaintiff 1, the loss was assessed based on the Surveyor's report, who assessed the loss at a sum of Rs. 4,35,010/- and opined that the damage to the consignment was caused due to careless handling by the carrier of goods. The Insurance claim was finally settled for a sum of Rs. 3,87,000/- and accordingly, the said sum was paid to the plaintiff 1 on 31-3-1999. It is thereafter the plaintiff 1 executed the documents in the form of subrogation and Special Power of Attorney in favour of the plaintiff 2-Insurance Company. As such, the plaintiff 2-Insurance Company has been subrogated to the rights of the first plaintiff. Stating so, P.W. 1 got marked a letter of authority to show that he is authorised to lead evidence in the matter and got it marked at Ex. P. 1. He got marked the consignment note at Ex. P. 2, dated 16-7-1998, office copy of letter of plaintiff 1 dated 26-8-1998 at Ex. P. 3, the delivery certificate dated 28-8-1998 issued by the defendant to the plaintiff 1 at Ex. P. 4, the Invoice dated 31-7-1998 of the defendant-Company at Ex. P. 5, the Surveyor's report at Ex. P. 6, letter of subrogation and Special Power of Attorney executed in favour of plaintiff 2 dated 13-4-1999 at Ex. P. 7; office copy of the letter dated 24-4-1999 at Ex. P. 8, postal acknowledgement card at Ex. P. 9, letter dated 13-10-1999 from the Insurance Services Centre to the second plaintiff at Ex. P. 10, copy of the legal notice dated 31-8-2000 sent to the defendant by the second plaintiff at Ex. P. 11, reply to the said notice by the defendant dated 28-9-2000 at Ex. P. 12 and Disbursement (claims) Voucher dated 31-3-1999 between plaintiff 1 and plaintiff 2 at Ex. P. 13.
10. D.W. 1-N. Balakrishna, Power of Attorney holder of defendant, in his evidence also has reiterated the contentions taken up by the defendant in its Written Statement. Though he has denied the plaint averments with respect to the allegations regarding the damages and the quantum of the claim made by the plaintiffs, but, he has not denied specifically that the goods were entrusted to it for transportation from Bengaluru to Chennai by plaintiff 1. However, he has stated that there was no privity of contract between the defendant and plaintiff 2. Further he has also stated that loss of goods or Shortfall or damage is bound by the terms and conditions of the Airway Bill issued by it, which Airway Bill, in the instant case, has confined its liability to only a sum of Rs. 1,000/-. As such, the defendant cannot accept any liability beyond a sum of Rs. 1,000/-, which is against the Airway Bill.
11. In the light of the above pleadings and evidence of the parties, the learned Counsel for the appellant (defendant) in his argument submitted that the alleged insurance contract is only between the plaintiff 1 and plaintiff 2, but the plaintiffs have not proved any such insurance contract between them since they have not produced any insurance policy copy. The said argument of the learned Counsel for the defendant is not acceptable, for the reason that, the plaintiffs apart from their pleadings, P.W. 1 in his evidence also has clearly and specifically stated that the first plaintiff had insured with plaintiff 2-Insurance Company against the loss or damage in transit of goods for a period of one year commencing from 29-6-1998. Further, the contention of the plaintiff 2 in Ex. P. 11 the notice sent to the defendant also mentions that the consignor i.e. plaintiff 1 had insured the consignment of goods with plaintiff 2-Insurance Company. The said statement made in the legal notice at Ex. P. 11 also has not been denied by the defendant in its reply notice which is at Ex. P. 12.
Thus, with respect to the existence of an Insurance Policy for transshipment between plaintiff 1 and plaintiff 2 at the relevant point of time, it has been initially brought to the notice of the defendant through Ex. P. 11 and thereafter in the pleading and lastly in the evidence of P.W. 1 in his Examination-in-Chief, which has not been specifically denied by the defendant.
For the reasons observed above, the argument of the learned Counsel on the point that there was no insurance contract between the plaintiff 1 and plaintiff 2, is not acceptable.
12. Thus, from the pleadings and evidence of the parties, the undisputed fact remains that the plaintiff 1 had insured under plaintiff 2-Insurance Company for transit of goods, viz. Eiki Plasma Display PLD 42 UE Projector for its transportation from Bengaluru to their unit at Chennai on 16-7-1998 through the defendant - a common carrier. However, the said goods were delivered in a damaged condition to the consignee on the next day. To the extent that the goods delivered was damaged, apart from the evidence of P.W. 1, is further corroborated from the very document at Ex. P. 4-delivery certificate issued by none else than the defendant itself. In the said delivery certificate, it is clearly mentioned that the said goods which was delivered to the consignee was delivered in a damaged condition. The very same delivery certificate issued by the defendant also mentions that as per the invoice submitted to it, the original value of the goods was declared as Rs. 4,45,767/-. Therefore, the consignment of goods for its transportation, the goods sustaining damage during transit and the goods being delivered in a damaged condition to the plaintiff 1, all stand proved.
13. According to the plaintiffs, plaintiff 1 preferred a claim with plaintiff 2-insurer for a sum of Rs. 4,45,767/-, whereas the Surveyor appointed by the second plaintiff for the assessment of the quantum of damages and the cause for damage had quantified the damage at Rs. 4,35,010/-. However, the claim was settled for a sum of Rs. 3,87,000/- between the plaintiffs. The evidence of P.W. 1 is also on the similar lines. However, the defendant has disputed the same.
In that regard, another point of argument of the learned Counsel for the appellant/defendant was that, the extent of damage caused to the goods has not been proved. However, the Surveyor who is said to have surveyed and assessed the extent of damage since has not given any notice to the defendant before assessing the loss, the said report cannot be accepted and acted upon.
14. Learned Counsel for the respondents/plaintiffs in his argument though conceded that the Surveyor has not issued any notice to the defendant before proceeding for assessment of damage caused to the goods, but vehemently submitted that the act of the Surveyor of assessing the damage to the goods was at an early date before the letter of subrogation was made in favour of plaintiff 2 by plaintiff 1. Learned Counsel submitted that the said Surveyor was to ascertain the liability of the insured i.e. plaintiff 1 for compensation under the Insurance policy, as such, at that stage, the question of the Surveyor issuing notice to the consignor would not arise and is also not required.
In his support, learned Counsel relied upon a judgment of this Court in the case of Transport Corporation of India Limited, Bangalore v. M/s. New India Assurance Company Limited, Bangalore and Another, 2000(3) Kar. L.J. 130, wherein also, one of the contentions taken up by the appellant was the non-service of notice upon it by the Surveyor before assessing the damages, wherein in paragraph 8 of the said judgment, the Court relying upon another judgment of this Court in Mysore State Co-operative Marketing Society Limited v. Ko Maung Gyi and Sons and Others, 1973(1) Mys. L.J. 369, was pleased to observe that the contention of the defendant that no notice has been given at the time of conducting survey and the defendant is not bound by the said report, cannot be accepted.
15. In the instant case, admittedly, the Surveyor who is said to have conducted survey with respect to the damage to the goods under transport has not caused any notice upon the transporter before he assessing the quantum of damage and the cause for it. No doubt the said assessment of damages had taken place before the plaintiffs initiating any legal action against the transporter i.e. the defendant. However, the same would not have prevented the Surveyor to cause notice to the transporter (defendant) also, still, merely because the said Surveyor has not issued such a notice to the defendant, by itself, it would not make Ex. P. 6 a suspicious document. It is also for the reason that the defendant nowhere in his Written Statement has taken a stand that the Surveyor did not give any notice to it before assessing the loss to the goods. No such pleading which the defendant was required to have taken has been taken by it at the earliest point of time.
Secondly, there is no dispute with respect to the damage that is said to have been caused to the goods under transit since as already observed above, Ex. P. 4 which is nothing but a delivery certificate issued by the defendant itself proves the damage to the goods.
Thirdly, the evidence of P.W. 1 to the effect that it engaged the services of a qualified Surveyor by name Sri D. John Pannirselvam, who is a licenced Loss Assessor to cause inspection and to submit the survey report, has also not been denied or disputed in the cross-examination of P.W. 1.
Fourthly, when P.W. 1 has produced and marked the said survey report at Ex. P. 6, the defendant in the cross-examination of the said witness has not denied the correctness of the said document at Ex. P. 6. It has nowhere disputed the quantification of the loss as assessed by the Surveyor in his report at Ex. P. 6.
Lastly, the defendant also as D.W. 1 has not led any evidence stating that the quantum of loss calculated and arrived at by the Surveyor was incorrect.
16. For all these reasons, even though the Surveyor is not said to have issued notice to the defendant-transporter, by that itself, the survey report at Ex. P. 6 cannot be doubted or suspected. As such, the argument of the learned Counsel for the appellant/defendant that no prior notice was issued by the Surveyor before assessment of the loss and the extent of damage is also not proved, is not acceptable.
17. Another point of argument of the learned Counsel for the appellant/defendant was that, even if it is assumed that the defendant is liable to compensate the plaintiffs towards the alleged damage to the goods, still, the liability of the defendant cannot exceed a sum of Rs. 1,000/- since the same is restricted to a sum of Rs. 1,000/- in the Airway Bill which is produced by the plaintiffs themselves and marked at Ex. P. 2.
No doubt, the said Ex. P. 2 clearly mentions that the Company's liability on the shipment is limited to a sum of Rs. 1,000/-, however, the learned Counsel for the appellant in his argument relying upon a judgment of this Court in the case of Basavaraj Yellappa Pundi v. National Insurance Company Limited, Belgaum and Another 2005(5) Kar. L.J. 388, ILR 2005 Kar. 3403 submitted that the common carrier cannot restrict or curtail its liability with such clauses. In the said judgment, a Co-ordinate Bench of this Court relying upon another judgment of a Division Bench of this Court in the case of Inter-State Transports v. Pfizer Limited, ILR 1987 Kar. 2870 (DB), was pleased to hold that, the rights and liabilities arising on account of the appellant carrying the goods of the consignee as a public carrier cannot be restricted or restrained by virtue of a contract.
In Pfizer case (supra), a Division Bench of this Court in paragraph 11 of its judgment, in turn referring to a judgment in the case of Hercules Insurance Company v. Ganesh Transport Company and Another, 1969(1) Mys. L.J. 316 (DB) was pleased to observe as below:
"The effect of Sections 6 and 8 of the Act is, that a common carrier is liable for loss and damage caused due to its negligence or misconduct of its agents or servants, and that liability cannot be limited by contract. Therefore, on the principles laid down by the Division Bench of this Court, it is futile for Mr. Prabhu to contend that the liability for any damages due to negligence or misconduct on the part of the defendant, its employees, servants and agents is excluded by a clause more particularly, specified in the G.C. Note. In that case also, a similar clause found in the G.C. Note was considered by the Division Bench and it took the view that condition that the "the goods to be sent at owner's risk and that no responsibility would be taken in case of fire or accident" do not and cannot protect a common carrier if the damages flowed from its negligence or misconduct. So, it was incumbent on the defendant to prove that there was no negligence or misconduct on its part."
From the above referred judgment of a Division Bench of this Court, which was subsequently followed by a Co-ordinate Bench of this Court in Basavaraj Yellappa Pundi's case (supra), it is clear that a common carrier, as a public carrier cannot restrict by virtue of a contract, its liability as a carrier for any damages caused by it to the goods under transit towards its liability to compensate the consignee. Therefore, the argument of the learned Counsel for the appellant/defendant on the said point also is not acceptable.
18. The last phase of argument of the learned Counsel for the appellant/defendant, which in fact, could have been treated as the first point of argument is that, P.W. 1 has no authority to lead evidence on behalf of the plaintiffs. Learned Counsel submitted that the said witness has not produced any Power of Attorney to show that he is empowered to lead evidence.
19. Per contra, learned Counsel for the plaintiffs in his argument submitted that the letter of authority at Ex. P. 1 clearly shows that P.W. 1 was authorised to lead his evidence in this case. On the contrary, D.W. 1 had no authority to lead his evidence, even though he has produced his Special Power of Attorney at Ex. D. 1, since in his cross-examination, he has clearly admitted that the said Special Power of Attorney had not empowered him to lead evidence in the matter.
The plaint is signed by the Divisional Manager of the second plaintiff-Insurance Company in his capacity as a Divisional Manager of the Insurance Company. Even though P.W. 1 is not the signatory of the said plaint, but, he is the officer of the second plaintiff-Insurance Company and has produced Ex. P. 1, which is an authorisation letter, which clearly shows that the Divisional Manager has authorised him to give evidence in this particular case. Further P.W. 1 in his evidence has clearly stated that he is empowered to represent the plaintiff 2 in this case. Except making a suggestion to him in his cross-examination that he has no authority to depose in this case, the d
Please Login To View The Full Judgment!
efendant has not specifically denied that the letter of authority produced by him at Ex. P. 1 does not authorise him to give evidence or that it is not a document which would suffice to show that he is empowered to lead his evidence. Therefore, the last point of argument of the learned Counsel for the appellant (defendant) is also not acceptable. 20. Barring the above, the appellant/defendant has not raised any other ground worth to be considered and reasoned upon. On the other hand, a perusal of the impugned judgment and decree would go to show that the Trial Court has appreciated the evidence led before it in its proper perspective. As already observed above, the consignment of goods by plaintiff 1 with the defendant for its transportation from Bengaluru to their unit at Chennai and the goods sustaining damage during transportation, are clearly established. The survey report as per Ex. P. 6 having remained uncontroverted shows the extent of damage caused to it and also the fact that the second plaintiff had settled the matter at a lesser quantum than the actual damage assessed by the Surveyor at Ex. P. 6. It shows that the damage caused has been properly and appropriately assessed and the said damage was due to careless handling and negligence on the part of the defendant-carrier. Since the second plaintiff as an insurer has settled the claim made by the consignor, i.e. the plaintiff 1 and obtained the letter of subrogation and power of attorney, it has entered into the steps of plaintiff 1, the original consignor and joined by the said consignor has sued the defendant. Since the Trial Court has appreciated all these aspects and arrived at a proper conclusion, and decreed the suit of the plaintiffs, I do not find any reason to interfere in it. Accordingly, I proceed to pass the following: ORDER (i) The appeal is dismissed; (ii) The judgment and decree dated 30-1-2010 passed in O.S. No. 7939/2000 by the learned XXXIII Additional City Civil and Sessions Judge at Bangalore City (CCH-33), is hereby confirmed. In view of disposal of the appeal, Misc. Cvl. No. 15164/2010 does not survive for consideration. Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.