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Indo Arya, Central Transport Ltd, Chennai v/s T.T.K. Pharma, Ltd, Rep by Power Agent/Subrogee, The Oriental Insurance Company Ltd, Chennai & Another

    S.A. No. 1607 of 2008 & M.P. Nos.1 of 2008 & 1 & 2 of 2010

    Decided On, 10 March 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Appellant: P.K. Murali, Advocate. For the Respondents: No Appearance.



Judgment Text

(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 26.09.2007 made in A.S.No.484 of 2006 on the file of the Fast Track Court Judge-II, City Civil Court, Chennai, confirming the judgment and decree dated 22.03.2006 made in O.S.No.3898 of 2001 on the file of the XV Assistant Judge, City Civil Court, Chennai.

1. Challenge in this second appeal is made to the judgment and decree dated 26.09.2007 passed in A.S.No.484 of 2006 on the file of the Additional District Judge, Fast Track Court-II, Chennai, confirming the judgment and decree dated 22.03.2006 passed in O.S.No.3898 of 2001 on the file of the XV Assistant Judge, City Civil Court, Chennai.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. The defendant in O.S.No.3898 of 2001, who had lost in both the courts is the appellant in this second appeal.

4. Suit for recovery of money.

5. According to the plaintiffs, the first plaintiff dispatched the consignment valued at Rs.2,92,936/- from Chennai to Vijayawada through the defendant and the consignment was entrusted in good condition and the defendant undertook to carry and delivery the consignment to the consignee, however the defendant had not delivered the consignment and also issued the non-delivery certificate and thereby the plaintiff having sustained the loss of Rs.2,96,839/- being the value of the consignment not delivered and the first plaintiff having taken the insurance from the second plaintiff and as per the terms and conditions of the Insurance Policy, the second plaintiff has settled the claim of the first plaintiff and by way of the letter of Subrogation cum Special Power of Attorney executed between the plaintiffs 1 and 2, the second plaintiff, the Insurance Company is entitled to maintain the suit for the recovery of the suit claim and accordingly come forward with the suit claiming the value of the consignment not delivered by the defendant.

6. The defendant resisted the plaintiffs' suit contending that the suit consignment had been entrusted to it and also further admitted the issuance of non-delivery certificate. However, according to the defendant, the consignment was booked under the owners risk and the suit is barred by limitation and as the first plaintiff claim has been settled by the second plaintiff pursuant to the Insurance Policy, the suit is not maintainable and hence the suit is liable to the dismissed.

7. In support of the plaintiffs' case, P.W.1 was examined. Exs.A1 to A9 were marked. On the side of the defendant, D.W.1 was examined. Ex.B1 was marked.

8. The Courts below on an appreciation of the materials available on record, both oral and documentary and the submissions putforth by the respective parties, were pleased to decree the suit in favour of the plaintiffs. Challenging the same, the present second appeal has been laid.

9. It is not in dispute that the suit consignment has been entrusted to the defendant for delivery to the consignee by the first plaintiff and the defendant had not disputed the same. The same could also be gathered from Ex.A3, the lorry receipt issued by the defendant. It has also been admitted by the defendant that the consignment was entrusted to it properly. Therefore the defendant as the carrier has the bounden duty to deliver the goods under proper care. As rightly held by the Courts below, no acceptable and reliable materials had been placed by the defendant to show that they had taken all the care and protection in carrying the consignment safely to the destination and from the letter issued by the defendant dated 08.09.1998 marked as Ex.A5, it is found that the consignment had not been delivered by the defendant. Accordingly the statutory notice under section 10 of the Carriers Act had been issued by the first plaintiff and pursuant to the Insurance Policy, the insurer, the second plaintiff having settle the claim of the first plaintiff on the basis of the Letter of Subrogation, the plaintiffs have laid the suit.

10. As rightly held by the Courts below, the defendant having admitted the non-delivery of the suit consignment under Ex.A5, it cannot take the plea that the same had been issued only to enable the first plaintiff to get the reimbursement from the second plaintiff under the Insurance Policy. When from the Letter of Subrogation and Special Power of Attorney issued by the first plaintiff to the second plaintiff marked as Ex.A7 and when the second plaintiff had settled the claim of the first plaintiff based on the Insurance Policy, it is found that as held by the Courts below, the plaintiffs are entitled to maintain the suit.

11. Considering the reasonings and conclusions of the Courts below for upholding the plaintiffs' case, they being founded on the proper appreciation of the materials available on record, both on factual matrix as well as on the point of law and when they are not shown to be in any manner, perverse, illogical and irrational, I do not find any va

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lid reason to interfere with the same. Resultantly, no substantial question of law is found to be involved in this second appeal. 12. In conclusion, the judgment and decree dated 26.09.2007 passed in A.S.No.484 of 2006 on the file of the Additional District Judge, Fast Track Court-II, Chennai, confirming the judgment and decree dated 22.03.2006 passed in O.S.No.3898 of 2001 on the file of the XV Assistant Judge, City Civil Court, Chennai are confirmed. Resultantly, the second appeal is dismissed. Consequently, connected miscellaneous petitions are closed.
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