w w w . L a w y e r S e r v i c e s . i n



M/s. Chennai Port Trust, represented by its Power Agent/Subrogee & Another v/s M/s. Kuwait Airways, represented by M/s. National Travel Service


Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Active] CIN = L40105WB1919PLC003263

Company & Directors' Information:- TRAVEL CORPORATION (INDIA) LIMITED [Amalgamated] CIN = U63040MH1961PLC012067

Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

Company & Directors' Information:- S L S POWER CORPORATION LIMITED [Active] CIN = U40109AP2005PLC047008

Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- B S AND SERVICE PRIVATE LIMITED [Active] CIN = U92419MH1946PTC004912

Company & Directors' Information:- R P S AIRWAYS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U62200BR2011PTC016880

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- NATIONAL TRAVEL SERVICE PRIVATE LIMITED [Strike Off] CIN = U63040MH2006PTC160418

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

Company & Directors' Information:- N M S POWER PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089747

Company & Directors' Information:- P R B POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG1995PTC020647

Company & Directors' Information:- S V G POWER PRIVATE LIMITED [Active] CIN = U40300AP2012PTC084435

Company & Directors' Information:- TRUST TRAVEL PRIVATE LIMITED [Active] CIN = U63040MH1976PTC019396

Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- O L G POWER P LTD [Active] CIN = U30007TN1991PTC020898

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- TRAVEL INDIA PRIVATE LIMITED [Active] CIN = U63090MH2012PTC230882

Company & Directors' Information:- M M TRAVEL SERVICE PRIVATE LIMITED [Active] CIN = U63040MH1999PTC122015

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- TRAVEL PORT PRIVATE LIMITED [Strike Off] CIN = U00738KA1998PTC024364

Company & Directors' Information:- TRAVEL 4 U PRIVATE LIMITED [Strike Off] CIN = U63040KL2002PTC015752

Company & Directors' Information:- F C S AIRWAYS LIMITED [Strike Off] CIN = L51909DL1998PLC092804

Company & Directors' Information:- F C S AIRWAYS LIMITED [Strike Off] CIN = U51909HR1998PLC092804

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- J D INDIA TRAVEL PRIVATE LIMITED [Active] CIN = U63040TN2007PTC063061

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- M R AIRWAYS PRIVATE LIMITED [Strike Off] CIN = U74120UP2010PTC039870

Company & Directors' Information:- AIRWAYS PRIVATE LIMITED [Strike Off] CIN = U62100PN2000PTC014770

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- S K POWER INDIA PRIVATE LIMITED [Strike Off] CIN = U31101KA2006PTC039172

Company & Directors' Information:- U C TRAVEL SERVICE PRIVATE LIMITED [Strike Off] CIN = U63040DL2007PTC164256

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- SERVICE CORPORATION LIMITED [Dissolved] CIN = U93090KL1946PLC001075

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- V T TRAVEL PRIVATE LIMITED [Active] CIN = U63090PN2012PTC145185

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- U & I TRAVEL (INDIA) PRIVATE LIMITED [Strike Off] CIN = U63030TG2012PTC085010

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- M & S TRAVEL SERVICE PRIVATE LIMITED [Strike Off] CIN = U63000HR2015PTC056282

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- J N PORT PRIVATE LIMITED [Active] CIN = U45209GJ2013PTC073918

Company & Directors' Information:- THE NATIONAL TRUST PVT LTD [Strike Off] CIN = U17231WB1931PTC009779

Company & Directors' Information:- POWER PORT PRIVATE LIMITED [Strike Off] CIN = U32109KA1990PTC011470

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

Company & Directors' Information:- NATIONAL TRUST LIMITED [Dissolved] CIN = U67190KL1943PLC000783

Company & Directors' Information:- INDIA TRAVEL SERVICE LIMITED [Under Liquidation] CIN = U99999MH1945PTC004416

    S.A. No. 1390 of 2008

    Decided On, 29 January 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Appellants: Gunaswaminathan for M/s. Nageswaran & Narichania, Advocates. For the Respondent: Vijay Rajasekar M/s. Fox Mandal & Associates.



Judgment Text

(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 20.09.2007 passed in A.S.No.730 of 2006 on the file of the 7th Additional City Civil Court, Chennai, setting aside the Judgment and Decree dated 06.04.2006 passed in O.S.No.5778 of 2000 on the file of the 1st Assistant City Civil Court, Chennai.)1. Challenge in this second appeal is made to the judgment and decree dated 20.09.2007 passed in A.S.No.730 of 2006 on the file of the 7th Additional Judge, City Civil Court, Chennai, setting aside the judgment and decree dated 06.04.2006 passed in O.S.No.5778 of 2000 on the file of the 1st 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. He plaintiffs in O.S.No.5778 of 2000 are the appellants in this second appeal.4. Suit for recovery of money.5. Riefly stated, the case of the plaintiffs is that the first plaintiff placed an order with the German company viz., M/S.CEGKLEC ANLAGEN and ANTRIEES SYSTEM GMBH, Berlin, Gemany, for the supply of one item of spare for KHIC crane vide order dated 21.07.1997 and opened an irrevocable L/C in favour of the German supplier and as per the invoice dated 04.06.1997, the value of the consignment on F.O.B basis is DM 9300 at the exchange rate of Rs.21.98 for 1 DM. The Rupee equivalent of which amounts to Rs.2,04,600/. The abovesaid consignment was entrusted to the defendant at Frankfurt to be safely delivered in the same apparent good order and condition at Madras Airport. The defendant acknowledged the receipt of the same vide their Master Airway Bill dated 18.06.1997 issued by the consolidator of the cargo and contrary to the undertaking given by the defendant, failed to deliver the consignment and thereby, committed breach of their statutory obligation. M/s.Balmer Lawrie & Co Ltd., on behalf of the defendant, vide notice dated 21.06.1997, informed the first plaintiff about the alleged arrival of the consignment on 20.06.1997 by the defendant’s flight lo.KU 2307 and demanded the freight amount of Rs.1647/- which was duly paid, however, inasmuch as the cargo intended for the first plaintiff was not available for delivery on 28.08.1997, the local agents of the defendant, issued a short landing certificate and also confirmed that tracer action has been carried out on account of short landing of the cargo entrusted to the defendant. The first plaintiff suffered a pecuniary loss amounting to Rs.2,03,256/- and demanded the payment of the said amount vide letter dated 10.09.1997 addressed to the defendant. On 18.10.1997, the defendant acknowledged the claim, admitted short landing and directed the first plaintiff to take up the issue with their underwriter. The short landing and the pecuniary loss sustained by the first plaintiff is only on account of the failure of the defendant to perform the statutory duty in not delivering the cargo entrusted to them and the defendant is not entitled to limit their liability inasmuch as they have not disclosed as to how the cargo in question was dealt with during the entire period when they had the exclusive custody of the same during the air carriage. Hence, the Court should presume that there was wilful negligence and misconduct on the part of the defendant and thereby, liable to pay the entire value of the cargo short landed. The second plaintiff is the underwriter of the cargo. The cargo in question was insured with the second plaintiff vide policy dated 26.02.1997 and based on the same, the second plaintiff indemnified the insured i.e. the first plaintiff by paying a sum of Rs.2,03,256/- and thus got subrogated to the first plaintiff’s right of recovery of the amount and therefore, the second plaintiff is also entitled to maintain the suit by virtue of the letter of subrogation. The second plaintiff’s agents, vide letter dated 09.02.1998, lodged a claim with the defendant and also submitted the original letter of subrogation and Special power of Attorney to the defendant as claimed by the defendant and the defendant’s Bombay office on 12.06.1998 wrote a letter to the recovery agents offering a sum of Rs.898/- allegedly the amount payable as per the airway bill conditions of contract. Thereby, the defendant has admitted its liability for short landing but only bargaining for the payment of compensation and the recovery agents had also explained as to how the defendant is liable to pay the entire amount of the value of the cargo and inasmuch as the defendant had failed and neglected to effect the compensation demanded by the plaintiffs, according to the plaintiffs, they had been necessitated to lay the suit for appropriate reliefs.6. The defendant resisted the plaintiffs’ suit contending that the plaintiffs’ suit is bad for non joinder of necessary parties and according to the defendant, the first plaintiff's supplier had entrusted the consignment to the defendant’s representatives at Frankfurt with instructions to deliver the same at M/S.Balmer Lawrie & Co., Ltd. and the claim of the plaintiffs that M/s.Balmer Lawrie & Co., Ltd., issued air cargo arrival notice dated 21.06.1997 on behalf of the defendant is false, as the defendant has no relationship with Balmer Lawrie & Co., Ltd.,. As per the air way bill produced by the plaintiffs, only M/s.Balmer Lawrie & Co Ltd., is the consignee and not the plaintiffs. In such circumstances, the plaintiffs should have impleaded M/s.Balmer Lawrie & Co Ltd., and M/s.CEGKLEC AEG ANALGEN and ANTRIEES SYSTEME Gmbh, Berlin – Germany, the supplier and the suit is liable to be dismissed for their non impleadment as parties. The defendant denied that the short landing of the consignment was only on account of its failure to perform the statutory duty. There is no cause of action for the plaintiffs’ suit. The plaintiffs are not entitled to urge the Court to presume that there was wilful negligence on the part of the defendant in the handling of the consignment during the transport and the second plaintiff insurer is liable to compensate the loss incurred by the first plaintiff and the amount of compensation claimed by the plaintiffs is on the higher side, the amount to which the plaintiffs would be entitled to, as worked out by the defendant, is at Rs.898/. The plaintiffs demanded a payment of Rs.7954.32 and therefore, according to the defendant, its liability is limited only to the extent of Rs.7954.32 and therefore, the defendant had reiterated that the second plaintiff is entitled to only Rs.898/- and the said calculation was based on the Carriers Maximum Legal liability to Warsaw Convention and therefore, there is no question of the defendant being liable to pay the suit amount as put forth by the plaintiffs. Hence, according to the defendant, the suit is liable to be dismissed as devoid of cause of action with costs.7. In support of the plaintiffs’ case, PW1 was examined and Exs.A1 to A20 were marked. On the side of the defendant, DW1 was examined and Exs.B1 and B2 were marked.8. On an appreciation of the materials placed on record, both oral and documentary and the submissions put forth by the respective parties, the trial Court was pleased to decree the suit in favour of the plaintiffs as prayed for. On appeal preferred by the defendant, the first appellate Court, on a consideration of the materials placed on record, both oral and documentary and the submissions put forth by the respective parties, was pleased to set aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the defendant, resultantly, dismissed the plaintiffs’ suit with costs. Impugning the judgment and decree of the first appellate Court, the plaintiffs have preferred the second appeal.9. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration."a. Whether the Defendant / Respondent is absolved of its liability under the carriage by Air Act having admitted loss of cargo in their custody and their liability for the loss?b. Whether the Defendant/Respondent can limit their liability under Rule 22 Schedule II of the Carriage by Air Act?c. Whether the defendant can escape liability in the absence of evidence as to how the cargo was handled by them?d.Whether the defendant is liable for the entire value of the cargo lost as provided under Article 25 of the Schedule II Chapter III of Carriage by Air Act?"10. Considering the materials placed on record and the submissions put forth by the respective parties, particularly, Exs.A2 to A6, it is noted that German supplier had transported the suit consignment to the first plaintiff through the defendant’s airway and the defendant had also acknowledged the receipt of the consignment and undertook the safe delivery of the consignment at the destination. The materials would go to reveal that the consignment was intended only for the first plaintiff. It is found that M/s.Balmer Lawrie & Co Ltd., vide air cargo arrival notice dated 21.06.1997 had informed the first plaintiff about the alleged arrival of the consignment, which document has been marked as Ex.A7 and the demand made for the freight amount of Rs.1647/- in Ex.A7, according to the plaintiffs, had been paid. Based on the abovesaid letter marked as Ex.A7, the defendant would take the stand that the consignment transported through it, is meant only to be delivered at M/s.Balmer Lawrie & Co Ltd., and not to the first plaintiff. However, the Courts below have concurrently held that the consignment involved in the suit is only meant to be transported to the first plaintiff by the German supplier and not to M/s.Balmer Lawrie & Co Ltd.,.11. From the letters dated 28.08.1997 and 18.10.1997 marked as Exs.A8 and A10 issued by the National Travel Service, it is found that the suit consignment had not been delivered intact and there is a short landing and one carton was declared to be missing and it was also informed that tracer action has been carried out. Though the defendant would claim that he is no way connected with the abovesaid letters issued by the National Travel Service, however, considering the contents of the abovesaid letters and the evidence of DW1, all put together would go to disclose that the abovesaid letters had been only sent on behalf of the defendant as concurrently held by the Courts below. Therefore, from the abovesaid letters, it is evident that the defendant has admitted the short landing of the consignment and thereby, it is seen that the defendant is liable to compensate the first plaintiff for the loss sustaining by them as the consignment had been failed to be delivered by the defendant in good condition.12. In this connection, it is also to be noted that the suit consignment had been insured with the second plaintiff and the second plaintiff having indemnified the first plaintiff by paying the value of the consignment and thereby, the second plaintiff got subrogated to the rights of the first plaintiff and the abovesaid facts could be gathered from the letter of subrogation and special power of attorney marked as Ex.A11.13. Following the same, it is noted that the agent of the second plaintiff lodged a complaint to the defendant to pay the compensation for the inaction and violation of the defendant to deliver the consignment intact and in good condition and the same could be gathered from the letters marked as Exs.A12 & A13. Vide letter dated 12.06.1998 marked as Ex.A17, the defendant agreed to pay a sum of Rs.898/- and the same was not accepted by the second plaintiff and the second plaintiff explained to the defendant that its liability is not limited to Rs.898/-. Inasmuch as the defendant reiterated that its liability is only to pay a sum of Rs.898/-, according to the plaintiffs, inasmuch as the consignment had been handed over to the defendant for safe transportation and as the defendant is bound to deliver the consignment at the destination and as the defendant has failed to disclose as to how the cargo had been dealt with, according to the plaintiffs, the presumption should be raised that the short landing of the consignment was an account of gross wilful misconduct and negligence on the part of the defendant and further put forth the case that the defendant is not entitled to limit its liability by contending that it is liable to pay only a sum of Rs.898/-, particularly, not having disputed the short landing of the consignment. Hence, according to the plaintiffs, the defendant is liable to pay the suit amount as claimed by them and come forward with the suit against the defendant.14. Based on the abovesaid materials, the only plea that has been taken by the defendant is that the plaintiffs’ suit should fail for non impleadment of M/s.Balmer Lawrie & Co Ltd.,. However, when the materials placed on record would go to show that the suit consignment has been transported by the German supplier only for the first plaintiff and M/s.Balmer Lawrie & Co Ltd., had only by way of air cargo arrival notice marked as Ex.A7, informed about the arrival of the consignment, however, in fact, the consignment had not been delivered at the destination intact by the defendant, particularly, when the defendant had acknowledged the receipt of the consignment and undertaken to safely deliver the same at the destination i.e. the first plaintiff. On the other hand, as abovestated, having admitted the short landing of the consignment vide Exs.A8 and A10, all put together, the trial Court was found to be justified in holding that there is short landing of the consignment only due to the wilful negligence and misconduct on the part of the defendant as put forth by the plaintiffs and therefore, right in concluding that the plaintiffs are entitled to the suit amount as put forth by them.15. On a reading of the judgment of the first appellate Court, the first appellate Court has also, in most of the aspects, concurred with the determination of the trial Court, however, it would only go to reject the plaintiffs’ suit on the footing that M/s.Balmer Lawrie & Co Ltd., should have been impleaded as a party to determine the quantum of compensation liable to be paid by the plaintiffs.16. However, the abovesaid determination of the first appellate Court is found to be totally incorrect. When the materials placed on record conjointly seen go to disclose that the consignment transported is only to be delivered to the first plaintiff and M/s.Balmer Lawrie & Co Ltd., had only informed about the arrival of the cargo, however, the facts remains that the cargo having not reached the destination intact and on the other hand, the defendant having admitted the short landing of the consignment as above pointed out, in such view of the matter, M/s.Balmer Lawrie & Co Ltd., is not a proper and necessary party for adjudicating the issues involved between the plaintiffs and the defendant. Therefore, the contention of the defendant that the plaintiffs’ suit should fail for the non impleadment of M/s.Balmer Lawrie &Co Ltd., as well as the German supplier cannot at all be countenanced in any manner. More particularly, when the entrustment of the consignment by the German supplier is not controverted and the value of the consignment has also been disclosed in the invoice, packing list, L/C etc., the German supplier is found to be not a proper and necessary party to the proceedings.17. Considering the submissions put forth by the respective parties, it is found that as per The second schedule, Rule 18(1) of the Carriage By Air Act, 1972, the carrier is liable for the damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air and as per Rule 18 (2) the carriage by air within the meaning of sub-rule(1) comprises the period during which the luggage or goods are in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever. Further, as per Rule 19 of the abovesaid Act, the carrier is liable for the damage occasioned by delay in the carriage by air of passengers, luggage or goods. Considering the abovesaid provisions of law in toto, when it has been admitted by the defendant that the consignment had been entrusted to it for delivering the same at the destination i.e. to the first plaintiff, when the defendant has admitted that there is short landing / non delivery of the consignment as above pointed out and also would admit its liability in the restricted manner for the same and when there is no material on the part of the defendant worth acceptance to hold that it had taken every care of the consignment during the transport till the delivery at the destination, in all, it is found that it is only the defendant, who is liable to pay the compensation if there is any short landing of the same as contended by the plaintiffs.18. The defendant cannot be allowed to restrict its liability as claimed by them under Rule 22 of the Second Schedule of the Carriage By Air Act. As per Rule 25 of the Second Schedule of the abovesaid Act, the limits of liability specified in Rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment. Applying the abovesaid Rule to the case at hand, when it is admitted on the part of the defendant that the consignment was entrusted to it in good condition for safe delivery at the destination and when the defendant has also admitted the short landing of the consignment, though vide Ex.A7, M/s.Balmer Lawrie & Co Ltd., would claim the arrival of the consignment, however the fact remains that the consignment had not been delivered at the destination and short landing has been acknowledged by the defendant, in such view of the mater, as rightly contended by the plaintiffs’ counsel, when the consignment has been entrusted to the exclusive custody of the defendant and when the defendant has failed to disclose as to how the consignment had been dealt with during the transport, whether they had taken any precaution for the safe custody of the consignment during the transport as provided under Rules 18 (1) and (2) aforestated and when pointing to the same, there is no material worth acceptance on the part of the defendant, as rightly contended by the plaintiffs’ counsel, the presumption should be raised against the defendant that the short landing had occurred only on account of the gross wilful negligence and misconduct on the part of the defendant and hence, the position being above, the defendant cannot be allowed to restrict its liability as above pointed out under Rule 22 of the Second Schedule of the abovesaid Act, particularly, considering the scope of Rule 25 of the Second Schedule of the abovesaid Act.19. In this connection, the plaintiffs’ counsel would rely upon the decision of the Division Bench of our High Court reported in 2017 (4) TLNJ 180(Civil) (Singapore Airlines Cargo Pvt. Ltd., Westminster First Floor 108, Dr.Radhakrishnan Salai, Chennai - 600 004 Vs. M/s.HCL Info Systems Ltd., registered Office 806-808, Siddharth 96, Nehru Place New Delhi - 110 019 represented by Power Agent/Subrogee M/s.National Insurance Company Ltd., Divisional Office No.110, Jawaharlal Nehru Street, II Floor, Pondicherry 605 001 and two others) whereunder, the Court has held that when the short landing of the consignment had been established, the defence put forth by the Carrier that the consignment was not at all entrusted to them and that the same had been delivered particularly when Exs.A8 & A10 would clearly indicate that there was non delivery of consignment and considering the scope of Rule 23 (1) of the Second Schedule of Carriage By Air Act, 1972 which clearly stipulates that any provision tending to relieve the air carrier of liability or fix a lower liability than that which is laid down in these Rules shall be null and void, resultantly, further held that the claim of carrier for restricting the liability cannot be accepted by invoking Warsaw Convention 1929, and the position of law has been outlined by the Division Bench in the abovesaid decision and the same is extracted below."The Carriage by Air Act, 1972, Rule 23 (1) - Claimed that consignment was built up by the Counsel Agent at Singapore, therefore, the first defendant cannot be held liable or for the short shipment - contents of Ex.A11/letter by appellant to first plaintiff would only show that the cargo was not short shipped - defence raised by the first defendant/appellant that the lost cargo was not at all entrusted to them cannot be accepted - contents of Ex.A11 would only indicate that there was short landing of the cargo and not short shipment - Even though in Ex.A11, it was indicated that it was issued without prejudice, from the contents of Ex.A11, it could be safely inferred that there was short landing of the cargo and not short shipment - Further, Rule 23(1) of the Act clearly stipulates that any provision tending to relieve the air carrier of liability or fix a lower liability than that which is laid down in these rules shall be null and void - submission that a condition in the airway bill limits their liability to US D 20 per kilogram is null and void - appellant not filed the original airway bill containing the terms and conditions - hence not inclined to accept such submissions by appellant as regards the applicability of Warsaw Convention 1929 and Hague convention to this case - Appeal dismissed.""33.It is evident from the above provisions of the Act that the claim of the first defendant/appellant that their liability is limited to US Dollar 20 per kilogram is not sustainable when it is not disproved by the first defendant/appellant that because of their negligence or wilful misconduct, the loss or damage is caused to the consignment. In the absence of such proof to show that there was no misconduct on their part, the first defendant/appellant is not entitled to the protection given in Section 22 of the Act and consequently, they will fall within the scope and ambit of the provisions of Section 25 of the Act which deals with wilful misconduct. Though it is the submission of the counsel for the first defendant/appellant that it is for the plaintiffs to prove whether there is wilful negligence on the part of the first defendant/appellant, we find that the burden of proving absence of negligence and wilful misconduct is only on the part of the first defendant/appellant who has to prove the absence of misconduct by valid and satisfactory evidence, which the appellant has miserably failed to discharge in this case. Further, when once the carrier receives the cargo, it is their obligation to safely deliver the same and the burden is on the carrier to show that they followed proper procedure and inspite of their best efforts, they could not prevent loss or damage. Therefore, we are of the opinion that the burden of disproving the wilful misconduct is on the part of the first defendant/appellant which they miserably failed to discharge by letting in any oral or documentary evidence. In this context, it is useful to refer to the decision rendered by the Kerala High Court in the case of (M/S.Indian Airlines Vs.Kurian Abraham and others) reported in AIR 2010 KERALA 85 relied on by the learned counsel for the plaintiffs/respondents 1 and 2 wherein it was held that when once carrier receives cargo, the obligation is on their part to safely deliver the same. The burden is on the carrier to show that they had followed proper procedure and inspite of their best efforts, they could not prevent loss or damage. In the instant case, the first defendant/appellant failed to show that they have taken all precaution and adopted proper procedure to safely deliver the goods. In such view of a matter, we do not find any reason to interfere with the judgment and decree passed by the trial Court. Hence, the Appeal suit fails and it is liable to be dismissed.34.With regard to the submissions made by the counsel for the appellant that the liability of the appellant is only limited as per Warsaw Convention 1929, we are of the opinion that when Rule 22(5) of the Carriage by Goods Act clearly imposes the liability on the part of the carrier and it is the Law of the Land, it has to be adopted to decree the suit filed by the plaintiffs. Further, Rule 23 (1) of The Carriage by Air Act, 1972 clearly stipulates that any provision tending to relieve the air carrier of liability or fix a lower liability than that which is laid down in these Rules shall be null and void. Therefore, the submission of the counsel for the appellant that a condition in the airway bill limits their liability to US D 20 per kilogram is null and void. Moreover, the appellant has not filed the original airway bill containing the terms and conditions. In such circumstances, we are not inclined to accept such submission made by the learned counsel for the appellant as regards the applicability of Warsaw Convention 1929 and Hague convention to this case."20. Applying the principles of law outlined in the abovesaid decision to the case at hand, when as above pointed out, the defendant having received the cargo, it is their obligation to safely deliver the same and therefore, the burden is only upon the defendant to show that they had followed proper procedure and in spite of their best efforts, they could not prevent the loss or damage. In such view of the matter, the burden of disproving the wilful misconduct is only on the part of the

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defendant and when the defendant has miserably failed to discharge the same by adducing reliable and acceptable oral and documentary evidence, the defendant is not entitled to restrict its liability as well as disown its liability by claiming that the air cargo arrival notice had been issued by M/s.Balmer Lawrie & Co Ltd., and particularly when subsequent to the same, it has clearly admitted the non delivery of the consignment at the destination. In the light of the abovesaid reasons, the defendant cannot claim that it has been absolved of its liability under the Provisions of Carriage By Air Act, 1972, particularly, having admitted the short landing of the consignment and therefore, they are liable to compensate the plaintiffs. Equally the defendant cannot allow to restrict its liability by invoking Rule 22 (2) Second Schedule of the Carriage By Air Act, 1972, when the defendant has failed to establish that it had taken proper care and caution for the safe delivery of the consignment and also not placing any material to evidence that the consignment had been properly handled by them during the transport. Therefore, in the light of the Rule 22 (1) and 25 of the Second Schedule of the Carriage By Air Act, 1972, the defendant is liable to pay the entire value of the loss of cargo and thus, the plaintiffs are entitled to the suit amount as determined by the trial Court.21. The reasonings and conclusions of the first appellate Court for rejecting the plaintiffs’ suit are found to be totally unacceptable, particularly, the first appellate Court having admitted the short landing of the consignment on the part of the defendant and its liability to pay the compensation thereby and on the other hand, the first appellate Court is found to have been carried away by the plea of the defendant that M/s.Balmer Lawrie & Co Ltd., is a proper and necessary party. However, considering the abovesaid discussions, it is clearly seen that M/s.Balmer Lawrie & Co Ltd is neither a proper and nor a necessary party to the suit proceedings. In such view of the matter, the reasons assigned by the first appellate Court for the dismissal of the plaintiffs' suit could only be termed as perverse and illogical and consequently, liable to be set aside.22. For the aforestated reasons, the substantial questions of law formulated in the second appeal are, accordingly, answered in favour of the plaintiffs and against the defendant. In conclusion, the judgment and decree dated 20.09.2007 passed in A.S.No.730 of 2006 on the file of the 7th Additional Judge, City Civil Court, Chennai, are set aside and the judgment and decree dated 06.04.2006 passed in O.S.No.5778 of 2000 on the file of the 1st Assistant Judge, City Civil Court, Chennai, are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.
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