(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 30.10.2007 passed in A.S.No.24 of 2007 on the file of the IV Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 10.07.2006 passed in O.S.No.2975 of 2003 on the file of the V Assistant Judge, City Civil Court, Chennai.)1. Challenge in this second appeal is made to the Judgment and Decree dated 30.10.2007 passed in A.S.No.24 of 2007 on the file of the IV Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 10.07.2006 passed in O.S.No.2975 of 2003 on the file of the V 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.2975 of 2003 is the appellant in the second appeal.4. Suit for recovery of money.5. Briefly stated, the case of the plaintiffs is that the first plaintiff despatched various consignments of engine valves, guides and tappers to their consignee at Calicut Cochin, Mysore, Belgaum and Shimoga based on the purchased orders placed by the consignees and the abovesaid consignments were properly packed in good order and condition and entrusted with the defendant's carrier for safe carriage and delivery to the intended consignees. The defendant, accordingly, had acknowledged the entrustment of the goods consigned and undertaken to deliver the same to the intended consignees at various places. The first plaintiff had insured the consignment goods with the second plaintiff under the open policy and according to the plaintiffs, the defendant's carrier failed to deliver the consignments in full and there is a shortage of 14 cases during the transit of the consignments and the defendant vide their letter dated 26.05.2000 admitted the short delivery and accordingly, the first plaintiff sent a notice calling upon the defendant to meet the loss sustained by the plaintiff amounting to Rs.66,703/- and inasmuch as due to lack of care and negligence on the part of the defendant's carrier in transporting the consignments, the shortage had occurred as abovestated and when the defendant's carrier had failed to discharge the duties as prescribed under the Carriers Act, according to the first plaintiff, based upon the policy taken with the second plaintiff, the second plaintiff settled the claim for a sum of Rs.76,793/- by way of the letter of subrogation and special power of attorney in favour of the second plaintiff on 21.11.2000 and accordingly, the plaintiffs are entitled to the suit amount being the invoice of value of the consignments short delivered and hence, they had come forward with the suit.6. The defendant resisted the plaintiffs' suit contending that the claim of the plaintiffs that the second plaintiff had got subrogated to the rights of the first plaintiff based upon the policy is not legally sustainable and the defendant's carrier is not aware of the actual contents of the consignments and the defendant had never undertaken to carry and deliver the consignments to the intended consignees in the same good order or condition and the defendant is not a party to the contract entered into between the plaintiffs and the delivery of goods was intimated by the defendant by letter dated 26.05.2000 only to enable the first plaintiff to claim the loss from the second plaintiff and according to the defendant, the short delivery of goods was due to an unexpected theft en route and in connection with the same, the police complaint had been lodged by the defendant and the same was recorded by the police as not traceable. The alleged loss said to have been sustained by the plaintiff was not due to lack of care and negligence on the part of the defendant and therefore, the defendant cannot be made responsible for the loss, which had occurred due to the theft en route and hence, sought for the dismissal of the plaintiffs' suit.7. In support of the plaintiffs' case, PW1 was examined and Exs.A1 to A9 were marked. On the side of the defendant, DW1 was examined and Exs.B1 to B3 were marked.8. On a consideration of the oral and documentary evidence adduced in the matter and the submissions put forth by the respective parties, the Courts below were pleased to decree the suit in favour of the plaintiff as prayed for. Impugning the judgment and decree, the defendant has 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. The Appellate Court ought to have seen that the requirements of the Section 8 of Carriers Act has been proved before the Hon'ble Court through the oral and documentary evidence placed by the appellant/defendant before the Hon'ble Court. The findings of the Appellate Court, that the appellant/defendant withheld the best evidence to prove the Carrier had acted prudently is not correct. The Appellate Court ought to have seen that it is not the case of the respondents/plaintiffs, that robbery was committed due to the negligence of the driver or the cleaner. Moreover, the police investigation under the provisions of the Criminal Procedure Code, do not give any contra opinion about the theft or the complaint lodged by the appellant/defendant. It is not the case of the police that the case registered under Ex.B2 was a mistake of fact. On the other hand, the police had concluded that the accused was not traceable.b. The appellate Court and the trial Court ought to have seen that Section 79 Marine Insurance Act is not applicable to this case and Ex.P8 is not valid in the eyes of law."10. From the materials placed on record and the pleas put forth by the respective parties and considering the judgment and decree of the Courts below, it is evident that the first plaintiff had despatched the various consignment goods for delivering the same to the consignees through the defendant. The same could be gathered from Exs.A3 & A4 documents. Further, it is noted that the consignment goods sent by the first plaintiff had not been delivered and the short delivery of the goods had occurred and the same could also be gathered from the letter addressed by the defendant to the first plaintiff dated 26.05.2000 marked as Ex.A5. It is thus seen that by way of Ex.A5 letter, the defendant itself has admitted that a part of the consignments worth Rs.76,793/- could not be delivered and according to the defendant, as the same had been lost during the transit on account of the theft of the same by somebody, according to the defendant, it is not responsible for the loss sustained thereby to the first plaintiff. Per contra, according to the first plaintiff, inasmuch as the defendant, as the carrier had failed to take care and caution of the goods entrusted to it and safely deliver the same to the consignees, the defendant cannot escape from its liability of the short delivery on the footing that the short delivery had occurred due to the commission of theft en route and therefore, according to the first plaintiff, following the policy taken by the first plaintiff with the second plaintiff, the second plaintiff having compensated the loss sustained by the first plaintiff, it is stated that the second plaintiff got subrogated to the rights of the first plaintiff and thereby, according to them, the plaintiffs are entitled to maintain the suit against the defendant.11. Considering the abovesaid factors in toto, when the defendant has admitted that there is a shortage of delivery of the consignments vide Ex.A5 letter and when the defendant has not disputed that the consignment goods had been entrusted to it by the first plaintiff for delivering the same to the intended consignees, it is for the defendant to establish that it had taken all the care and caution of the consignment goods after the entrustment of the same to it and there is no negligence on its part in any manner in delivering the consignments to the consignees. However, when admittedly, the short delivery of the consignment goods had been reported, it is evident prima facie that the defendant had failed to take the necessary care and caution to safeguard the consignment goods entrusted to it by the first plaintiff.12. The only defence taken by the defendant for avoiding the responsibility to make good the loss sustained by the plaintiff is that the consignment goods had been stolen en route by somebody and as the defendant had also lodged a complaint with reference to the same to the police and as the police has filed the final report as not traceable, according to the defendant, by way of the same, the Court should have held that the defendant had taken the best care and protection of the consignment goods entrusted to it and determined that the defendant is not liable to pay any amount to the plaintiffs. However the abovesaid contention put forth by the defendant is totally unacceptable.13. As rightly concluded by the Courts below, when according to the defendant, the goods had been stolen during the transit by somebody, the defendant cannot escape its liability by merely contending that as it had lodged the complaint to the police, its responsibility is over. As held by the Courts below, when the consignment goods are entrusted to the defendant and when the goods are said to be stolen during the transit and when it is seen that at the time of the alleged theft, the driver and the cleaner of the lorry were present, therefore, as held by the Courts below, the defendant should have endeavoured to examine the driver and the cleaner of the lorry to explain as to under what circumstances the theft had been committed, when and how it was noticed or detected by them and what are the steps taken by them with reference to the same and when the defendant had not endeavoured to examine the driver and cleaner, as held by the Courts below, the defendant is suppressing the best evidence and if the defendant had examined the driver and the cleaner of the lorry, the plaintiff would have had an opportunity to cross examine them and expose that it is only due to the improper care and caution on the part of the defendant and only due to the negligence on the part of the defendant, the entire goods had not been delivered and the short delivery had occurred.14. However, with reference to the same, the defendant's counsel would contend that as the defendant had lodged the complaint qua the theft of the consignment goods and the police also, after investigation, had reported that the subject matter is untraceable, according to him, the defendant cannot be expected to act any further and therefore, on that footing urged the Court to hold that the defendant had taken the best efforts to deliver the goods as per law and therefore, no negligence should be attributed to the defendant. Ex.B2 is the copy of the complaint said to have been lodged by the defendant to the police regarding the theft of the consignment goods. The Courts below have discussed Ex.B2 in detail and it could be seen that the alleged theft occurred in between Poonamallee and Perumpulipakkam and it is also noted that there is no evidence on the part of the defendant whether the driver and the cleaner had chosen to verify the lock of the lorry as and when the same had been halted at various places for one purpose or the other. Be that as it may, now according to the defendant's counsel, the police had referred the case under Ex.B3 as not traceable. On a perusal of Ex.B3, it is found that the police had reported to the Magistrate concerned that the case of theft in Crime No.219 of 2000 registered under Section 379 IPC is undetectable and the abovesaid report of the police had been recorded by the Magistrate concerned.15. On that basis, it is contended by the defendant's counsel that inasmuch as the police concerned had not reported to the Magistrate that no theft had taken place and on the other hand, they had only reported that the stolen goods are undetectable, according to him, nothing more could be done by the defendant with reference to the same and on that premise, the Court should hold that every precaution had been taken by the defendant to safeguard the goods and despite the same, the unexpected theft had been committed by somebody and the same was unable to be detected by the police. In my considered opinion, the report given by the police under Ex.B3 as undetectable would not culminate the investigation as per law. In various cases, we come across and it is noted that the investigating officer, despite the efforts taken, is unable to detect the crime and thereby, he would submit a report to the Magistrate stating that the crime is undetectable. Whether the abovesaid report could be held to be the final report, the answer is No. With reference to the same, the Full Bench of our High Court in the decision reported in 2017 (1) MWN (Cr.)471 (FB) (Chinnathambi @ Subramani (A1) vs. State, rep.by the Inspector of Police, Vellakovil Police Station, Tirupur District (Crime No.555 of 2005) has held that the police report, which could be filed under Section 173 (2) Cr.P.C, is only after the completion of the investigation and further, held that the report filed by the police qua the crime as undetectable cannot be construed as completion of investigation and such a report does not terminate the investigation and it has to be held that the investigation is to be still in progress and such a report being only the interim report would not fall within the scope of Section 173(2) and the order of the Magistrate recording the same or receiving the same is not a Judicial order and the abovesaid position of law has been duly outlined by the full bench in the abovesaid decision as follows:"CRIMINAL PROCEDURE CODE, 1973 (2 OF 1974), Section 173(2) - Police Report - Crime "Undetectable" - Investigation cannot be construed as completed - Police Report which could be filed under Section 173(2), only after completion of investigation - "Crime undetectable" does not terminate investigation - Investigation to be construed as in progress - Such Report being Interim Report would not fall within scope of Section 173(2) - Receiving and recording of such Report by Magistrate not a Judicial Order - No element of adjudication involved - View taken by Division Bench in K.K.S.S.Ramachandran that Order recording Police Report that crime not detectable is a Judicial Order, held, not correct position of law"32. Thirdly, if the Investigating Officer, despite the earnest efforts taken, is unable to detect the crime, he will submit a report to the Magistrate stating that the crime is "undetectable". In such a case, it cannot be construed that the investigation has been completed. If once the investigation is completed, then only a report could be filed under Section 173(2) Cr.P.C. A report of this kind where the Police Officer states that the crime is undetectable, does not terminate the investigation and thus, the investigation is construed to be in progress. It is like an interim report not falling within the scope of Section 173(2) Cr.P.C. On receipt of such a report, the learned Magistrate does not pass a judicial order but, instead, he simply receives and records the same. There is absolutely no element of any adjudication. This order of the learned Magistrate is undoubtedly not a judicial order.33. . . . . .34. The Division Bench in K.K.S.S.Ramachandran's case in para 11 of the judgement has taken the view that an order of the learned Magistrate recording the report that the crime could not be detected is a judicial order. In our considered view, it is not the correct position of law. As we have held, it is not at all a judicial order as there is no element of adjudication. We concur with the conclusion of the Division Bench that an order accepting the report of the Police either a charge sheet or a negative report, under Section 173(2) Cr.P.C., is a judicial order. But, the further finding of the Division bench that since, it is a judicial order, for doing further investigation, the Police Officer has to challenge the said order before a higher court and he cannot seek permission under Section 173(8) Cr.P.C., from the same Magistrate is again not a correct position of law. As we have already held, the power under Section 173(8) Cr.P.C., is an independent power and the exercise of the same would not amount to either reviewing, modifying, varying or canceling the earlier order passed by the same Magistrate on accepting the report under Section 173(2) Cr.P.C."16. In the light of the abovesaid position of law, as regards the report filed by the police qua the crime as undetectable, the contention put forth by the defendant's counsel that as the police has concluded the investigation as undetectable, nothing further could be attributed on the part of the defendant in not accounting for the shortage of the goods as the goods had been stolen during the transit. When as above pointed out, the undetectable report lodged by the police would not terminate the investigation and despite the same, the investigation is still to be held as pending, in such view of the matter, to establish as to what steps had been taken by the police to detect the crime of theft alleged by the defendant under Ex.B2 and when the defendant had not endeavoured to examine the concerned police officer as to whether he had directed the investigation in the proper manner so as to nab the accused and culminate the investigation by filing the proper final report and as above pointed out, the defendant having also not examined the driver and the cleaner of the lorry, who were in the scene at the time of the alleged commission of theft of the consignment goods and when the defendant has also not established that the driver and the cleaner of the lorry had ensured that the lorry had been properly locked at all the places where the lorry had been halted for one reason or the other as mentioned in the complaint Ex.B2, all put together, as held by the Courts below, based on Ex.B2 FIR and Ex.B3 police report, it cannot be construed or held that the defendant had discharged its duty of taking all the precautions in safeguarding the goods during the transit and in such view of the matter, the resultant conclusion that could be arrived at is that the defendant has failed to take necessary care and caution to safeguard the consignment goods and left it to be stolen during the transit on account of its neglig
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ence one way or the other and when the investigation is still in progress, the defendant having not endeavoured to put forth necessary materials as to what happened further in the investigation, in all, it is seen that as held by the Courts below, only the defendant could be mulcted with the liability for the short delivery of the goods and accordingly, the defendant having failed to take necessary care and caution in transporting the goods, accordingly, become liable for the loss sustained by the plaintiffs and resultantly, the Courts below are found to be justified in holding that the defendant is liable to pay the suit amount to the plaintiffs as prayed for. The Courts below having not taken into consideration the provisions of Section 79 of Marine Insurance Act wholly for determining that the defendant is liable to pay the loss sustained by the plaintiffs due to the short delivery of the consignment goods. On the other hand, it is found that the Courts below had held that the defendant has failed to establish that it had taken adequate care and caution and safeguards to protect the consignment goods and deliver the same to the consignees and the abovesaid determination of the Courts below being based on the proper appreciation of the materials available on record and the principles of law governing the same and when they are not shown to be in any manner perverse, illogical and irrational, I do not find any valid reason to interfere with the same. The substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiffs and against the defendant.17. In conclusion, the Judgment and Decree dated 30.10.2007 passed in A.S.No.24 of 2007 on the file of the IV Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 10.07.2006 passed in O.S.No.2975 of 2003 on the file of the V Assistant Judge, City Civil Court, Chennai are confirmed and resultantly, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.