Western Carriers, Chennai vs KEC International Limited owning CETEX Petro Chemicals Represented by Power agent/Subrogee Oriental Insurance Company Limited Through D. O. No. V, Spencer Towers, Chennai and another [MADRAS HIGH COURT, 18 Sep 2014]
Carrier & Transportation - Practice & Procedure - Carriers Act, 1865, ss. 8, 9, 10 - Suit for recovery of money - Ownership of consignment - Legality - Respondent (plaintiff no. 1) dispatched a consignment to their consignee ('S' company) on consignment sale basis - Appellant (defendant) in acknowledgement of entrustment of consignment in good order, issued the consignment note, appellant who as a common carrier though duty-bound to deliver the goods in good condition, failed in discharging their duty, and consignment were found leaking - Consignment was insured with plaintiff no. 2 (Insurance) for transit risks - However
respondent executed a letter of subrogation and Spl. Power of attorney in favour of Insurance and based on that plaintiff no. 1 filed a suit for recovery of money - Trial Court decreed the suit, which was confirmed in appeal by impugned judgment by Lower Appellate Court - Hence, instant second appeal - Appellant contended that once goods were entrusted to the Carrier, the ownership of consignor ceases and consignee becomes the owner.
Carrier & Transportation - Practice & Procedure - Carriers Act, 1865, ss. 8, 9, 10 - Suit for recovery of money - Ownership of consignment - Legality - Respondent (plaintiff no. 1) dispatched a consignment to their consignee ('S' company) on consignment sale basis - Appellant (defendant) in acknowledgement of entrustment of consignment in good order, issued the consignment note, appellant who as a common carrier though duty-bound to deliver the goods in good condition, failed in discharging their duty, and consignment were found leaking - Consignment was insured with plaintiff no. 2 (Insurance) for transit risks - However
respondent executed a letter of subrogation and Spl. Power of attorney in favour of Insurance and based on that plaintiff no. 1 filed a suit for recovery of money - Trial Court decreed the suit, which was confirmed in appeal by impugned judgment by Lower Appellate Court - Hence, instant second appeal - Appellant contended that once goods were entrusted to the Carrier, the ownership of consignor ceases and consignee becomes the owner.
Held, if the goods were not delivered to the consignee, he would not have suffered any loss as the ownership would continue to be only with the consignor. Whereas if the goods are delivered either in a damaged condition or as in instant case, where the entire quantity has not reached the destination, it could easily be said that consignee alone could file the suit for the loss suffered. When the consignee is only an agent of the consignor where there was no sale of goods, the ownership continues to vest with the consignor only. Therefore, the suit laid as such, is maintainable. Though the consignee may have several interests in the goods to entitle him to sue compensation for loss in transit, as the ownership has not been relinquished by the consignor, the consignor is entitled to maintain the claim. No doubt, respondent/consignor could not answer why there was a penal clause in the invoice that in the event of payment not received within the credit period, interest would be charged. Excepting the averment in the plaint, there is also no evidence from the plaintiffs to hold that the consignee was his agent. From a casual reading of invoice (ExA.3), it is seen that it is only a consignment sales and hence, CST not applicable and invoice has been issued by company owned by respondent on behalf of the plaintiff no. 1. Therefore, it can be inferred that 'S' company, the consignee is none other than the agent of the consignor and CST was not applied so far. Therefore, it is evident that the title having not passed on to the consignee, only the consignor is entitled to maintain the claim. Title in respect of goods continue to be only with the plaintiff no. 1 as there was no sale between the consignor and the consignee. Appeal dismissed.
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