The next question to be considered is whether the defendant is liable to pay the compensation. There is ample evidence to show the loss and damage caused to the goods entrusted with the defendant by the 2nd plaintiff. Admittedly the entire goods are not transported to Patna City. Since the 2nd plaintiff has proved that there was short delivery, the burden is on the defendant to prove that the accident occurred not due to the negligence of the driver but beyond the Carriers control. Under Section 8 of the Carriers Act, the liability of a common carrier is absolute except for Act of God. The defendant has not gone to the box to swear his contention. There is absolutely no evidence to show that the accident occurred due to the Act of God. The further contention of the defendant that the goods were carried at owner's risk also cannot be accepted as held in Indian Roadways Corporation v. Unneerikutty (1990) 1 KLT 292 and also in Orient Roadlines v. M.B. Hassan Sahib Co. MANU/KE/0308/1988 : 1989 ACJ 778 the printing of this condition on the reverse of the consignment note is not sufficient to constitute a special contract signed by the owner or an agent duly authorised within the meaning of Section 6 of the Carriers Act to protect the carrier from liability. A common carrier is not a mere bailee of goods entrusted to him. He is answerable for the loss of goods even when loss is not caused by negligence or want of care on his part. The only exceptions recognised by law are the acts of God and of State's enemies or a special contract that the carrier may choose to enter into with the customer. None of the above circumstances were proved in this case. Therefore, the said contention of the learned Counsel cannot be accepted.
IN THE HIGH COURT OF KERALA
A.S. No. 248 of 1993(C)
1. The appellant is the defendant in O.S. No. 92 of 1997 on the file of the Sub Court, Alappuzha. The suit is filed for realisation of damages. The case of the plaintiffs is that the 2nd plaintiff, a registered partnership firm is doing business as Merchants and Commission Agents entrusted a consignment of 550 tins of coconut oil to the defendant which is a common carrier from Alappuzha to Patna City for delivering to the 2nd plaintiff's own branch. The lorry met with an accident clue to the negligence and rash driving and there was damage to the tins and loss of 43 quintals 53 kilograms and 700 grams of coconut oil. At the request of the 2nd plaintiff, an open delivery was given at the Calcutta office of the defendant on 27-4-1974. Short delivery letter was also issued by the defendant. There was a shortage of 4353.75 Kgs. of coconut oil. The defendant did not arrange a watchman at the accident spot to take care of the goods. As a result, there was pilfering also. The defendant is liable for the shortage and the loss of coconut oil. The shortage was assessed by a surveyor at the instance of the first plaintiff. Survey report was submitted on 29-5-1974. The 2nd plaintiff preferred a claim on 8-7-1974 with the defendant for a sum of Rs. 67,184.42 towards damages. The defendant repudiated the claim. The consignment was insured with the first plaintiff and on the strength of insurance, the Insurance Company paid a sum of Rs. 61,389.01 to the 2nd plaintiff. Thus the first plaintiff is subrogated to the rights of 2nd plaintiff in respect, of the goods. The plaintiffs through their recovery agents at Bombay had demanded the amount from the defendant. But it was not paid by virtue of the subrogation. First plaintiff is entitled to sue the defendant and get reimbursement of the amount paid by it to the second plaintiff. Hence, the suit.
Print Page
IN THE HIGH COURT OF KERALA
Decided On: 18.11.2003
Appellants: South Eastern Carriers (P) Ltd.
Vs.
Respondent: The Oriental Fire and General Insurance Co. Ltd. and Anr.
Vs.
Respondent: The Oriental Fire and General Insurance Co. Ltd. and Anr.
Hon'ble Judges/Coram:
A. Lekshmikutty , J.
Citation;2004 Kerala 139,
2. The defendant filed written statement contending that the signatory to the plaint is incompetent to sign the plaint and file the suit. It is also denied that the 2nd defendant is a registered partnership firm. The defendant is a private limited company. The firm South Eastern Carriers was converted into a private limited company and assets and liabilities of the firm were taken over by the latter. The defendant had neither received a consignment note nor any consignment from the 2nd plaintiff. The lower Court has no jurisdiction to try the suit. There is no cause of action against the defendant. The defendant was made a Public Limited Company with effect from 15-6-1988. Hence the suit is not maintainable. The defendant had not issued a lorry receipt and had not verified weight, nature, condition and price of the goods. The goods were carried at "owner's risk" and hence the defendant cannot be held liable for damage or loss to the goods. The 2nd plaintiff had chartered a truck for the carriage of the goods and hence the defendant cannot be mulcted with liability of a common carrier. There was no negligence or carelessness on the part of the lorry driver. It was only due to unforeseen and inevitable reasons that the accident had occurred. The letter of shortage is not binding on the defendant as the person who issued the same was not authorised to issue the same. The quantum of shortage is not admitted by the defendant. It is not correct to say that the goods were not taken proper care at the place of accident. There was neither pilfering nor damage or loss of the goods. The survey report is not binding on the defendant. The letter of subrogation is not valid or binding on the defendant. The defendant is not aware of the payment made by the first plaintiff to the 2nd plaintiff. The quantum of damages has to be proved by the plaintiffs. The defendant is not liable to pay interest of damages. The suit is liable to be dismissed.
3. On the basis of the pleadings, the Court below framed 15 issues, On the side of the plaintiffs, PW-1 was examined and Exts. A1 to A22 were marked. On the side of the defendant, Ext. B1 was marked. No oral evidence was adduced. The Court below after trial decreed the suit allowing the plaintiffs to recover an amount of Rs. 53,528.13 with future interest at 6% per annum, against which this appeal is filed by the defendant.
4. The contention of the defendant is that the defendant was a private limited company which was converted into a public limited company with effect from 15-6-1988 and hence the suit filed against a private limited company is not maintainable. It is in evidence that the defendant Private Limited Company had taken over all the assets and liabilities of the erstwhile firm South Eastern Carriers and hence the contention that a suit against the defendant is not maintainable cannot be accepted.
5. The case of the plaintiffs is that the 2nd plaintiff entrusted a consignment of 550 tins of coconut oil to the defendant to transport it from Alappuzha to Patna City. It is contended by the defendant that the defendant is not a common carrier. As per Section 2 of the Carriers Act, 1865, "common carrier" denotes a person, other than the Government engaged in the business of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately. "Person" includes any association or body of persons, whether incorporated or not. If it be so it is to be found that the defendant is a common carrier, The plaintiff entrusted 550 tins of coconut oil for transport from Alappuzha to Patna City. On the way the lorry met with an accident and the goods were damaged and loss caused. Ext. A4 is a short delivery letter and Ext. A7 is the open delivery statement sent along with Ext. A4. Even though the defend ant denies that the person who issued Exts, A4 and A7 is not competent to send the letter, the evidence shows that it was sent by an authorised officer of the defendant, Ext. A7 is the Open Delivery Statement sent along with Ext. A4 letter. The defendant by these documents admits the loss of goods due to the accident and also the quantity that is lost. The entrustment of goods is admitted by the defendant. Ext. A5 is a letter sent by the defendant to the 2nd plaintiff in reply to the letter of the 2nd plaintiff informing about the accident and the consequent damage to the goods. Ext. A5 letter is admitted by the defendant. Ext. A6 is the survey report submitted by the Surveyor. As per the defendant, the survey report was prepared without notice and hence it cannot be accepted in evidence. But a perusal of Ext. A6 would show that the representatives of the defendant was present at the time of preparing the report. Ext. All is a reply sent by the defendant to the claim notice. In Ext. A11 also, there is no denial of the receipt of the consignment. In Ext.-A15, the defendant admits the receipt of the goods. So the contention of the defendant that no consignment note was given also cannot be accepted. Ext. A3 is the letter sent by the 2nd plaintiff to the defendant on 22-4-1974. Ext, A4 letter would show that it was written in the letterhead of the South Eastern Carriers to the 2nd plaintiff. In the said letter, it is stated that the above consignment met with an accident near Cuttack. The goods have been insured by them with the Oriental Fire & General Insurance Company Ltd. vide their Policy No. 13501/2/9/M582 of 17-4-74. It is further stated that they have delivered the goods at Cuttack and due to the accident consignment No. 98421X 550 tins coconut oil dated 17-4-74 Alleppey to Patria City is fully damaged. They delivered 43 quintals 51 Kgs. 300 grams in (282) tins. Total shortage in this consignment was 43 quintals 53 Kgs. 700 grams. The evidence adduced would show that the goods were entrusted with the defendant with consignment note and there was short delivery because of the accident. Ext. A7 shows the quantity of the goods entrusted to the plaintiff in respect of short delivery etc. So the contention that the defendant was not aware of the quantity and no consignment note was given cannot be accepted.
6. It has come out in evidence that the lorry carrying the coconut oil was met with an accident in Cuttack and 43.537 quintals of oil was lost. Ext. A4 is the open delivery letter issued by the defendant admitting the damage and loss of goods. Ext. A7 is the statement issued along with Ext. A4 showing the quantity of the oil lost and the oil salvaged. Exts. A4 and A7 are signed by the defendant's authorised officer on its letterhead. Apart from the bald allegation in the written statement, there is nothing to show that the officer, who sent Exts. A4 to A7 is not competent to send the same. In Ext. A10 the quantum of loss is admitted by the defendant. There is ample evidence to show the entrustment of 550 quintals of coconut oil and the short delivery of 43.53.700 quintals. Even if no notice was sent to the defendant in respect of the survey, the admission of the defendant itself would show that the survey report is true and correct. In Exts. A5, A10 and A11 there is not even a whisper regarding the authority of the officer, who sent A4 and A7. So the contention that Ext. A6 survey report cannot be accepted is only to be ignored.
7. The next question to be considered is whether the defendant is liable to pay the compensation. There is ample evidence to show the loss and damage caused to the goods entrusted with the defendant by the 2nd plaintiff. Admittedly the entire goods are not transported to Patna City. Since the 2nd plaintiff has proved that there was short delivery, the burden is on the defendant to prove that the accident occurred not due to the negligence of the driver but beyond the Carriers control. Under Section 8 of the Carriers Act, the liability of a common carrier is absolute except for Act of God. The defendant has not gone to the box to swear his contention. There is absolutely no evidence to show that the accident occurred due to the Act of God. The further contention of the defendant that the goods were carried at owner's risk also cannot be accepted as held in Indian Roadways Corporation v. Unneerikutty (1990) 1 KLT 292 and also in Orient Roadlines v. M.B. Hassan Sahib Co. MANU/KE/0308/1988 : 1989 ACJ 778 the printing of this condition on the reverse of the consignment note is not sufficient to constitute a special contract signed by the owner or an agent duly authorised within the meaning of Section 6 of the Carriers Act to protect the carrier from liability. A common carrier is not a mere bailee of goods entrusted to him. He is answerable for the loss of goods even when loss is not caused by negligence or want of care on his part. The only exceptions recognised by law are the acts of God and of State's enemies or a special contract that the carrier may choose to enter into with the customer. None of the above circumstances were proved in this case. Therefore, the said contention of the learned Counsel cannot be accepted.
8. It is submitted by learned Counsel that the suit under the Carriers Act will not lie, at the most the plaintiffs can sue for breach of contract. This argument also cannot be accepted in the light of the decision reported in Nath Bros Exim International Ltd. v. Best Roadways Ltd., MANU/SC/0200/2000 : (2000) 4 SCC 553 : (2000 AIR SCW 2116). The liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely undamaged and without loss at the destination indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants.
9. On going through the entire evidence on record, it is seen that the defendant, has admitted the short delivery of the goods entrusted with them due to the accident. With regard to the value of the goods, no serious contention has been raised by the defendants. Apart from the survey report, there are other documentary evidence to prove the quantity entrusted, the quantity lost and the delivery made. So the decision in Associated Transport Corporation (P) Ltd. v. National Insurance Co. Ltd. (1989) 1 KLT 386 will not help the defendant's case. As stated earlier, the survey report shows that the representatives of the defendant was present at the time of preparing the report. On a careful consideration of the entire evidence, I find that the Court below has rightly appreciated the evidence and decreed the suit. Hence the judgment and decree passed by the Court below are confirmed and this Appeal is dismissed. The parties are directed to bear their respective costs.
No comments:
Post a Comment