S. Tamilvanan, J. 1. This appeal has been preferred against the Judgment and Decree, dated 24.07.1995 made in O.S. No. 5076 of 1995 on the file of the II Asst. Judge, City Civil Court, Chennai.
2. The respondents herein were the plaintiffs in the suit, before the trial court. The suit pas filed by the plaintiffs against the appellant/defendant, carrier of the goods. The first respondent herein had sent consignment of goods, through the appellant carrier on 21.03.1989, for safe carrier and delivery to the consignee at Lucknow. The goods were entrusted to the appellant carrier at Chennai on 21.03.1989. The delivery challan letter, dated 21.03.1989 was marked as Ex. A.2 and a copy of the invoice has been marked as Ex. A.1. It is not in dispute that the goods were damaged during transit, due to which, the first respondent sent a letter, dated 18.05.1989 to the appellant, subsequently, survey was conducted to assess the actual damage caused to the consignment of goods. Survey Report prepared by the Surveyor, dated 05.07.1989 has been marked as Ex. A.5. Subsequently, the first respondent sent letters to the appellant, dated 19.07.1989 and 25.08.1989 respectively, the copy of the same have been marked as Exs. A.6 and A.7.
3. As per the Surveyor Report, value of the goods sent as per the consignment was at Rs. 9,58,148.80/-. Though the consignment was sent at owner's risk, as per law, the initial burden is on the carrier, namely, the appellant herein that there was no negligence on the part of the carrier in transporting the goods to the destination. As per Ex. A.5, Surveyor Report, the nature of loss/damage is stated that Vacuum Circuit Breakers Sr.Nos.2945 and 2947 found damaged as per the details given in the enclosed schedule. As per the Surveyor's Report, the damage had occurred due to transit jerks and jolts and the loss is estimated at Rs. 1,27,800.77/- and salvage is estimated at Rs. 1,000/- and the net loss was estimated at Rs. 1,26,801.00/-.
4. The appellant had issued a certificate, dated 03.08.1989 for the loss/damage, wherein the consignment of goods and the damage sustained due to jerks and jolts during transit have been admitted, however, it has been stated that due to hazardous condition of the roads, the damage had occurred. Ex. A.9 is the letter of subrogation given by the first respondent in favour of the second respondent. It is not in dispute that the first respondent had received damages from the second respondent, Insurance Company and accordingly, right of subrogation is given in favour of the second respondent by the first respondent.
5. The trial court, considering the oral and documentary evidence and also the arguments advanced by both sides, held that the first respondent had incurred loss, by way of damage to the consignment, due to the negligence of the appellant carrier. Accordingly, decided that the first respondent is entitled to claim Rs. 82,377/- as compensation. There is no cross appeal by the respondents. Further, the first respondent had reimbursed a sum of Rs. 1,29,800/- from the second respondent, however, the claim was restricted to Rs. 99,528.09/-. Based on the evidence available on record, the trial court has held that the second respondent is entitled to recover from the appellant, a sum of Rs. 82,377/- with 12% interest per annum, till the realisation of the amount.
6. Mr. Murthi, learned Counsel appearing for the appellant would contend that the loss has incurred only due to the poor condition of the road, in support of his contention, he referred, Ex. A.8, Damage Certificate given by the appellant and the Surveyor Report, wherein it has been stated that the damage had been occurred due to jerks and jolts, while transporting the goods.
7. Per contra, Mr. Nageswaran, learned Counsel appearing for the respondents would contend that as per the Carrier Act, 1865, the primary liability is on the carrier to establish that there was no negligence on the part of the appellant, being; the carrier of the goods.
8. On the side of the appellant, there is no oral or documentary evidence to establish their defence, so as to establish that there was no negligence on their part. It is seen that the trial court has held that the appellant is responsible for the loss sustained, only based on the evidence. Therefore, I could find no error or infirmity in the finding of the trial court. However, the learned Counsel appearing for the appellant would contend that the rate of interest fixed at 12% per annum is exorbitant.
9. Considering the facts and circumstances, I find it just and reasonable to fix the rate of interest at 6% per annum, accordingly, the appellant is directed to pay Rs. 82,377/- as damages with 6% interest from the date of the plaint till the date of realisation with proportionate costs.
In the result, the appeal is disposed of with the above terms.