The appeal has been filed by the defendant as against the decree and judgment dated 28.03.2000 made in O.S.No.292 of 1996 on the file of Sub Court, Hosur.
2. The first plaintiff is running a factory manufacturing Mettalised Polyester Films at Sipcot Industrial Complex, Hosur. The second plaintiff is a company incorporated under the Companies Act, carrying on business of General Insurance which is subsidiary to General Insurance Corporation of India.
3. The defendant is a Parcel Service transport operator. On 09.07.1992, the 1st plaintiff despatched a consignment of 96 rolls of mettallised Polyester film property packed through the defendant at Hosur for safe transportation to New Delhi to be delivered to their consignee M/s.Kuwar Fibres Pvt. Ltd., No.174, Katra Baryan Feteh-puri, Delhi. The said consignment was carried by the defendant from Hosur to Delhi. During the said transport out of the said 96 rolls of Mettallised Polyester Film, 29 Nos. of rolls of the said film were badly damaged due to rain water and the same was delivered to M/s.Kuwar Fibres Pvt. Ltd., Delhi on 14.07.1992. The said damage to the consignment was due to the carelessness by the defendant carrier, as the defendant is bound to carry the consignment entrusted to them and deliver it safely. The defendant had issued consignment note under G.C.Note No.2201 dated 09.07.92 acknowledging such entrustment of metallised Polyster Film in good order and condition and undertaking to carry and deliver the same to the 1st Plaintiff consignee at Delhi. But Contrary to the undertaking, the defendant carrier did not deliver the said consignment entrusted to it, to the 1st Plaintiff's consignee in order. The 1st Plaintiff was in no way responsible for the said damage to the consigned goods. Hence, the defendant is bound to deliver the goods consigned to it in good condition and if it is not able to do so, it is bound to make good the loss to the 1st plaintiff.
4. Upon receipt of the information of the said damage and loss of the said consignment from the 1st Plaintiff, the 2nd Plaintiff, who is the insurer of the said goods, had appointed an independent surveyor D.P.S.Malik & Co., 587, Sector-4, Timarpur, Delhi-54 to inspect and assess the loss pertaining to the damaged goods. The said surveyor inspected the goods on 22.07.92 and 23.07.92 at Kuwar Fibres Ltd., and the said surveyor, after careful survey and assessment, submitted a survey report dated 22.08.92. As per the survey report, the net loss is Rs.3,04,203.12/- plus Survey Fee Rs.3,612/-, Total Rs.3,07,815.12/-. Then the 1st plaintiff on 26.08.92 through its letter dated 18.09.92, sent by R.P.A.D. addressed to the defendant demanded Rs.3,04,203.12/- to pay towards the said loss. The defendant received the same on 23.09.92. On its receipt, the defendant replied through its letter dated 23.09.92 stating that the goods were consigned and were carried at the owners risk i.e. at the risk of the 1st plaintiff and since the loss of the goods were occasioned while the goods were in the 1st plaintiff custody and during transit, the loss of the goods were not due to the negligence of the defendant and hence the defendant is not bound to pay the sum of Rs.3,04,203.12/- being the value of the loss of the said goods damaged plus Rs.3,612/- total Rs.3,07.815.12/- round of Rs.3,07,815/-.
5. In consequence of the said contract of insurance, the 1st plaintiff submitted claim bill to the 2nd plaintiff, for the above said damage to their goods. The 2nd plaintiff had settled the claim of the 1st plaintiff by paying a sum of Rs.3,07,815/- on 27.11.92. Thereafter, the 2nd plaintiff was subrogated with the rights of recovery of the 1st plaintiff as per letter of subrogation and special power of Attorney dated 27.11.92 executed by the 1st plaintiff in favour of 2nd plaintiff. Since the 1st plaintiff is the person and delivery should have been effected at Delhi as per the undertaking given by the carrier-defendant, which was not effected by the defendant, the 1st Plaintiff as the consignor is also joining the 2nd plaintiff in filing this suit though the rights of the 1st plaintiff have already been subrogated as stated above. The 1st plaintiff has been made a party in this suit in order to avoid technical difficulties to be raised by the defendant. The 1st plaintiff has no objection to a decree passed against the defendant either in favour of the 2nd plaintiff or in favour of both the plaintiffs.
6. After the 1st plaintiff had executed the above said letter of subrogation and special power of Attorney in favour of the 2nd plaintiff, the 2nd plaintiff had entrusted the matter to M/s. Standard Surveillance Corporation, Claims Recovery Agent, Madras, for recovering the above said amount of Rs.3,07,815/- by its letter of authority dated 02.12.1995. The said recovery agent approached the defendant for recovering the above said amount from the defendant. But since the defendant had repudiated and declined to admit the liability on the untenable grounds, the plaintiffs were constrained to file this suit for recovery of the sum of Rs.3,07,815/- with interest thereon at 12% p.a. from 09.07.92 when the consigned goods were carried by the defendant. The defendant-carrier is under a statutory obligation to make good the loss sustained by the plaintiffs for the loss of consignment entrusted to them. The liability of the defendant is absolute and unconditional as per the provisions of Carrier Act. Hence, the plaintiffs have filed the suit.
7. The defendant has filed written statement contending that the goods of the 1st plaintiff were loaded in their lorry and transported to Delhi and there was no other goods in the lorry. The goods were loaded by the workers of the 1st plaintiff company under the supervision of the 1st Plaintiff Officers. There were two tarpaulins covering the goods as insisted by the 1st plaintiff at the time of engaging the lorry for transport of goods. This was the procedure even on previous occasions. The goods were fully covered when 1st plaintiff got the same loaded in the lorry. The goods were safely delivered at the destination. There was no rain on the way during the journey time. The goods delivered were accepted at the destination without any protest. If the tarpaulins were wet inside, the consignee would have insisted for open delivery. There was no certificate of damage recorded then and there. A certificate of delivery was given to the transporter and on production of the same the transporting charges was collected by the Defendant. There was no scope for any damage when the goods were actually delivered at the place of the consignee. There was no delay in delivery. There was no abnormality in transport time. Due care and caution and skill in transport was exercised by the experienced driver of the Defendant company who drove the vehicle, the goods were carried safely. The consignee has not refused to take the delivery. He has not even served a notice of protest at the time of taking delivery. The delivery was in good condition. The consignee has not issued the statutory notice to the carrier within the time stipulated under Sec.10 of the Carriers Act. Hence the present claim is time barred. He would also further contend that the driver has not signed any document to record damage at the time of delivery. He would further contend that the damage was not evidenced by any certificate and no claim made within the time allowed under the Carrier Act of 1865 (Act 3). The defendant would further contend that he is not aware of the alleged appointment of the surveyor to inspect and assess the loss and no intimation was made to him either by the surveyor or by the plaintiff. He would further contend that the assessment made on the basis of the surveyor's report and the consequent claim is excessive and is not in accordance with law. Before the settlement of the insurance claim by the second plaintiff with the first plaintiff collusively, no notice was given to the defendant nor his objection was heard and the alleged payment by the second plaintiff to the first plaintiff is collusive and fraudulent in law and fact. Hence, defendant is not liable to pay any amount due thereon. He would also deny that there is any liability to pay any interest. Hence, he would pray for the suit to be dismissed.
8. Based on this pleadings evidence were let in by both the parties, PWs. 1 and 3 were examined on the side of the plaintiff and DW1 was examined on the side of defendant, while Exs.A1 to 13 were marked on the side of the plaintiff, no document was produced by the defendant. Based on the oral and documentary evidence, issues were framed and ultimately on a careful consideration of the facts, the Court below has decreed the suit as prayed for with interest from the date of decree at 6% p.a. Aggrieved against the same, the defendant has preferred the present appeal.
9. Heard the learned counsel appearing for the plaintiffs and the learned counsel appearing for the defendant/respondent. The short and only question that arises for consideration in this appeal, is whether the second plaintiff is entitled to act on the basis of subrogation given by the first plaintiff to seek for recovery of amount from defendant for the damages carried to the goods in transport under the Carrier Act?
10. The learned counsel for the defendant/appellant has vehemently argued two important points:
(i) At the time of entrusting the goods they have not mentioned about the insurance between the parties.
(ii) At the time of delivery of goods no objection was made in writing. No protest was made at the time of payment of the transport charges. Therefore the presumption is that the goods were delivered properly and correctly. If there was any damage as claimed by the 1st plaintiff, they should ask for open delivery system or sought the drivers' report or atleast got an endorsement or signature from the driver on the back side of the waybill to show that there was damages. But the only allegations made by the 1st plaintiff is that there was an endorsement on the back of the waybill that the goods were in damaged condition. This has not been established with the necessary counter signature from the driver. Therefore the claim could not be made at all. The second argument was that the surveyor appointed by the second plaintiff / insurance company has taken survey and inspected the same on 22.07.92 and 23.07.92 which has not been intimated to the defendant and therefore whatever inspection done and whatever assessment made was not intimated to them and any decree on that assessment is legally not sustainable. Further, the assessor namely the third party has also not given any intimation or assessment about the report under the Carrier Act. A reply has been given by the defendant to notice sent by first plaintiff that since goods were booked on the owners liability, there is no liability to pay and hence the lower Court has wrongly come to the conclusion that the amount was payable by them and finding given by the lower Court is not legally sustainable or maintainable.
11. Per contra, the learned counsel for the respondents categorically brought to the notice of this Court, the fact that the damages has been done to the goods even at the time of the delivery is proved beyond any reasonable doubt by the endorsement made on the back which would state that 29 bails were received in wet condition and damaged during transit and those endorsement has not been counter signed by the driver. Therefore, there is no reply to accept the evidence that there are three copies of the waybill and one copy is the party copy which is available and other two copies which are carbon copies are available only with the first defendant / appellant herein and in proving his case, defendant has not chosen to produce these two copies which would clearly established beyond any reasonable doubt that in the carbon copy the same endorsement have been found and that the appellant has not chosen to produce those two documents. Therefore when the vital document which is in their custody have been not produced by the appellant, definitely, document which has been produced by the plaintiff should be accepted and lower Court rightly accepted and decreed the suit and hence the appeal deserve to be dismissed. The respondent's counsel would further contend that as per the statutory obligation under Section 10 of the Carrier Act, notice has to be issued within a period of 6 months from the date of damage. In this case Ex.A5 is a statutory notice issued by the first plaintiff which is dated 18.09.1992 and it was served on 23.09.1992 and Acknowledgment Card is Ex.A6 and reply has been given by defendant under Ex.A7 which is also dated 23.09.1992. Therefore the 1st plaintiffs issued a legal notice within a period of two months from the date of delivery of the goods. This is coupled with the fact that in the reply notice, the defendant has not chosen to raise these defences but chooses to put forward it in the appeal. At the first instance when the reply notice was issued that too to the statutory notice, it was stated that goods have been delivered at Delhi in a damaged condition as per the endorsement in the waybill for which also no objection was taken by the defendant till the filling of the suit and only in the written statement such an objection was raised. Under law, the evidence of the expert, who is the surveyor appointed by the authority namely the insurance company, is a valid one and expert evidence have been properly brought out. In any event merely because notice was not issued by the surveyor it would not invalidate the claim as per the decision of the Division Bench of this Honourable Court reported in 2004 4 CTC Page 103 (Bond Food Products Pvt. Ltd. v. Planters Airways Ltd.) wherein it was held that no notice of appointment given to carrier in order to survey before conducting the said survey and submitted his report to the carrier will not disentitle the claimant to claim the relief. When the carrier has failed to appoint the surveyor for assessment of damage of goods and also failed to prove that the damage occurred was not due to their negligence, the expert's report could be accepted. The surveyor's report, which is marked as Ex.A3, and the corresponding bill for the same under Ex.A4, clinchingly proves beyond any reasonable doubt, that the damaged goods are under the subrogation and the plaintiffs/respondents are entitled to get the remedy and the lower Court has correctly granted the relief.
12. On a careful scrutiny of the documentary evidence let in by both parties and on hearing the submissions made by both sides, the only question which has been mainly argued by the both parties is that the damages was not protested at the point of delivery. A careful scrutiny of the evidence would clearly indicate that the goods in question was delivered for transport and at the time of consignment, it was in good condition. The carrier has never objected nor there was any discrepency or any damage at the time of delivery for transportation. Eventhough the transport bills would show that goods were duly packed by tarpaulins, at the time of delivery at Delhi, the first plaintiff had specifically made an endorsement on the back side of the waybill on the date of delivery itself as follows:-
"Received the consignment in damage condition which is found in Ex.A1 on the back side and also stated 29 bails in wet condition".
13. The only explanation which the appellant would state is that when the goods were delivered at the site of the 1st plaintiff, the 1st plaintiff should have taken the signature of the driver. If there is no signature, the endorsement could have always been written at a later point of time and therefore, this could not be relied on at all.
14. Per contra, the learned counsel for the respondent had rightly pointed out that as per the evidence in the cross examination, it is admitted that there are three copies of the said waybill and they have carbon copies and any endorsement made can be produced by the defendant. Ex.A1 is the copy of the plaintiff and other two copies are in the custody of the appellant. It should not have taken much time for the appellant to produce those copies of the waybill to prove before Court that such endorsement is not available in their copy and that this endorsement could have been made at a later point of time. Thus, the vital document, which is in the custody of the defendant/appellant herein, was not produced before Court. When such vital document, which is a clinching evidence to prove the very crux of the case had not been produced, as rightly pointed out by the Court below, the Court below has to believe only the document relied upon and produced by the 1st plaintiff before Court. In other words, there is no contra evidence to prove that the goods were duly delivered by the defendant/appellant in good condition, as it was entrusted to them at the time of transport. Once if it is proved that the goods were delivered in damaged condition, especially 19 bails, then automatically the defendant would be liable to pay compensation.
15. As far as question of compensation is concerned, in this case, the first plaintiff has insured the property with the second plaintiff. On such receipt of the damaged goods along with the way bill with an endorsement that 19 bails were damaged, the 1st plaintiff had immediately intimated it to the insurance company. The Insurance company has also, immediately sought for appointment of surveyor to assess the damage. The independent surveyor has also inspected the goods within the period of 8 days viz., on 22.07.92 and 23.07.92 and assessed the damage and filed a report on 23.08.1992 under Ex.A3 giving a total valuation of the damages. The only defence here is that such appointment of surveyor was neither intimated by the plaintiffs or the insurance Company or by the surveyor before inspection and if it was intimated, he would also taken part in the inspection and verified the above aspects. Since there was no open delivery system in the delivery, relying upon the evidence of expert cannot be made applicable to the fact of the case. In this connection, the learned counsel for the respondents brought to the notice to this Court, the decision of the Division Bench of this Honourable Court reported in 2004 4 CTC page 103 (Bond Food Products Pvt. Ltd. v. Planters Airways Ltd.) wherein in an identical situation where notice was not issued either by the company or by the surveyor and contended that such a report will not be acceptable, relying upon the decision of the Supreme Court reported in 1991 AJC 811 (Gwalior Transport Co. Ltd. v. National Insurance Co. Ltd.), the Division Bench concluded that in spite of the notice not having been given, the insurance company is liable to appoint the surveyor and such report could be accepted. The relevant portion of the Judgment is extracted hereunder :
"14.4. Of course, no notice was given by the second plaintiff to the defendant before appointing the surveyor (P.W.2) to assess the damages; nor the surveyor (P.W.2) gave any notice to the defendant before conducting the survey and submitting his report (Ex.A4) recommending for a payment of Rs.66,368.83p. Even though serious objections are made by the learned counsel for the defendant as to the reliance placed on Ex.A4 on those grounds, we are unable to appreciate the same in view of the decision of the Madhya Pradesh High Court in Gwalior Transport Co. Ltd. v. National Insurance Co. Ltd., 1991 ACJ 811, wherein Mr.R.C.Lahoti,J., as His Lordship then was, held as under:
"The surveyor is an expert in the field of survey and unless there be something positive to discredit him, his assessment has to be accepted. It would have been better if he had assessed the quantum of damages in the presence of the appellant. However, the plaintiff would not be non suited and the survey conducted by C.P.Sarwahi would not be discarded solely for this reason. A civil case has to be decided on preponderance of probabilities. The goods were delivered from the custody of the carrier to the consignor who was also the consignee and there was nothing which prevented the carrier from employing a surveyor for assessment of damages specially when an open delivery was being insisted upon. The carrier could also have insisted on a survey being conducted in his presence which was not done. In the matter of assessment of partial loss to the goods, some guesswork has to be allowed. The price of the contents of bales is based on the invoices. Discount has been given for the value of the salvage. Primarily, the payment was to be made by the insurance company because the consignor was claiming from it. There is no reason to assume that any extra or unreasonable assessment would have been acceptable to the insurance company."
14.5. When the defendant/carrier failed to employ a surveyor for the assessment of the damages on his own and also failed to prove that they have not committed any negligence, the evidence of the Surveyor (P.W.2), the report of the surveyor (Ex.A4), and his assessment with respect to the quantum of damages have to be accepted."
16. The decision of the Division Bench and the Supreme Court is clear that the report filed by the surveyor, which is an expert independent body, can be accepted by the Court and lower Court is correct in accepting such report and passing an award for compensation payable by the defendant. There is no discrepency in the decree passed by the lower court.
17. The last question which is tried to be raised is a question of limitation as to whether under section 10 of the Carrier Act, a statutory notice which is contemplated had been given within a period of 6 months from the date of damage or not?. Under Ex.A5, the notice which has been intimated is as early as on 18.09.1992 which is well within a period of two months from the date of delivery. Therefore, the question of limitation does not arise at all.
18. In the result , there is nothing to interfere with the findings of the Court below. The appellant has not brought any material to the notice of this Court to interfere with the findings of Court below. Hence the appeal is dismissed. No costs.
ogy To The Sub Court, Hosur