The defendant is the appellant herein. The respondents/plaintiffs filed the suit for the recovery of Rs.1,60,337/- being the value of the goods damaged, from the defendant.
2.The case of the plaintiffs is as follows: The first plaintiff is the owner of the Centenary Mill at Madurai and the first plaintiff purchased 25 bales of cotton from M/s.Arjan Khimji & Co., having its office at Madhya Pradesh, for a sum of Rs.1,42,615.32/-. The said consignment was entrusted by the said M/s.Arjan Khimji & Co., with the appellant/defendant Lorry company on 10.03.1988 and when those consignments were transported in the Lorry TAU 7929 belonging to the appellant/defendant, it was alleged that the entire consignments were destroyed in fire on 11.03.1998, when the lorry was coming in the village Pilpank, Madhya Pradesh State. The 1st plaintiff insured his consignments which are to be transported through lorry, ship or Air from anywhere in India with the 2nd plaintiff and the 25 cotton bales, which were transported through the appellant/defendant was also included in that category and on the basis of the non-delivery certificate issued by the appellant/defendant on 03.06.1988, the 2nd plaintiff being the insurer, paid a sum of Rs.1,56,877/- to the first plaintiff and the 1st plaintiff also executed a letter of subrogation to the 2nd plaintiff and on the basis of the same, the suit was filed by the plaintiffs for the recovery of Rs.1,60,377/-, which included the amount paid by the 2nd plaintiff to ascertain the damages.
3.The appellant/defendant in the written statement contended that under the Carriers Act, a suit cannot be filed in this Court and the suit ought to have been filed either in the place where the fire had taken place or the Head Office of the appellant/defendant and hence, the Sub Court, Madurai, had no jurisdiction to decide that issue.
4.It is further stated that the power given to the 2nd plaintiff by the 1st plaintiff was not legally valid under law, though only the owner can institute a suit and the 1st plaintiff is not the owner of the property and on the date of the accident, the first plaintiff was not the owner.
5.It is further stated that there is no negligence on the part of the appellant/defendant and no claim was made under the Carrier Act and the claim of the plaintiffs is not admitted and as there is no negligence on the part of the appellant/defendant, they are not liable to pay any compensation.
6.Before the trial court, on the side of the plaintiffs, one witness was examined and 16 documents were marked and on the side of the defendant, no document was marked and no witness was examined.
7.On the basis of the pleadings and evidence, the following issues were framed by the trial Court.
(1)Whether the court has jurisdiction to decide the case?
(2)Whether it is correct to state that the power given by the 1st plaintiff to the 2nd plaintiff is not legally valid?
(3)Whether the 1st plaintiff was not the owner of the goods on the date of fire and hence, the first plaintiff has no right to institute the suit?
(4)Whether the defendant is not liable to pay compensation as the fire had taken place unexpectedly?
(5)Whether the excess amount has been claimed as damages?
(6)To what relief the plaintiffs are entitled to?
8.The trial court tried the Issue Nos.1 to 4 and held that delivery has to be made at Madurai and the 1st plaintiff has purchased the goods and hence, as per Section 19 C.P.C, the court has got jurisdiction.
9.It is further held that the letter of subrogation and power given by the 1st plaintiff is legally valid and the 1st plaintiff has purchased the property and has become the owner of the goods on the date of accident and as per Section 9 of the Carriers Act, even assuming that in the absence of any negligence or carelessness on the part of the lorry owner, any accident had happened, lorry owner is liable to pay damages.
10.It is further held that the claim was made within time and all the issues were answered in favour of the plaintiffs. While, answering issue No.5, the trial Court has held that in addition to the value of the goods damaged in fire, the plaintiffs claimed 10% interest, expenses paid to fire department and the expenses incurred for conducting enquiry and hence, the claim made is proper and decreed the suit as prayed for.
11.Aggrieved by the same, this appeal is filed by the defendant.
12.From the argument advanced by the learned counsel appearing for the appellant/defendant, the following points for consideration arose in this appeal.
(a)Whether the first plaintiff was the owner of the goods on the date of accident?
(b)Whether the court has jurisdiction to decide the suit?
(c)Whether proper notice has been given as per the Carriers Act?
(d)Whether the appellant/defendant is liable to pay compensation even though there is no negligence or carelessness on their part?
13.Point No:(a): It is submitted by the learned counsel appearing for the Appellant/Defendant, Mr.T.Srinivasa Raghavan, that there is no evidence adduced by the 1st plaintiff that he has become the owner of the property on the date of accident and it is seen from the documents filed by the plaintiffs that an amount was paid only on 22.03.1988 whereas the goods were entrusted on 10.03.1988 and the accident took place on 11.03.1988 and therefore, the 1st plaintiff was not the owner of the goods on the date of accident.
14.On the other-hand, Mr.Sridhar and Mr.G.Prabhu Raja Durai, the learned counsel appearing for the respondents, submitted that the 1st plaintiff became the owner of the property and it has also been made clear in the plaint and that was not denied by the defendant. Further, as per the lorry receipt, the first plaintiff is the consignee and the documents relied upon by the plaintiffs viz., Ex.A2 is the copy of the invoice and that will not prove that the payment was made only on 22.03.1998.
15.The learned counsel appearing for the first plaintiff/first respondent would further contend that as per the policy, Ex.A4, there is a special condition, by which any dispatches other than cotton in F.P.Bales supplied to the insured mill from anywhere in India are to be declared to us for insurance for the invoice cost plus freight charges and all cotton on the spot purchase made from the State of Gujarat, Maharashtra, Madhya Pradesh, Punjab, Haryana and Rajasthan are held covered for the invoice cost plus 20% escalation on the understanding that settlement of claim will be made as per invoice cost plus actual escalation in market value and the cotton in F.P.Bales supplied to the insured's mills at various places are to be declared for the invoice cost plus 10% to cover incidentals and it is also stated in the policy that the subject matter insured as per the policy condition, includes cotton bales also. Therefore the learned counsel appearing for the 1st plaintiff/1st respondent, Mr.Sridhar submitted that the first plaintiff has become the owner of the property, by purchase and as per the insurance policy, they claimed the amount from the 2nd plaintiff and executed a letter of subrogation and hence, the suit has been validly instituted.
16.He further submitted that as per the contract, the goods are to be delivered at Madurai and therefore, Madurai Court has got jurisdiction to decide the issue.
17.He further submitted that the goods were damaged on 11.03.1988 and on 03.06.1988, non-delivery certificate was issued by the appellant/defendant and after Ex.A10, claim was made on 27.09.1988, which is within six months time and the claim was made on 27.09.1988 mentioning the amount payable by the appellant/defendant and therefore, the claim was made in time.
18.Mr.T.Srinivasa Ragavan, the learned counsel appearing for the appellant/defendant, submitted that no proof has been adduced by the first plaintiff to the effect that they have paid the amount before the date of accident and thus, they became the owner of the property.
19.He further relied upon, Ex.A2, invoice and submitted that as per Ex.A2, the payment was made only on 23.03.1988 whereas the goods were destroyed on 10.03.1988 and therefore, on the date of destruction of goods, the first plaintiff has not paid the amount and hence, the first plaintiff was not the owner and therefore, any claim made by the 1st plaintiff is not legally sustainable.
20.He further submitted that as per Ex.A10, no claim was made and it has been only stated in Ex.A10, that they are in the process of assessment of damage and reserve the right to claim from the defendant, the damages suffered by them, arising out of the fire accident and this is not a valid claim as provided under Section 10 of the Carrier Act 1865.
21.To appreciate the contention of both the counsels, we will have to see whether the first plaintiff became the owner of the property on the date of the accident.
22.In the plaint, as well as in the earlier notice sent by the 1st plaintiff to the defendant, it has been specifically stated that the first plaintiff purchased 25 bales of cotton from M/s.Arjun Khimji & Co., and the price of the cotton as per the invoice is Rs.1,42,615.32/-, but in the written statement, there is no specific denial about the same and no specific plea has been taken by the defendant/appellant that the plaintiffs did not purchase the goods as claimed by them, before the accident and it was only stated that as per the invoice, Ex.A2, the title passes only on 22.03.1988 and therefore, on the date of the date of fire accident the consignor, Mr.Arjan Khimji & Co., was the owner of the property and hence, the 1st plaintiff is not the owner of the property.
23.As per
Section 2(1) of the Sales of Goods Act, 'buyer' means a person who buys or agrees to buy goods. Therefore, by this definition, even a person, who agreed to buy goods is a buyer and as per
Section 5 of Sale of Goods Act, a contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. The contract may provide for the immediate delivery of the goods or immediate payment of the price or both, or for the delivery or payment by installments, or that the delivery or payment or both shall be postponed.
24.As per chapter 3 of the Sale of Goods Act, under
Section 18, where there is a contract for the sale of ascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained.
Therefore, when the goods are ascertained as soon as the contract of sale was entered into the property and the goods is transferred to buyer.
25.Further, under
Section 19 of the said Act, where there is a contract for the sale of specific or ascertained goods, the property is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
26.As per
Section 19(3) of Sales of Goods Act,1930, unless a different intention appears, the rules contained in
sections 20 to
24 are rules for ascertaining the intention of the parties as to the time at which the property in goods is to pass to the buyer.
27.As per
Section 20 of the Sales of Goods Act,1930, where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed.
Therefore, from the provisions of
Section 20, when the goods are specific, ascertainable and are in a deliverable state, the property passes to the buyer when the contract is made.
28.It has been made clear by illustration given under
Section 20 of the Sale of Goods Act, "Sale on the 4 January of a haystack on the seller's land at the price of 145 to be paid on the 4th February; the hay to be allowed to remain on the seller's land until the 1 May: no hay to be cut until the price was paid. The property in the haystack passed on the making of the contract, and on the stack being destroyed by fire, the buyer must bear the loss.[Tarling v. Bazter (1827)6 B & C 360, 30 RR 355.
29.Specific goods has been defined under
Section 2(14) as goods identified and agreed upon at the time of contract of sale is made.
30.In this case, the goods are identified and therefore, on the date of making of the contract itself the title passed to the buyer, by virtue of
Section 20 of the Act. Therefore, even assuming that there is no admission to prove that the amount was paid by the first plaintiff before the accident had taken place, having regard to the various provisions of the Sale of Goods Act, the 1st plaintiff became the owner of the property and he is entitled to file the suit. Hence, point 'a' is answered against the Appellant.
31.Point [d]: It is seen from, Section 9 of the Carriers Act, "it shall not be necessary for the plaintiff to prove that such loss, damage or non- delivery was owning to the negligence or criminal act of the carrier, his servants or Agents." Therefore, there is no necessity to prove that the accident was due to the carelessness or negligence on the part of the carrier and this issue is answered against the appellant.
32.Point:[c]: Under Section 10 of the Carriers Act, no suit shall be instituted against a common carrier for the loss of goods unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time, when the loss or injury first came to the knowledge of the plaintiff.
33.In this case, the claim was made, as per Ex.A10, on 27.03.1988 and the actual amount was claimed on 27.09.1988, which is beyond the period six months and this was taken advantage of by the learned counsel appearing for the appellant/defendant to state that as the actual claim was made only after six months, the suit is not maintainable.
34.As per Section 10 of the Carries Act, 1865, notice has to be given within six months' time from the date of which, the loss or injury first came to the knowledge of the plaintiff. Therefore, before issuing notice the plaintiff must have full knowledge about the loss caused to him. Even though, the fire had taken place on 10.03.1988, on that date, it cannot be stated that the first plaintiff was aware of the loss and in my opinion, the 1st plaintiff came to know the knowledge of the loss only when the non-delivery was made by the defendants by Ex.A19, dated 03.06.1988.
35.Under, Ex.A9, the defendant informed that due to fire the above bales could not be delivered to the plaintiffs to the Madurai Unit. Therefore, only after the non-delivery certificate issued by the defendant, the plaintiffs must be having the knowledge of the total loss and the notice was issued on 27.09.2988 and hence, within the time.
36.It was argued by the learned counsel appearing for the appellant that on 17.04.1989 itself, the 2nd plaintiff has submitted a report about the total loss caused to the first plaintiff and therefore, on that date itself, the 1st plaintiff was aware of the loss of goods to him.
37.Even assuming that the 1st plaintiff came to know about the loss on 17.04.1989, Ex.A10, notice was issued on 27.05.1988, which is within six months' period and therefore, the notice is validly issued. However, in this case, according to me, the claim was made on 27.05.1988 itself. According to me, the notice must be issued within 6 months' time from the date of loss or injury, which came to the knowledge of the 1st plaintiff, which means the actual loss ascertained by the 1st plaintiff and within six months from that date, he must issue the notification.
38.In this case, as stated supra, notice was issued within six months, even assuming that the 1st plaintiff came to know about the loss of goods on 10.03.1988 as claim was made on 27.05.1988 and therefore, the contention of the appellant/defendant cannot be accepted. Hence, this issue is answered against the appellant.
39.Point (b): The appellant/defendant contended that Madurai Court has no jurisdiction to try the case. The learned counsel appearing for the 1st plaintiff relied upon the judgment reported in 1994 ACJ 1069, in the case of Prakash Road lines Pvt. Ltd., vs. United India Fire & Genl. Ins. Co. Ltd., and another, wherein the Division Bench of our Honourable High Court has held that express clause printed on the lorry receipts will not exclude the jurisdiction of the court and in this case, as per the contract the goods are to be delivered at Madurai and therefore, the Madurai Court has got jurisdiction.
40.In the judgment reported in 1990 ACJ 310 in the case of Globe Transport Corporation vs. National Insurance Co. Ltd.,and another, it has been held that those, who are entitled to demand of the goods from the carriage can also make a claim for the loss of goods. Hence, this point is answered against the appellant.
41.Therefore, I am in agreement with the conclusion rendered by the lower court and therefore, I do not want to interfere with the judgment and decree of the lower court.
42.In fine, the judgment and decree of the lower court made in O.S.No.177 of 1991, on the file of the Principal Subordinate Judge, Madurai, is confirmed and the appeal is dismissed. No costs.
er To, The Principal Subordinate Judge, Madurai.