The first defendant in O.S.No.157 of 1989 on the file of the Subordinate Court, Srivilliputhur has filed this appeal, aggrieved against the judgment and decree dated 21.12.1993. The first and second respondents in the appeal were the plaintiffs in the suit and the second respondent in the appeal was the second defendant.
2.O.S.No.157 of 1989 had been filed seeking a direction against the defendants for payment of Rs.79,371/- (Rupees Seventy Nine Thousand Three Hundred and Seventy One only) together with interest at the rate of 12% per annum. In the plaint, the first plaintiff namely M/s.Sri Vishnu Shankar Mills Ltd., Rajapalayam through its director S.R. Rajagopalan and the second plaintiff namely the Oriental Insurance Company Limited, through its Senior Divisional Manager, Madurai and the second plaintiff also representing the first plaintiff as Power of Attorney had stated that the first plaintiff had sent by consignment in lorry No.OBC 4933, through the first defendant namely South Eastern Roadways, 36 bales of cotton from Rajapalayam to the second defendant namely, M/s.Brigalala Purushotham Doss on 11.01.1986. The first defendant was a carrier of the goods. The goods were insured with the second plaintiff.
3.It had been stated that during transit from Rajapalaym to Calcutta, the goods, namely cotton got drenched in water between 31.01.1986 and 01.02.1986 and consequently, out of the 36 bales of cotton, 23 bales were damaged. Since this damage was intimated on 04.04.1986 by the second defendant, the second plaintiff, as an insurer had paid a sum of Rs.79,371/- (Rupees Seventy Nine Thousand Three Hundred and Seventy One only). This suit had been filed to recover the said amount from the carrier namely the first defendant.
4.In the written statement filed by the first defendant, it had been stated that the owner of the lorry No.OBC 4933 was not impleaded as a party to the suit. It was also stated that 36 bales of cotton was to a total value of Rs.2,30,400/- (Rupees Two Lakhs Thirty Thousand Four Hundred only). It had been stated that even if the cotton had been drenched in water, they can be dried and used again. Consequently, it had been stated that no loss was suffered. It had been further stated that the suit should be dismissed.
5.The second defendant did not file any written statement and was set ex-parte.
6.On the basis of the pleadings, the following issues had been framed.
(i) Whether the damage to the goods consigned by the first defendant was due to the negligence of the first defendant?
(ii)Whether there is cause of action against the first defandant.
(iii)Whether the suit is barred for non-joinder of parties.
(iv)Whether the plaintiff is entitled to the suit relief.
(v)To what other releifs are the parties entitled to.
7.The parties went to trial and during trial, the plaintiff examined S.
Nagarajan and Ex.A1 to A12. On the side of the first defendant, Murugan was examined as D.W.1. The defendants did not mark any documents. Among the documents marked by the plaintiffs, Ex.A.1 dated 11.01.1986 is the sale bill entrusting 36 bails of cotton to the first defendant. Ex.A.2 dated 30.11.1985 is the insurance certificate. Ex.A.4 dated 01.03.1986 is the certificate for damage of goods given by the first defendant. Ex.A.5 is the bill for the surveyor charges. Ex.A.8 is the letter given by the first plaintiff to the second plaintiff seeking compensation. Ex.A.9 is the receipt for the payment made by the second plaintiff to the first plaintiff for the said amount of Rs.79,371/- (Rupees Seventy Nine Thousand Three Hundred and Seventy One only). Ex.A.10 is the deed of subrogation and Ex.A.11 is the Power of Attorney given to the second plaintiff. Ex.12 is the letter written by the first defendant to the second plaintiff, dated 27.01.1987.
8.On the consideration of the oral and documentary evidence, the learned Sub-Judge, Srivilliputhur, held that the suit was not bared for non- joinder of necessary parties and further held that the plaintifs had a cause of action against the defendants and further also held that on the basis of the admission of the first defendant, the suit had to be decreed with costs.
9.The first defendant had filed the present appeal.
10.In the appeal it had been stated that when the goods were delivered to the third respondent, who was the second defendant in the suit, an acknowledgment was received and the third respondent did not raise any objection regarding damages to the goods. It had been stated that the damages had not been intimated at the time of delivery. It had been futher stated that notice was not given before the surveyor undertook the survey regarding damages to the goods. It had been further stated that the delivery receipt was not produced during trial.
11.I have carefully considered the arguments advanced.
12.In the present case, it is the case of the first and second respondents that the first respondent had entrusted 36 bales of cotton to the appellant herein. The value of the said cotton bales was Rs.2,30,400/- (Rupees Two Lakhs Thirty Thousand Four Hundred only) which was entrusted to the appellant herein. Ex.A.1 is the document which reflects such entrustment. The goods were insured with the second respondent and Ex.A.2 is the insurance certificate. It is an undisputed fact that the appellant herein acted as a carrier of the goods from Rajapalayam to Calcutta. The appellant ia a common carrier. It is also a fact and also admitted by the appellant herein in Ex.A.4 that out of 36 bales of cotton, 22 bales of cotton suffered damage due to drenching in water. The value of the goods which were damaged was also assessed as Rs.76,200/- (Rupees Seventy Six Thousand Two Hundred only).
13.Ex.A.4 is dated 01.03.1986. It had been issued by the appellant herein and the seal of the appellant and signature of the Branch Manager is also found. It is a certificate and the entire certificate is extracted hereunder:-
C E R T I F I C A T E This is to certify that 22 (Twenty two) bales out of 36 (Thirty six) bales despatched to Calcutta from Rajapalayam vide our L.R.No.492071, dated 11/1/86 are damaged to the extent as indicated hereunder:-
The above is a clear and categorical admission by the appellant regarding the damage of the goods while in transit. The goods had been entrusted by the appellant by Ex.A1.
14.Under Sections 8 and 9 of the Carriers Act of 1985, it has been provided as follows:
?8. Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent.-Notwithstanding anything herinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any [property including container, pallet or similar article of transport used to consolidate goods deliverd] to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servancts and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of section 3 apply and in respect of which the declaration required by that section has not been made,where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants.
9.Plaintiffs, his suits for loss, damage, or non-delivery, not required to prove negligence or criminal act.-In any suit brought against a common carrier for the loss, damage or non-delivery of [goods including container, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents.?
15.It is clear from the said provisions that the liablity of the common carrier is absolute. He can only plead an act of God or any other intervening act beyond his control to avoid liability. In this case, the appellant had not taken any such plea. Negligence is apparent since drenching of the cotton due to rain could have been avoided by properly covering them with the taurpalin or other effective water proof covers. On the other hand, the learned counsel for the appellant argued that when the goods were handed over to the third respondent herein the delivery report did not reflect the damages to the goods. This statement is in direct contrast to Ex.A.4 extracted above. ExA.5 is the receipt for payment towards the surveyor fee. Ex.A.8 is the claim bill raised by the first respondent with the second respondent, Oriental insurance company. Ex.A.9, dated 25.07.1986 is the receipt for the payment of Rs.79,371/- (Rupees Seventy Nine Thousand Three Hundred and Seventy One only) by the first respondent from the second respondent. It is this amount which is being now claimed in the suit. Ex.A.10 and Ex.A.11 are the Power of Attorney and letter of subrogation between the first and second respondents.
16.Ex.A.12 is the letter written by the appellant herein. Ex.12 is reproduced in full:-
M/s.V.N.C.Narichania (p) Ltd., P.O.Box No.1860, 157, Linghi Chetty Street, Madraas ? 600 001.
Dear Sirs, Sub: Claim against CN 492071, dtd.11.01.86 Ex. Rajapalayam to Calcutta.
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Ref: Your letter No.MD:5396:CC86 dtd.22.01.87 *** A kind reference is invited to our letter No.SER:MDS:3891:86 dated 18.12.86 wherein we have already requested to furnish your terms for settlement. It the circumstances, you are requested to inform us bout the terms for settlement.
Thanking you, Yours faithfully, for SOUTH EASTERN ROADWAYS,
17.Ex.A.12 clearly shows that the appellant herein had admitted their liability. The entire document reveals that the goods were entrusted to the appellant. The appellant was a common carrier. The appellant had to transport the goods from Rajapalayam to Calcutta. On the way, the goods got drenched in water. The goods being cotton were naturally damaged. This could have been prevented had the appellant taken the basic precaution of covering them by taurpalin or any other effective water proof sheets. The appellant had a duty to do so and failure indicates gross negligence. The goods had been insured with the second respondent. The insurance company had admitted the loss and paid the damages amount. The suit had been filed seeking recovery of such amount. The appellant had also admitted the loss. The appellant had also agreed to compensate for the loss suffered.
18.Consequently, I hold that the decree and judgment of the Subordinate Judge, Srivilliputhur decreeing the suit does not suffer from any infirmity. The appeal filed by the appellant has been filed as a mere formality than out of any lawful grievance.
19. In the result, the appeal is dismissed with costs and the judgment and decree in O.S.No.157 of 1989, dated 21.12.1993, by the learned Subordinate Judge, Srivilliputhur, is confirmed.
To The Subordinate Court, Srivilliputhur..