This appeal is filed by the plaintiff in the suit against the judgment and decree passed in O.S No. 224 of 1982 on the file of the Subordinate Judge, Dindigul, dated 12.2.1985 The defendant in the suit is the respondent in the appeal. The parties are referred to as arrayed in the plaint.
2. The suit was filed for recovery of a sum of Rs. 62,042.61 being the damages suffered by the second plaintiff in respect of a consignment entrusted with the defendant on 17.2.1982 at Dindigul. The first plaintiff is the insurer who had compensated the second plaintiff and the suit was filed for recovery of the amount from the defendant with subsequent interest. On 17.2.1982, the second plaintiff had entrusted total number of 115 bags of 140 special housing Cone Yarn intended to be delivered to the consignee, M/s. Yarn Syndicate Limited, No. 7, Jambunatha Malik Lane, Calcutta. The defendant had issued a consignment note in G.C No. 15/1197 dated 17.2.1982 The second plaintiff has duly insured the goods with the first plaintiff to compensate the second plaintiff for any loss sustained by the second plaintiff while the consignment is in transit from Dindigul to Calcutta. The value of the invoiced goods as per the stock transfer challan was Rs. 1,92,600/-. The second plaintiff came to know that the vehicle with the goods met with an accident while proceeding to Calcutta at Chandramara on 7.3.1982 It appears that 108 bags loaded in the lorry completely got damaged and the carrier has delivered seven bags alone in good condition and the carrier has delivered 108 bags subsequently on 11.3.1982 and a survey was arranged and the Surveyor inspected the goods on 19.3.1982, 20.3.1982, 27.3.1982 and 28.3.1982 The defendant has also issued a certificate of damage and shortage on 1.4.1982 and accepted the estimated value of the loss as per survey report. It was the case of the plaintiffs that the loss resulted on account of continuos carelessness and negligence on the part of the defendant and after the issue of a notice on 21.4.1982, the first plaintiff settled the amount due and on the basis of the special power of attorney executed by the second plaintiff, the first plaintiff filed the suit on the ground that it has been subrogated into the right of the entire claim.
3. The defendant filed a written statement admitting the fact that the defendant carrier was engaged to deliver the goods of 115 bags of Housing Cone Yarn to the consignee, M/s. Yarn Syndicate Limited, but the defendant had not weighed the goods and the defendant did not know the number of cones in each bag. It was the further case of the defendant that the goods were intended to be delivered at the owner's risk and the goods were insured with the first plaintiff and hence, the defendant was not responsible for leakage and breakage. According to the defendant, the defendant had delivered 115 bags on 3.3.1982 and 11.3.1982 and the consignee also accepted the goods without any complaint. It was the case of the defendant that the lorry of the defendant met with an accident at Chandramara and the defendant arranged another vehicle and loaded the goods and delivered the same on 11.3.1982 The defendant has pleaded that the defendant did not know anything about the survey conducted by the Surveyor and no notice was issued to the defendant prior to the survey and the survey was not conducted in the presence of the defendant. The defendant denied that the accident had occurred due to the misconduct and negligence of its employees. According to the defendant, it had taken all proper care and the goods were also delivered and received without any protest. The defendant has also raised other contentions. Like, power of attorney was not valid, etc., however, the ultimate case of the defendant was that the defendant was not liable for the suit claim. In so far as the certificate of damage is concerned, that was not issued voluntarily, but it was issued on compulsion and in the certificate, it is mentioned that it was issued strictly without prejudice. According to the defendant, the loss was not due to the negligence or misconduct of the defendant. The defendant also raised the question of jurisdiction of the trial Court to try the suit, however, that issue went against the defendant and hence, it is not necessary to consider the same.
4. The trial Court, on the basis of the pleadings, framed as many as 8 issues for consideration and held that the first plaintiff is not entitled to recover any amount from the defendant. According to the trial Court, the loss or damages to 108 bags of goods was attributable to the accident and hence, the first plaintiff is not entitled the damages and the plaintiffs have not established that the loss occurred due to the negligence on the part of the defendant. The trial Court was also of the opinion that there was no valid subrogation and the suit is also bad for non-joinder of the party, viz., M/s. Yarn Syndicate Limited, Calcutta. It is, in this view of the matter, the trial Court dismissed the suit. As against the judgment and decree, the present appeal has been preferred by the plaintiffs in the suit.
5. Mr. Nageswaran, learned counsel appearing for the appellants submitted that under the provisions of the Carriers Act, it is not necessary for the plaintiffs to prove that the loss or damage was due to the negligence of the carrier and it is for the carrier to prove that the loss or damage or non-delivery of the goods was not due to the negligence of the carrier. Learned counsel submitted that there is no proof or evidence to show how the accident had occurred and the burden of proof is on the defendant to prove how the accident had occurred. Learned counsel submitted that the agent of the defendant in Calcutta was not examined and only the booking clerk at Coimbatore was examined and there is no proof that there was a heavy rain and the lorry skidded due to the heavy rain. Learned counsel submitted that the accident due to heavy rain cannot be regarded as an act of God and the case of the defendant that no notice was given before the survey was conducted is incorrect as is evident from the damage certificate and the survey report. He referred to the provisions of Section 64 (UM)(2) of the Insurance Act, 1938 and submitted that the survey was conducted in compliance with the said provisions and there is no evidence let in to prove that there was any rain. Learned counsel referred to the decision of this Court in Thirupathi Venkatachalapathy Lorry Service v. The New India Assurance Company Limited (1988 I L.W 327). and submitted that it is not open to a public carrier to say that it is carrying goods at the owner's risk. He therefore submitted that the negligence is not attributable to the owner. He referred to the decision of the Madhya Pradesh High Court, Gwalior Bench in Gwalior Transport Co. Ltd. v. National Insurance Co. Ltd. (1991 ACJ 811) and submitted that the claim of the consignor was settled by the first plaintiff and on the basis of the settlement and on the basis of the authorisation, the suit was filed. Learned counsel for the appellants also submitted that the trial Court went wrong in placing the burden of proof on the plaintiffs to prove the negligence and the other reasoning given by the learned trial Judge are not correct and hence, he prayed that the suit may be decreed as prayed for.
6. Mr. V. Bhiman, learned counsel appearing for the respondent, on the other hand, submitted that the goods were transported at the owner's risk and in the consignment note, it has been clearly stated that the defendant was not responsible for leakage and breakage and the report from the police clearly shows that the lorry skidded into a roadside ditch as a result of which the cargo fell in the ditch. Learned counsel therefore submitted that it was not due to the negligence on the part of the defendant that the accident had occurred, but it was an act of God due to the heavy rain that the lorry skidded which resulted in the accident and therefore the defendant is not liable to make good the loss. Learned counsel further submitted that the survey report was prepared without giving prior notice to the defendant and the certificate of damages given by the defendant was given without prejudice to its right. He also submitted that the plaintiffs have not produced the police report enclosed along with the certificate of damages and the report would show that there was no negligence on the part of the defendant and the plaintiffs have to discharge the burden of proof as required in Section 9 of the Carriers Act. Learned counsel also referred to various averments made in the written statement and the police report and submitted that it was due to the accident, the goods were damaged. Learned counsel for the respondent also submitted that the suit is bad for non-joinder of necessary party as M/s. Yarn Syndicate Limited is not impleaded as a party. He therefore submitted that there is no infirmity in the judgment of the trial Court calling for the interference of this Court.
7. I have carefully considered the submission of the learned counsel for the appellants as well as the learned counsel for the respondent. Ex.A-1 is the copy of the Insurance Policy taken by the second plaintiff. The yarn carried by the defendant was insured against road/rail risks, theft, pilferage and non-delivery risks including the risks of the rain and/or fresh water damages, subject to conditions attached thereto. The said policy was valid from 18.4.1981 and it remained in force for a period of 12 months from that date. Ex.A-2 is the declaration statement for February, 1982 for the Voyage Transit with relevant particulars regarding invoice number, etc. Ex.A-5 is the stock transfer challan of the second plaintiff wherein it is specifically stated that 115 bags of special combed cotton hosiery cone yarn were transferred to the account of M/s. Yarn Syndicate Limited, Calcutta with instructions to sell at the best price as per the terms of agency. Ex.A-6 is the Goods Consignment Note issued by the defendant dated 17.2.1982 The goods were damaged and the certificate of damages was given by the defendant in Ex.A-9, and in the certificate, it is mentioned that the value of the loss was estimated as stated by the party as per the survey report and police report. In the certificate of damages, it has been stated that the contents were found damaged, torn and reshaped due to the accident of the lorry and out of 115 bags booked, the defendant delivered 7 bags on 3.3.1982 and 108 bags on 11.3.1982 It is also seen from Ex.A-10, that the first plaintiff settled the claim of the second plaintiff. It is seen from Ex.A-11, letter of subrogation that the second plaintiff subrogated in favour of the first plaintiff all rights in respect of the loss or damage. The report of the surveyor is marked as Ex.A-4. The survey was done by one S.C Mazumdar, licensed Surveyor. It is seen that under Section 64-UM(2) of the Insurance Act, 1938, if the claim exceeds Rs. 25,000/-, for settlement of the claim by the insurer, a report should be obtained on the loss that has occurred from a person who holds a license issued under this section to act as a surveyor or loss assessor. Accordingly, report (Ex.A-4) of the licensed surveyor was obtained.
8. In this connection, it is also relevant to notice 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) has made the following observations which are pertinent to the facts of the case: —
“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 or would have at least noticed 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.”
9. It is, no doubt true that the defendant has pleaded that the defendant was not given any prior opportunity before the survey was conducted by the licensed surveyor. However, it is seen from the survey report (Ex.A-4), a letter dated 18.3.1982 was issued wherein the carrier was asked to attend the survey and even on the first day of survey, the representative of the carrier left without endorsing the survey result. The survey was conducted on 19.3.1982, 20.3.1982, 27.3.1982 and 28.3.1982 and the survey report clearly shows that all the bags produced for survey were badly water stained and 20 bags partly burst while other bags were deshaped and outer packing of many bags were torn. In the survey report, the amount of loss was determined and the extent of damage was noticed. As already noticed, the first plaintiff settled the claim of the second plaintiff and on the basis of subrogation in favour of the first plaintiff, the first plaintiff instituted the suit. Moreover, the defendant has not examined anyone from Calcutta office to disprove the statement in survey report. Further, the damage certificate issued by the defendant also refers to the survey report and it means that the defendant was aware of the survey report and its contents, and there were no remarks on the question of absence of prior notice in the damage certificate issued by the defendant.
10. The reasoning of the trial Court that it is for the first plaintiff to establish that the loss or damage was due to the accident of the lorry is not sustainable in law. The trial Court has completely overlooked the provisions of Section 9 of the Carriers Act, 1865 which reads as under: —
“Plaintiffs in 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 nondelivery of 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.”
11. A bare reading of the provisions of Section 9 of the Carriers Act clearly shows that there is no duty cast on the first plaintiff to prove the negligence against a common carrier for the loss or damage and it is not necessary for the first plaintiff to prove that the loss or damage or non-delivery was due to the negligence or criminal act of the carrier, his servants or agents. In other words, it casts a burden on the common carrier to prove that it was not due to its negligence, but it was due to the act of God, the loss had occurred. It is curious to note that the agent in the Calcutta Office has not been examined, but the person who gave evidence as D.W.1 was from Coimbatore and he has also admitted that there is no documentary evidence to show that there was rain. It is also relevant to notice that the defendant has not examined the driver. D.W.1 has also not produced the records indicating who was the driver of the lorry at the time of accident. Though he has denied the suggestion that the accident had occurred not due to the negligence of the driver, except the apse dixit of D.W.1, there is absolutely no evidence that there was rain at the time of accident and it was not due to the fault of the defendant that the accident had occurred. The conclusion of the trial Court that the first plaintiff is not entitled to the suit claim, arrived at by placing onus of proof on the wrong shoulder of the first plaintiff is not sustainable in law. The trial Court has also overlooked the important fact that in the certificate of shortage/damages given by the defendant (Ex.A-9), the defendant has stated that the defendant was not responsible for loss of profit, late delivery, non-delivery, part delivery, damages and shortage due to fire in godown and/or accident with the lorry carrying the goods, war, civil, commotion, riot labour trouble, damages due to absence of special instructions for carrying and storing of the goods and/or God's act or the act which is/was beyond the control of the company, their agents and servants. The trial Court has completely overlooked that the case pleaded by the defendant did not come within the excepted clauses found in the terms and conditions. The defendant has also not proved that it was due to the act of God that the accident had occurred beyond the control of the defendant. The trial court has focussed attention only on the earlier part of the terms and conditions, but has completely overlooked the latter part which clearly provides that the defendant company is exempt from liability where the loss or damage was caused due to the act beyond the control of the defendant, its servants and agents. The defendant has not established that the accident had occurred beyond its control. There is absolutely no evidence from the defendant to show that the case of the defendant fell within the excepted clauses.
12. Learned counsel for the defendant also pleaded that the goods were carried at the owner's risk and hence, the defendant is not liable. A similar contention was raised before a Division Bench of this Court in the case of Thirupathi Venkatachalapathy Lorry Service v. The New India Assurance Company Limited (1988 I L.W 327) and this Court has rejected the same and the Bench has held as under: —
“Under the law of public carriers, the public carrier is not entitled to say that he is carrying the goods at the owner's risk. It is very specifically stated that the goods transported through public carrier is only at the risk of the lorry owner and not at the risk of the owner of the goods.” The defendant has also not proved that there was a special contract entered into between the defendant and the second plaintiff. The trial Court has completely overlooked the provisions of
Section 9 of the Carriers Act that negligence is always attributable to the owner of the lorry. Under Section 9 of the said Act, it is not open to the carrier to say that goods were transported at the owner's risk.
13. The other reasoning of the learned trial Judge that there is no subrogation is also not sustainable as the document (Ex.A-11) clearly proves that the first plaintiff settled the claim of the second plaintiff on the insurance policy taken by the second plaintiff. The receipt given by the second plaintiff and the letter of subrogation and special power of attorney were also produced before the Court. Since the claim of the second plaintiff was settled by the first plaintiff, in view of the letter of subrogation wherein the second plaintiff transferred its every right and interest in respect of the claim amount in favour of the first plaintiff, the finding of the trail Judge that there was no valid subrogation is not sustainable in law.
14. Mr. V. Bhiman, learned counsel for the respondent submitted that though the certificate of damages given by the defendant to the second plaintiff was marked as Ex.A-9, the plaintiffs have not chosen to mark the police report attached to the certificate of damages and hence, an adverse inference should be drawn against the plaintiffs. I am unable to accept the submission of the learned counsel for the respondent on two counts. Firstly, no such objection was raised before the trial Court when the certificate of damages was marked without the police report attached to the said certificate. Secondly, the survey report is marked as document, Ex.A-4 and in the survey report, the police report has fully been extracted. Moreover, the defendant has not chosen to summon the report of the police, if the defendant has found that the report of the police was in favour of the defendant, and the report of the inquiry conducted by the police on the basis of the police report was also not marked by the defendant as an exhibit. That apart, the defendant has also not chosen to mark the first information report given to the police soon after the alleged accident. Hence, I am unable to accept the submission of the learned counsel for the respondent that an adverse inference should be drawn against the appellants for their failure to enclose the police report along with the certificate of damages, Ex.A-9. As already observed by me, the entire police report is found in the survey report, Ex.A-4, and therefore for the failure to enclose the police report with the certificate of damages, no adverse inference can be drawn against the plaintiffs.
15. The trial Court was also not correct in its view that the suit is liable to be dismissed on account of non-joinder of M/s. Yarn Syndicate Limited Calcutta. The trial Court has overlooked Ex.A-5 wherein it has been clearly stated that the goods were transferred to the account of M/s. Yarn Syndicate Limited which was required to sell goods at the best price and as per terms of agency agreement. It is no doubt true that M/s. Yarn Syndicate Limited is only an agent of the second plaintiff and therefore non-implicating of the agent as a party in the suit is not a fatal as the agent is not a necessary or proper party to the suit filed on the basis of the letter of subrogation of rights.
16. I find that all reasonings given by the trial Court are not sustainable in law and the first plaintiff is entitled to the relief as prayed for. The result is the appeal is allowed and the first plaintiff is entitled to a decree as prayed for in the suit and the first plaintiff is also entitled.
RR/VCJ/VCS.