Madras High Court
Ms.Economic Transport Organisation vs Ms.Oriental Insurance Co. Ltd on 26 September, 2007
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 26/09/2007 CORAM: THE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Second Appeal (MD) No.1475 of 1993 Ms.Economic Transport Organisation Private Limited, rep. by its Manager, Owners and Transport Contractors, No.15, Gaja Moideen Street, Palakkarai, Trichy. ... Appellant Vs. 1.Ms.Oriental Insurance Co. Ltd., rep. by its Senior Division Manager, No.4, Permanate Road, Contonment, Trichy. 2.Ms.Simco Engineering Ltd., Trichy, Regd. Office at No.16,17, College Road, Madras-34. ... Respondents PRAYER Second Appeal filed under Section 100 of C.P.C. against the judgment and decree made in A.S.No.161 of 1992 on the file of the Subordinate Judge, Trichirappalli dated 07.01.1993 preferred against the judgment and decree made in O.S.No.1658 of 1988 on the file of the District Munsif, Trichirappalli dated 16.04.1992. !For Appellant .... Mr.K.Govindarajan for Sarvabhauman Associates ^For Respondents .... Mr.V.R.Subramaniam :JUDGMENT
The defendant in O.S.No.1658 of 1988 on the file of the Court of Additional District Munsif, Trichirappalli who had lost his defence before the Courts below is the appellant herein. The plaintiffs in O.S.No.1658 of 1988 has filed the suit for damages.
2.The short facts of the plaint relevant for the purpose of deciding this appeal are as follows:-
The second plaintiff has purchased 10 numbers of Greaves Lumbardini (Model LDA 680) Engines and accessories from M/s.Greaves Cotton and Company Limited, Bombay-23 on 31.07.1987 under the Invoice No.51/20/0302/I 17019 for Rs.1,79,743.20. The said consignment were booked at Aurangabad Branch of Economic Transport Organisation under Lorry Receipt No.511-3884 dated 28.08.1987. The second plaintiff is the consignee. The defendant is the carrier who had transported the said goods from Aurangabad to Trichirapalli. At the time of delivery by the defendant to the second plaintiff on 11.08.1987, out of the ten cartons of the engines delivered by the defendant, one box containing the said engine bearing Serial No.11-11-94128 was delivered to the second plaintiff in open condition and the engine was found to be broken and another engine bearing Serial No.11-11-04132 found to be damaged on opening the box.
The consignee, the second plaintiff could not take delivery of the consignment in good condition because the consignment was found to be in a damaged condition. For the damage caused to the second engine, the second plaintiff sent a letter to the defendant calling upon him to pay the compensation. The letter was acknowledged by the defendant but he has not sent any reply. The goods consigned have been insured with the first plaintiff under Policy No.41330/0/0/M/46/87/S.T./S.P.2. The second plaintiff had preferred the claim with the first plaintiff under Ex.A4. On the basis of Ex.A4 the claim form, the first plaintiff investigated the claim and settled the same after getting Ex.A12 Surveyor's Report from the assessor M/s.K.S.Sambasivam. The claim was settled by paying Rs.12,974/- by the first plaintiff to the second plaintiff. Ex.A5 is the receipt issued by the first plaintiff in favour of the second plaintiff for a sum of Rs.12,794/-. Thereupon, the second plaintiff had executed Ex.A6 letter of subrogation in favour of the first plaintiff with Ex.A7 special Power of Attorney dated 14.01.1988. The second plaintiff issued a legal notice to the defendant/carrier through his counsel under the original Ex.A8 which was received by the defendant under Ex.A9. The defendant being a common carrier, it is his duty to deliver the consignment accepted for transport to the consignee at the destination in good order. The damages of the consignment entrusted to the defendant was absolutely due to the negligence and failure to exercise the reasonable care and caution required by the defendant and his servants while the consignment was in transit. Under Ex.A11, the defendant has confirmed the damages caused to the consignment. Inspite of repeated demands and even after the issue of notices, the defendant has not complied with the demands made by the plaintiffs to the notices. Hence, the suit.
3.The defendant in his written statement would contend that the second plaintiff booked a consignment with the defendant for transport of goods, from Aurangabad to Trichirappalli. The defendant took utmost care in handling the consignment during transit and also unloading the same at Trichy. The damages have been occurred purely due to improper packing of the engine by the supplier for which the defendant is not liable. The consignment was booked at Owner's Risk and the second plaintiff alone is responsible for the damages. Even at the time of booking, it has been specifically mentioned that this defendant is not responsible for leakage and breakage and the second plaintiff had accepted the same and booked the consignment. Since the defendant has carried the goods with utmost care and caution, he is not liable to pay any damages to the plaintiffs. The certificate of damages will not give any right to the plaintiffs to lay a claim against this defendant, who is a carrier. The said certificate was also given without prejudice to the claim of the defendant and without admitting any liability for negligence or default on the part of the defendant. From Ex.A11, it is seen that the estimated value is only Rs.200/- which has been accepted by the second plaintiff. Further, it has been mentioned that the damages are due to improper packing. The Surveyor M/s.K.S.Sambasivam has given a report and on the basis of the said report, the averment that the first plaintiff has paid Rs.12,974/- to the second plaintiff is denied as false. Even if the first plaintiff had paid any amount to the second plaintiff will not bind the defendant. No opportunity was given to the defendant at the time of the inspection by the Surveyor. The second plaintiff had accepted the estimation loss at Rs.200/- in the Certificate of damages issued by the defendant. There is no need for the first defendant to re-assess the damages with the help of a Surveyor after the issuance of Ex.A11 certificate issued by this defendant. The plaint is silent as how the sum of RS.12,974/- was arrived at. The subrogation and special power of attorney dated 14.01.1988 by the second plaintiff to the first plaintiff is not valid. For the notice, this defendant has given a reply containing true facts. There is no negligence and failure to exercise due care and caution during transit of the goods. The claim of Rs.12,974/- made is high and excessive. Hence, the suit liable to be dismissed with cost.
4.On the basis of the above pleadings, the learned trial Judge had framed 2 issues for trial. Before the trial Court, P.Ws.1 to 3 were examined and Exs.A1 to A.13 were marked on the side of the plaintiffs and D.W.1 was examined and Exs.B1 and B2 were marked on the side of the defendants.
5.The learned trial Judge after meticulously scrutinizing the evidence both oral and documentary, has come to a conclusion that the plaintiffs are entitled to claim a sum of Rs.12,974/- as prayed for with interest and decreed the suit accordingly.
6.Aggrieved by the findings of the learned trial Judge, the defendant has preferred an appeal in A.S.No.161 of 1992 before the learned First Additional Subordinate Judge, Trichirappalli. After giving due deliberations to the submissions made by the learned counsel appearing for the appellants as well as the respondents and after scanning the evidence let in before the trial Court, the learned First Appellate Judge has come to an unassailable conclusion that there is no material on record to interfere with the findings of the learned trial Judge had dismissed the appeal which necessitated the defendant to prefer this second appeal.
7.The following substantial questions of law are involved in the second appeal for consideration:-
"1) Whether on the facts and circumstances of the case the Courts below are correct in coming to the conclusion that Ex.A-11 which does not conform to its carbon copy Ex.B-2 can be relied upon and on that basis a decree can be passed?
2)Whether the Courts below are correct in law in accepting the report of the surveyor (PW-2) who had conducted the survey of the damage to the engine without any notice to the appellant?"
8.Heard Mr.K.Govindarajan the learned counsel appearing for the appellant and Mr.V.R.Subramanian the learned counsel appearing for the respondents and considered their respective submissions.
9.Point:-
Under Ex.A1 Invoice on behalf of the second plaintiff, the defendant had transported 10 cartons containing Greaves Lumbardini Engine from Aurangabad to Trichirappalli. When the cargos reached the destination at Trichirapalli one box was found opened and a pulley was found in one of the engines broken due to improper handling. The damage was assessed as Rs.200/-. The defendant has also admitted the same under Ex.A11 damage certificate issued by him. According to the second plaintiff, the owner of the goods, when opened the remaining boxes one more engine in the carton was found completely damaged.
The second plaintiff immediately approached the first plaintiff who is the insurer of the goods transited from Aurangabad to Trichirappali, who made arrangements through P.W.2 a licensed surveyor to assess the damages caused to the said engine.
10.The learned counsel appearing for the appellant would contend that without giving any notice to the appellant, P.W.2 had assessed the value of the damages at Rs.12,974/- under Ex.A12 Report. The plaintiff has not made any claim under Ex.A11 (Copy of Ex.B2) but only under Ex.A12 Surveyor's Report.
11.The learned counsel appearing for the respondents relying on 2004 (4) CTC 103 BOND FOOD PRODUCTS PRIVATE LTD., REGISTERED OFFICE AT NO.80, 4TH BLOCK, KORAMANGALA, BANGALORE-560 034 AND ANOTHER V. M/S. PLANTERS AIRWAYS LTD., 13/5, KALASIPALAYAM, NEW EXTENSION I FLOOR, BANGALORE 560 002, contended that a Surveyor's report is considered to be an expert's report which cannot be eschewed merely because there was no notice given to the carrier. The short facts in the above ratio is that in an accident which took place on 01.02.1983, the entire consignment which belonged to the first plaintiff which were carried from Bangalore to Calicut through the carrier/defendant, and were insured with the second plaintiff, the entire consignment was badly damaged. The second plaintiff, the Insurance Company at Bangalore appointed the Licensed Surveyor (P.W.2) assessed the damages and shortage caused to the consignment. After the survey, P.W.2 Surveyor had submitted his report Ex.A4 recommending for the payment of a sum of Rs.66,368.83 to the second plaintiff towards damages and shortage in quantity of 1080 tins and 77 cartons of biscuits. On the basis of Ex.A4 Surveyor's Report, the first plaintiff made a claim under Ex.A5 to the second plaintiff. After negotiation the damage was settled at Rs.56,307.55 which was paid by the second plaintiff, the Insurance Company to the first plaintiff the onwer of the consignment. After receiving the said amount, Ex.A8 letter of subrogation was executed by the first plaintiff in favour of the second plaintiff, the Insurance Company who had filed the suit. The carrier/the defendant had resisted the suit on the ground of jurisdiction and on the ground that there was no privity of contract between the second plaintiff and the defendant and, thirdly on the ground that Ex.A4 Surveyor's Report is neither admissible in evidence nor binding on the defendant since there was no notice either before the appointment of the surveyor or before the survey was conducted by the surveyor. The trial Court dismissed the appeal. Aggrieved by the findings of the learned trial Judge, the appeal was preferred before this Court. On the point whether any notice to the carrier/the defendant is absolutely necessary before appointing the surveyor to assess the damages or before conducting the survey and submitted the report, relying on an earlier decision of the Madhya Pradesh High Court in GWALIOR TRANSPORT CO. LTD., V. NATIONAL INSURANCE CO. LTD reported in 1991 ACJ 811, the Division Bench of this Court held that "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 nonsuited 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 guess work 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 or unreasonable assessment would have been acceptable to the insurance company."
Ultimately, the Bench of this Court has allowed the appeal thereby setting aside the decree and judgment of the trial Court, decreeing the suit. The facts in the above case in all four corners applies to the present facts of the case. Ex.A12 Surveyor's Report was attacked by the learned counsel for the appellant on the ground that he is not a qualified surveyor. Relying on the admission by the Surveyor as P.W.2 in the cross examination that he has not produced any document to show that he is a qualified surveyor. But in Ex.A12 Surveyor's Report itself, the surveyor has furnished his license No. as SLA-2960 and has been specifically mentioned that Surveyor/Loss Assessor, Fire, Marine, Motor and Miscellaneous. He was licenced by the controller of Insurance and his license is valid upto 20.03.1989. So, the contentions of the learned counsel appearing for the appellant that Ex.A12 was not prepared by a qualified surveyor holds no water. The learned First Appellate Judge after taking into consideration Ex.A12 report of the surveyor had fixed the damages as Rs.12,974.32p/- after giving credit to Rs.5,000/- towards the salvage on the engine as credit to open by the insurer namely the first plaintiff. As per the claim made by the second plaintiff the first plaintiff under Ex.A4, had settled the amount to the second plaintiff under Ex.A5 who had given the letter of Subrogation under Ex.A6 in favour of the first plaintiff for filing the suit against the carrier/the defendant. In the reply notice under Ex.A10, the defendant has not questioned the credibility of Ex.A12 at all. But put the blame on the suppliers on the ground that they have not properly packed the consignment. Further, the plaintiffs have not made any claim on the basis of Ex.A11 (Ex.B2 copy). Only on the basis of Ex.A12 the Surveyor's report, both the courts below have concurrently held that the plaintiff is entitled to the suit claim. I do not find any illegality or infirmity in the findings of the Courts below to warrant any interference from this Court.
12.In fine, the second appeal is dismissed confirming the findings of the learned First Appellate Judge in A.S.No.162 of 1992 on the file of the learned Subordinate Judge, Trichirappalli with cost throughout.
vri To
1.The Subordinate Judge, Trichirappalli.
2.The District Munsif, Trichirappalli.