Karnataka High Court
M/S. Transport Corporation Of India ... vs M/S. New India Assurance Company ... on 7 April, 1999
Equivalent citations: 2000(3)KARLJ130
JUDGMENT
1. The defendant in O.S. No. 6762 of 1989, a suit for recovery of money, is the appellant before this Court, questioning the decree passed against them.
2. The plaint averments are that the first plaintiff is the New India Assurance Company Limited and the second plaintiff in M/s. N.G.E.F. Limited. The second plaintiff carries on business in manufacture of the transformers, motors etc., having its office at Byappanahalli, Old Madras Road, Bangalore. The defendant is the public carrier. On 31-12-1986 the second plaintiff entrusted a consignment of 15 Nos. KVA transformer with oil fittings for transportation and safe delivery at Gaya as per the orders of Bihar State Electricity Board. The defendant accepted the same under Lorry Receipt No. J-00420, dated 31-12-1986. The entire consignment was entrusted in good condition. The consignment was insured by the 2nd plaintiff with the first plaintiff under Policy No. 2222101507 covering all the risk such as damages, shortages, non-delivery etc. in transit. The lorry which was carrying the consignment met with an accident on 3-1-1987 at about 12 noon within the jurisdiction of Gopalapattanam Police of Andhra Pradesh State. The lorry fell at a low lying canal; as a result, all the transformers sustained damage. On receipt of the intimation of damages, the first plaintiff arranged spot survey and appointed one V. Ramana, an independent surveyor to make a spot inspection and report. The consignment which were lying damaged were removed to the defendant's godown. As the internal damage to the transformer could not he seen without opening and checking the internal transformers, they were brought back to Bangalore by the defendant's carrier and at the time of taking delivery, the 2nd plaintiff has made remarks on the back of the G.C. note as to the condition of the goods. Again the damage to the transformers were assessed by the Surveyor and a report was received on 16-8-1988. The first plaintiff, on scrutiny of the claim of the 2nd plaintiff, settled the dispute at Rs. 81,627/-. Accordingly, a letter of subrogation was issued to the first plaintiff. Notice was caused to the carrier/defendant. Hence, the suit filed claiming a sum of Rs. 81,627/- from the defendant.
3. The defendant in his written statement did not deny the entrustment of the consignment. However, he denied that the consignment was in a sound and in a good condition. According to him, the packing was not proper. He accepted the consignment under owner's risk. There was no damage whatsoever caused to the consignment during transit and it was delivered back to the 2nd plaintiff in the same condition as was entrusted to the defendant for transportation. The defendant disputed the survey report and the claim of the plaintiff. He contended that there was no statutory notice issued by the second plaintiff and hence the suit is to be dismissed.
4. On the above basis, the following issues are framed:
(1) Whether the plaintiffs prove that the 2nd plaintiff despatched the consignments through the defendant and defendant accepted the consignment for transportation and booked the same under lorry receipt No. J-00420 dated 31-12-1986?
(2) Whether the plaintiffs prove that the said consignments were damaged during transit?
(3) Whether the 1st plaintiff proves that second plaintiff had insured the consignment with it and on the claim of the 2nd plaintiff due to damage of consignment during transit, it has made payment of Rs. 81,627/- to the 2nd plaintiff and is entitled to recover the said amount from the defendant in exercise of right of subrogation?
(4) Whether the defendant proves that suit is not maintainable for want of statutory notice under the Carriers Act as averred in the written statement?
The Trial Court answered the issues as follows:
(1) Affirmative;
(2) Affirmative;
(3) Affirmative;
(4) Negative.
5. Now it is contended before me in the appeal that non-marking of the survey report is fatal to the suit. Examination of the Surveyor is also necessary. P.W. 1 has admitted that he has no personal knowledge of the suit transaction. P.W. 2 was neither present at the time of survey nor had he any technical knowledge. The fact that the second defendant kept quiet for two years and ten months has not been taken into consideration by the Court below.
6. Heard the learned Counsel for the parties.
7. The point is whether the judgment of the Trial Court is liable to be interfered with?
8. The fact that the consignment was accepted by the defendant cannot be disputed. The lorry which was carrying the consignment met with an accident near Gopalapattanam. It is also not in dispute that the consignment consisting of 15 Nos. KVA transformer and one case of various bolts, nuts and accessories. The fact remains that the goods were not delivered, to the consignee. A surveyor was appointed by the company and the company was made to pay a sum of Rs. 81,627/- as loss of goods to the plaintiff. Stepping into the shoes of the plaintiff, the insurance company has filed the above suit against the carrier.
9. Though the survey report is tagged, it is found that the report clearly mentions in detail the damages caused to the consignment. In the absence of any rebuttal evidence against the same, the liability of the defendant cannot be escaped, as per the dictum in Oriental Insurance Company Limited v Prakash Road Lines (Private) Limited. The contention of the defendant that no notice has been given at the time of conducting survey and the defendant is not bound by the said report cannot be accepted in the light of the dictum in Mysore State Co-operative Marketing Society Limited v Ko Maung Gyi and Sons and Others, which is to the following effect:
"Sri Banerjee observed that no reliance can be placed on the said survey since defendants had no opportunity to be present at the time of survey and the examination and the certificate had been issued behind their back. We do not find any substance in this contention. There appears to be no ground to reject the survey report and the certificate of the entomologist. In the circumstances of this case, we feel the probative value of the survey report is not in any way affected by reason of the defendants not being present at the time of the survey".
10. It is also seen that notice under the Carriage Act has been given under Ex. P. 7 and the statutory obligation within a period of six months before the suit has been despatched. On the question of interest also, the Trial Court has relied upon the dictum in Oriental Insurance Company Limited, mentioned above and awarded 6% interest.
11. In the light of the discussions above, and taking into consideration the written statement filed by the defendant, I do not find any merit in the appeal, the appeal is dismissed confirming the judgment and decree of the Court below.