Karnataka High Court
M/S The New India Assurance Co Ltd vs Patel Roadways on 15 November, 2010
Author: Subhash B.Adi
Bench: Subhash B.Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF NOVEMBER 201_Q..V'_O
BEFORE 1
THE HONBLE MRJUSTICE2 sUBHAsH_--E--.~»AfD1
REGULAR FIRST APPEAL NO. 1:Q?3._z2 00A;-R\éON1" 7
BETWEEN
1. M/SITHE NEw1ND1A...AssURANC--E'GO.
DIVISIONAL OFFICE,._MX/SORE, A '
THROUGH REGIONAL' OFE1*~i?E;:. 'L
BANGALORE 27, *
BY DULY CO1\IST_1TU'?ETiD AjrrORN_E'{;- A '
2. M /s. sc_HE':.rARAN LA_E30'i{,ATC)E?,1ES.
PRIVATE "
HERBAL '1NDUsTR';AL'A,REA, .
' -
BY SP-ECIAL POWER
A'I'I'ORNEYA HOLDER .« V .
PLAINTIFF» N'O..1_j--. " APPELLANTS
" ('BY sR§:~K;i_ RAG, ADV.)
PAT-EL'J '
' «.NO.581__9.
NEW SUIJTANPET EXTENSION,
. . .. . .Bf~E.1\/EBOO AEAR,
'V V ..mfsORE--2
MANAGER. RESPONDENT
" ._ {I3Y B.L. SANJEEV, ADV.)
2
THIS RFA IS FILED UNDER SECTEON 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DT. 2.7.04 PASSED
IN O.S.NO.369/96 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN.), MYSORE, DISMISSING THE SUIT FOR
OF MONEY.
THIS RFA COMING ON FOR HEARING, T15i'1s"'D.Af{,'TI§;EV it
COURT MADE THE FOLLOWING:
J UDGMEMISI A
This appeal is by the plairitifisaggiinsht judgment
and decree in O.S.No.369"/ 7542004 01'1 'C116 file
of Civil Judge, Seri_ior__ Divisio1*1:.;':My's.ore.'V1 .d 1' it it
2. as per their rank
before they - ' H
3. Tlieyhsiiit recovery of Rs.1,02,041/-
" with at the'ra.te.of 21% p.21. and costs. The case of
iithyat the second plaintiff is carrying on
' A' busiiieisds ih.'E'rri'isritifacturing of chemicals. He had booked a
'~..«fioynsigrirneizthvof goods from Mysore to be transported to
under Invoices Nos.RR/QC Note No.133/815468
. 815476 dated 15--06~1993 to be delivered by the
3
se-
defendant at Calcutta at the place of the second plaintiff.
The second plaintiff had taken a Marine Insuranceiéolicy
No.21/67100600852 dated 20-04-1993
plaintiff, which was in force at the..r_e1evant" 'l'he,,u "'
defendant had undertaken to deli;v.¢ry;'_"it1'ie
and had delivered the same. it was de_livereo'~,--..,it was --. 1'
found that the goods werezheavi=1yVVV:daIn--age§i' leaked on
account of cut or tear hehthatv quantity of the
goods was 484Q damage, the
second the first plaintiff
and the""first;':;gp1.ain'ti,ff~1,l» in'sur"er...v'sett1ed the claim of
Rs.1,o2,o4¢1}'} dated 28--10~1993. The
first plaintiff "beca.rnie it-he'~~--"subrogate to the rights of the
plaintiff. x"'l'h"e"Vsecond plaintiff in this regard
'addrV'gesse:d«..gV:gav41"letter dated 21-10-1993 to recover the
daniages by the second plaintiff and by virtue of
" I[".__l'etter offsuabrogation, the first plaintiff is entitled to recover
A sarne from the defendant. Accordingly, the plaintiffs
if =fi.l_ed a suit for recovery.
5
for being transported from Mysore to
Calcutta and delivered to M/s.Garvare
Paints Ltd, No.77/2, A Hazra R0ad,....__J':V'V"'4u"
Calcutta '?
2. Were the said g:=Q'0d;s»l. 4' '
damaged or leaked and not "in"'i-paelgingil 1
condition when delivered
3. Was the tipaiii-ag"e.'pcr['it;akage
caused during transit?'-.V 'v i i it V
4. duly insured
\Arith.----theA'V"i~§5 ;*p;lai1itiff_:Vd1iri.ng,the period of
tiaiisit f? '
V _ V_DidV plaintiff become
,_stiioi5;§'g-sited to tlfiexights of 2nd plaintiff '2
V§S~..'--:'the defendant liable to pay
' 11,02;'e4':1 /~ to the first plaintiff?
Is the defendant liable to pay
"iri§terest '? If so at what rate '?
'payil the damages.
6
8. Does the defendant prove the
goods were booked at owners' risk, and as
such it is not liable to pay any amount to ~
plaintiff?"
6. The plaintiffs in order :'to
examined the Administrative of the first,plai1'itiff; as
PW.l and got marked the gdocupmelntis T he
defendant did not chosw/fl_s_1~¢;a<i1 The Trial
Court held that', husiness and
manufacturing had booked a
consignment' the defendant and
held thatfthle V Avvere found damaged on
deliveryand fdisn1iss.ed*--._th~e:l suit on the ground that the
sghavg not"""established that the goods were
the evidence of PW.1 do not support
as regards. .th3.e'fl.proper package and the defendant was
"'if.-Ti."V'*«.u'1iaware the contents of the package and in these
circu-mlstances, the defendant cannot be made liable to
It also held that the goods were
raw;
('-
7
transported at the owner's risk and further, there is no
subrogation from plaintiff no.2 to plaintiff no.1.
agaisnt the said judgment and decree, the plaiiiiiffs _
appeal.
7. Sr1.K.Suryanarayana_ Rao, . learned A " V l'
appearing for the plaintiffs that of
goods, it was found tha::t\.,,4£he damaged. The
Surveyors Report_'EX.P.9V_ the goods
were damaged. goods is not
disputed by the dds.-unage of the goods is
also not has dismissed the suit
only on the 'ground goods were transported at the
._.Vowr1er'.s' risk. Itl"is.__Vin these circumstances, he submitted
ll'vthat*e\_ren_:Athle're_ is such a Clause, it does not absolve the
the damages during the transit. He relied
'upon.lthe""V.deeision reported in (2004) 4 SCC 553 in the
l¢ase'fi*opf lglath Bros Exim International Ltd. Vs. Best
___"'f«road\ivays Ltd. and submitted that the Apex Court
ulficonsidering the clause 'at owners risk' has held that it
r»9r>>':
it the
_' the'
8
would not absolve the responsibility of the carrier. of
carrying the goods safely and carefully. He also re].ied_'-.onx
another judgment of the Apex Court reported .
SC 1461 in the Case of Patel Roadways ll
Yamaha Ltd.. and submitted that seeming
Act does not warrant for provin:lg~~._thel.'r1egligelnce.;V'o'ii~ the
part of the carrier unlike tortuous
liability. He submitted that the proving
of negligence in H during
transit. He riallcourt erroneously
has heldlas regards to the poor
package goods; of the carrier to
receive the con'sigr1ment'~.in"proper package. It cannot carry
_detec*t'ive'" ..paCl{ag'e"l and thereafter allege that the
of the owner. Nothing is stated by
de.fend'ant.T.~'as to whether the package was proper or
No 'evidence is led by the defendant and even then,
Court erroneously holds that the plaintiffs have
it llgfailed to prove the case of damage, however Exhibit R9 is
.~§>%°*>.'.~..
9
produced, which is also not in dispute and in these
circumstances, the Trial Court committed an errorriin
dismissing the suit.
8. On the other hand,
appearing for the defendant snbrnittedpthat is notlan
eye Witness nor has examined goods" theyflrlllwere
packed for transportation';.. If "package
and there are defects in not liable to
pay the that when the
contract transportation is at the
owner's risk, be made liable. He also
submitted that not been proved.
" Sect--i.on 9 of"'the Carriers Act fell for consideration
Coiirt in the matter of Patel Roadways.
Thei.A,pex tat para 31 observed as under:
A T x "Si. Coming to the question of liability
of common carrier for loss of or damage to
goods. the position of law has to be taken as
fairiy well settled with the liability of a
as
\
10
carrier in India, _as in England, is more
extensive and the liability is that of an
insurer. The absolute liability Of the carri§?17
is subject to two exceptions: an act of
and a special contract: which the ,carri_er"n1a,y.
choose which has to enter
customer."
10. The Apex Cot.irt..hasgVft:--i;t.l*ier" when
the liability of a common' Act is
that of an ftirther clear by
the specifically laid
down thatlli' damage or loss to
deteriorat'i0n.l_ of to a carrier, it is not
necessary for~Vthe.yp-laintiffto establish negligence. Even
i:he"ge'nera1 principle in case of tortuous
who alleges negligence against the
it othergmustflp1'ove the same, the said principle has no
ll""'--__lapplication to a case covered under the Carriers Act. This
position not withstanding a special contract
Hlvbetween the parties. These principles have held the field
éw'
if
11
over a considerable length of time and have been
crystallized into accepted position of law.
1 1. From the judgment of the Apex clear»: _p
that the plaintiffs are not requiredlhlto
claim the damage under the provisio'n_s"of Cacvrriers :A.cf:,.l'1:~
so far as the Contract stipulated; thetltern1'.t':'at:'i§owner's
risk', the Apex Court in Brothers Exim
International Limited term "At
owners risk" of its liability
and it wouldibe ogrldamage to the goods
during tr:ansitA.'Apex Court relying on the
earlier inter=pretation'" the' words 'At owner's risk' has
__held tllat the stiptilation does not absolve the liability of
'ierliri. matter of damage during transit period.
if as packing is concerned, the defendant.
not "stepped into the witness box, there is no material
ll that when the second plaintiff booked the
'f=co_nlsignment package, was not proper and there was
12
leakage and due to imperfect package. Without these
materials on record, the Trial Court has given
holding that it was due to the defective ~
the damage must have been caused: if
there was defective package, that
the benefit of the defendant, " it
to take care of the goods accept goods for
transportation which are Court was
not justified have failed to
prove the to the goods is not in
dispute: in dispute and in the
absencefof defendant and the damage
having_been4"occurredA'=dtiring the transit. I find that the
judgnafenit-sVoi"~~thc Triaifiourt is not based on legal evidence
évtoihe interfered with. Accordingly. I pass the
foliowing§,~
ORDER
A appeal is allowed. The judgment and decree of Trial Court dated 0207-2004 in O.S.No.369/1996 on 13 the file of the Pr}. Civil Judge, (Sr. Du], Mysore, ie set aside. The suit of the plaintiffs is decreed as C1aim:ed:»_V1'o;' with Costs. 9 I Tfiéég JL