Madhya Pradesh High Court
M.P. Highway Organisation vs New India Assurance Co. Ltd. And Anr. on 11 December, 1990
Equivalent citations: II(1991)ACC509, 1991ACJ330
JUDGMENT T.N. Singh, J.
1. This appeal is from a misconceived suit. About that I have no doubt and the appeal must therefore be allowed.
2. It appears from Exh. P-2 that a consignment of 504 tins of Sikka brand mustard oil was being carried by a truck from Morena to Jabalpur. The goods receipt dated 1.10.1972 in regard to that consignment is Exh. P-2. What appears from Exh. P-3 is that prior to the despatch of goods, insurance was taken out for carriage by truck of consignments of Sikka brand sarson oil from Morena to any place in India except Jammu, NEFA, Assam and Kashmir. That is the insurance policy dated 6.9.1972; that was effective for the period between 6.9.1972 to 5.9.1973.
3. It is the case of plaintiffs who are twosome, the consignor and the insurer, that the goods were not delivered at the destination despite the goods being loaded on 1.10.1972 in the truck belonging to the defendant-appellant. At para 2 of the plaint the case of the plaintiff is that the truck left Morena for Jabalpur at about 3/3.30 p.m. on the same day. But it was found lying capsized at Jaderua, near Noorabad; and the matter was reported at the Noorabad Police Station on the same date. The plaintiffs claim is that the truck was driven carelessly, rashly and negligently.
4. However, the admitted position on facts is also that plaintiff No. 1, consignor, made a claim on plaintiff No. 2, the insurer, for the loss suffered on account of the consignment being damaged. The claim was partly accepted and payment was made by the insurer to the consignor of a sum of Rs. 33,500/-. Admittedly, full payment of the claim preferred for Rs. 45,686/- was not made. On the records are placed a Special Power of Attorney, Exh. P-12 and a letter of subrogation, Exh. P-13, which plaintiff No. 1 executed in favour of insurer. It is noteworthy that at no stage defendant was taken into confidence for the damage to be assessed though it occurred due to his truck meeting an accident. That fact is clearly established on the Assessors' report, Exh. P-14, commissioned by the insurer.
5. The short and simple defence was that duly insured goods were being carried and that the goods were accepted on the basis of the goods receipt, Exh. P-2. It is contended, however, by Mr. V.K. Sharma that the carriage contract was not binding on the plaintiffs as they had not signed the same. The basis of that contract is condition No. 1 printed on Exh. P-2-"All consignments are carried entirely at owner's risk. Consignors should take out their own insurance to protect themselves against any or all risks at their description...goods insured." In my view, the contention has no merit because the consignor cannot take the stand that the goods were not to be carried at his risk or that the goods were not to be insured and the risk not to be covered by the insurer. The reason is simple and pointed and admits no exception. As earlier alluded, being aware of and having accepted that condition, duly insured goods were handed over by the consignor for carriage.
6. Even if the defendant's liability could be determined in terms of Sections 151 and 152 of the Contract Act on the footing that he was a deemed bailee for the goods entrusted to him for carriage, there was a 'special contract' envisaged under Section 152. Indeed, in due fulfilment of that contract, in the instant case, duly insured goods were delivered for carriage and the bailee's liability and responsibilities were thereby limited. In any case, the bailee is required to take care of the goods as a man of ordinary prudence. How can it be suggested that the defendant could anticipate the accident? Nothing has come on record to suggest that the accident was deliberate mishap or there was any negligence or default of the driver for which the owner of the truck was vicariously liable. If the driver was convicted and his negligence proved, that evidence should have come.
7. Mr. Sharma has cited Gwalior Transport Co. (P) Ltd. v. National Insurance Co. Ltd 1984 ACJ 81 (MP). On facts that case is clearly distinguishable. Indeed, the question raised therein was of proper 'subrogation' and the insurer's right to claim reimbursement that was upheld. At para 4 of the report the facts are stated. I find it difficult to apply the ratio of the said decision to the instant case as plea of defendant of that case was not of acceptance by him of insured goods.
8. For all the reasons aforesaid, I am of the view that the trial court erred in law in decreeing the suit against the defendants mainly on the footing that there was no completed contract evidenced on the basis of Exh. P-2 and that the condition No. (1) of the, goods receipt was not enforceable because the document did not bear the signature of the consignor. The trial court evidently misdirected itself in construing the said receipt as a contract which required acceptance of the consignor. That rather evidenced acceptance of the goods by the carrier, of the plaintiffs offering him to carry duly insured goods. The carrier was not required at all to enforce in its defence condition No. 1 (1) of Exh. P-2.
9. The upshot of the above discussion is that the suit, I reiterate, is misconceived; and that it is liable to be dismissed
10. In the result, the appeal succeeds and is allowed. Although the suit is dismissed, parties are left to bear their own costs throughout,