Karnataka High Court
Indo Arya Central Transport Limited vs M/S Unibic Biscuits India Pvt. Ltd on 14 August, 2023
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2023:KHC:29078
RFA No. 14 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 14 OF 2018 (MON)
BETWEEN:
1. INDO ARYA CENTRAL TRANSPORT LIMITED
INDO ARYA HOUSE,
NO. 147, TRANSPORT CENTRE,
ROHTAK ROAD,
NEW DELHI - 110 035.
REP. BY ITS MANAGER
...APPELLANT
(BY SRI. R. NAGENDRA NAIK, ADVOCATE AND
SRI. S.R. JAYAKUMAR, ADVOCATE)
AND:
1. M/S UNIBIC BISCUITS INDIA PVT. LTD.
REGISTERED OFFICE AND FACTORY,
@ NO. 51/1A, HEGGADADEVANAPURA
VILLAGE, HUSKUR ROAD, ALUR POST,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE-562 123.
Digitally signed by
2. M/S UNITED INDIA INSURANCE COMPANY LIMITED
BHAVANI BAI G
Location: High
DO VI, NO. 89/1, 2ND FLOOR,
Court of Karnataka 11TH CROSS, SAMPIGE ROAD,
MALLESWARAM,
BANGALORE-560 003.
REP. BY ITS
DIVISIONAL MANAGER
...RESPONDENTS
(BY SRI. RANGANATHAN P S.,ADVOCATE AND
SRI. R. RAMESH, ADVOCATE FOR R1 AND R2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 01.09.2017 PASSED IN
OS.NO.103/2014 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, (CCH-15) BENGALURU, DECREEING THE
SUIT FOR RECOVERY OF MONEY.
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NC: 2023:KHC:29078
RFA No. 14 of 2018
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant under Section 96 of CPC for setting aside the judgment and decree passed by the VIII Additional City Civil and Sessions Judge, Bengaluru in O.S.No.103/2014 dated 01.09.2017 for decreeing the suit of the plaintiff.
2. Heard the learned counsel for the appellant and learned counsel for the respondents.
3. The appellant is defendant and the respondent is plaintiff in the Trial Court. The rank of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the Trial Court is that the plaintiff No.1-Insured and plaintiff No.2 is M/s United India Insurance Company Limited have filed a suit for recovery of Rs.5,54,562/- together with 12% interest towards the damages. It is alleged that the plaintiff No.1 during the course of their business, on 23.12.2010 -3- NC: 2023:KHC:29078 RFA No. 14 of 2018 dispatched a consignment consisting of 810 packages of Cookies with instructions to deliver the same to the Branch office at Ludhiana through the transporter/defendant in the lorry on or before 26.12.2010. The goods were loaded in a truck bearing No.HR 38 J 3459, but later it came to know the said truck developed some mechanical defect, hence, the defendant reloaded the consignment to the truck bearing No.HR 55 L 3743, when the said truck while proceeding towards Ludhiana and when it reached Jaipur on 26.12.2010 near the township of Katputli, Rajasthan which is at a distance of 110 km from Jaipur, a pre- meditated riot of Gujjar agitators blocked the National Highway where the truck said to be fired by some unknown miscreants and a complaint was lodged by the defendant's driver. Subsequently, the plaintiff No.1 claimed the value of the property with the plaintiff No.2 who is the insurer of the goods. Accordingly, the plaintiff No.2 settled the insurance amount to the plaintiff No.1 as it is a subrogation. The plaintiff No.2 filed a suit contending that the defendant required to deliver the -4- NC: 2023:KHC:29078 RFA No. 14 of 2018 goods and without his knowledge, he changed the lorry and could have taken the precaution by transporting the goods and it is the responsibility of the defendant and if any failure, he has to pay the damages as per Section 12 of the Carriage by Road Act, 2007 (hereinafter referred to as 'Act'). Accordingly, the notice was issued to the defendant and filed suit claiming the damages.
5. In pursuant to the summon, the defendant appeared and filed written statement taking the contention that the vehicle was loaded with the biscuits and it was mentioned in the Invoice but while traveling, the vehicle was having some mechanical defect, therefore, the same was changed to another truck and later the said truck bearing No.HR 38 J 3459 was met with an incident where the vehicle was fired along with the goods by the unknown miscreants. A complaint was filed, the police registered FIR, subsequently, filed the final report. The defendant taken all the precautionary measures but it is because of riots, any Act of God and is not able to separate the -5- NC: 2023:KHC:29078 RFA No. 14 of 2018 goods, therefore, he is not liable to pay any damages. Hence, prayed for dismissing the suit. The learned counsel also taken contention that the suit is barred by limitation.
6. Based upon the rival pleadings, the Trial Court framed the issues which are as under:
"1) Whether plaintiffs prove defendant has not delivered entire suit consignment at destination?
(2) Whether plaintiffs prove due to non delivery of suit consignment plaintiff No.1 has suffered loss of Rs.5,54,562/-?
(3) Whether plaintiffs are entitled for the relief as sought?
(4) What decree or order?"
7. In order to prove the contention, the
representative of the plaintiff examined as PW.1-
Kriishnamurthy and got marked 12 documents and now the defendant one Manish Sharma examined as D.W.1 and got marked 3 documents as Exs.D.1 to D.3 and after -6- NC: 2023:KHC:29078 RFA No. 14 of 2018 hearing the arguments, the Trial Court gave findings by answering Issue Nos.1 to 3 in the Affirmative and finally decreed the suit which is under challenge.
8. The learned counsel for the appellant-defendant has contended that though the defendant taken contention that the suit is barred by the limitation as per the agreement between the parties i.e., plaintiff No.1 and the defendant was 23.12.2010. The goods have been supplied on 26.12.2010 but the suit was filed beyond three years i.e., on only on 02.01.2014 and the same was not considered by the Trial Court. He further contended that there must be previous 180 days notice shall be given to the defendant prior to filing the suit as per Section 16 of the Act and it was not given and there was exemption available under Section 17(c) of said Act which was not considered by the Trial Court and further contended that the judgment of the Trial Court is merely based upon changing the lorry is not correct. The lorry was totally burnt by the miscreants, the goods also burnt, complaint -7- NC: 2023:KHC:29078 RFA No. 14 of 2018 was lodged and FIR was registered, therefore, the appellant is entitled for the exemption under Section 17(c) of the Act. Hence, prayed for allowing the appeal.
9. Learned counsel for the appellant has contended that the Trial Court committed error in relying upon the Carriage of Goods Act and new Act came into force only on 1.3.2011 and it is contended that it is not correct as the incident was took place prior to the commencement of the said Act and therefore, prayed for setting aside the judgment.
10. Per contra, learned counsel for the respondents supported the judgment of the Trial Court and contended that after completing three years during the civil vacation, the case was filed on reopening day. There is no delay in filing the suit and it is not barred by limitation. He further contended that the notice was already issued by the plaintiff as per Ex.P.4 on 07.01.2011 itself and thereby, he has complied the provision under Section 16 of the Act and in respect of Section 17(c) of the Act, the learned counsel -8- NC: 2023:KHC:29078 RFA No. 14 of 2018 has contended that the Trial Court clearly held that the defendant should have taken caution and responsibility as per Section 12 of the Act, also not intimated to the plaintiff about changing the vehicle and it is duty of the defendant to intimate. If the same was brought to the notice of the plaintiff, he could have intimated not to move the vehicle and the Trial Court has stated without intimation they changed the lorry and no document produced, the truck was having mechanical defect. Even in the Ex.D.2-final report where the accused was not traced and that will not be useful to the case of the defendant. Therefore, the Trial Court has rightly considered and decreed the suit. Hence, prayed for dismissing the appeal.
11. Per contra, the learned counsel for the respondent has contended that as per Section 3 of the Act, the burden of the defendant to prove and the presumption is available in favour of the plaintiff. Hence, prayed for dismissing the appeal.
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NC: 2023:KHC:29078 RFA No. 14 of 2018
12. Having heard the arguments and on perusal of the records, the points that arise for my consideration are:
"1) Whether the plaintiff proves that the defendant has not delivered the consignment due to which he is liable to pay the loss of Rs.5,54,562/- towards value of the goods.
2) Whether the plaintiff is entitled for the relief or damages claimed in the suit?"
3) Whether the judgment of the Trial Court calls for interference?
13. The plaintiff in order to prove the case, the representative of plaintiff No.2 examined PW.1 and got marked 12 documents. Ex.P.1 is the Invoice copy, Exs.P.2 and P.3 are consignments and as per these documents and pleadings of both the parties, it is an admitted fact that the plaintiff approached the defendant for consignment of the goods i.e., biscuits to be transported from Bangalore to Ludhiana and the invoice also sent, the consignment also prepared by the defendant. It is a case of the plaintiff that the truck bearing No.HR 38 J 3459 was
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NC: 2023:KHC:29078 RFA No. 14 of 2018 mentioned in the invoice and the said truck was not met with an incident or fire, but without the knowledge of the plaintiff, the defendant changed the truck to the vehicle bearing No.HR 55 L 3743 and the said truck was fired, therefore, the defendant cannot be escaped for the liability. It is an admitted fact, the plaintiff No.1 and defendant No.2 agreed for consignment of the goods to be supplied or transported from Bangalore to Ludhiana. The further contention of the defendant in the written statement is that the vehicle was in fact loaded in truck No.HR 38 J 3459 and due to some mechanical defect, it was changed to another truck bearing No.HR 55 L 3743. The said truck while proceeding to Ludhiana reached Jaipur on 26.12.2010 and when the truck reached the township of Katputli, Rajasthan which is at a distance of 110 km from Jaipur, a pre-meditated riot of Gujjar agitators blocked the National Highway where the truck said to be fired by some unknown miscreants and totally the lorry and the goods were burnt. In this regard, the driver of the lorry gave complaint to the police as per
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NC: 2023:KHC:29078 RFA No. 14 of 2018 Ex.D1-the FIR which is produced by the defendant while examination. Admittedly, after the registration of the FIR, the Police investigated the matter and filed the 'C' Final Report as per Ex.D.2 and Ex.D.3 is the order sheet of the Additional Chief Judicial Magistrate, Kotputli District, Jaipur where the final report was accepted where the miscreants was not traced by the police. Ex.D.3(a) is the translation of the order sheet of the Magistrate. The final report has been accepted by the Magistrate. The documents of the plaintiff especially Ex.P.5-Survey report, Exs.P.6 to P.8- Letters, Ex.P.9-Settlement intimation voucher, Ex.P.10- Claim disbursement voucher, Ex.P.11-Certificate of fact, these documents goes to show that the plaintiff No.2- Insurance Company appointed a surveyor, the surveyor visited and verified the incident spot and given opinion that on 26.12.2010 at 9.45 p.m., when the truck in which the said consignment was loaded, fired by the Gurjar Reservation agitators near Kotputli District Jaipur, the vehicle was burnt and it was informed that the vehicle was fired and thereby the plaintiff No.2 has settled the
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NC: 2023:KHC:29078 RFA No. 14 of 2018 insurance amount to the plaintiff No.1 and the letter of disbursement also reveals the same. From the documents of the plaintiff No.2, it is clear that after the exact survey report of their company, they finalise the insurance coverage which was issued in favour of the plaintiff No.1.
14. Now the main point raised by the learned counsel for the appellant is that in respect of issuing the notice under Section 16 of the Act. Ex.P.4 produced by the plaintiff reveals that on 07.01.2011, the notice was issued by the plaintiff No.2 to the defendant for settling the issue, therefore, the question of stating that there is a violation of Section 16 of the Act does not arise. As per the limitation point, the suit was filed on 02.01.2014 where the cause of action for filing the suit for three years ends in December 2014 after 20.12.2014 which is the civil vacation, therefore, the suit was filed on the reopening day i.e., on 02.01.2014 therefore, there is no bar of limitation as contended by the learned counsel.
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NC: 2023:KHC:29078 RFA No. 14 of 2018
15. The only contention of the learned counsel for the appellant is that as per Section 17 of the Act, there was exemption for payment of damages etc., On the other hand, the learned counsel for the plaintiff-respondent has contended that as per the Section 12 of the Act, it is the responsibility of the defendant to supply the goods or else pay the damages. In this regard, it is worth to mention Section 12 of the Act, which is as under:
"12. Conditions limiting exonerating the liability of the common carrier.- --
(1) Every common carrier shall be liable to the consignor for the loss or damage to any consignment in accordance with the goods forwarding note, where such loss or damage has arisen on account of any criminal act of the common carrier, or any of his servants or agents.
(2) In any suit brought against the common carrier for the loss, damage or non-delivery of consignment, 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 common carrier, or any of his servants or agents.
(3) Where any consignment has been detained for examination or scrutiny by a competent authority
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NC: 2023:KHC:29078 RFA No. 14 of 2018 and upon such examination or scrutiny it is found that certain prohibited goods or goods on which due tax not paid or insufficiently paid have been entrusted to the common carrier by the consignor which have not been described in the goods forwarding note, the cost of such examination or scrutiny shall be borne by the consignor and the common carrier shall not be liable for any loss, damage or deterioration caused by such detention of the consignment for examination or scrutiny:
Provided that the onus of proving that such incorrect description of goods in the goods forwarding note was received from the consignor shall be on the common carrier.
Explanation. --For the purposes of this section, competent authority" means any person or authority who is empowered to examine or scrutinize goods by or under any law for the time being in force to secure compliance of provisions of that law."
16. Section 17 of the Act is referred as under: "17. General responsibility of common carrier.-
Save as otherwise provided in this Act, a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage, arising from any cause except the following, namely:--
(a) act of God;
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NC: 2023:KHC:29078 RFA No. 14 of 2018
(b) act of war or public enemy;
(c) riots and civil commotion;
(d) arrest, restraint or seizure under legal process;
(e) order or restriction or prohibition imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorised by it in this behalf:
Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery of the consignment if the common loss, destruction, damage, deterioration or non-delivery of the consignment if the common carrier could have avoided such loss, destruction, damage or deterioration or non-delivery had the common carrier exercised due deligence and care in the carriage of the consignment."
17. On bare reading of Section 17(c) of the Act, which reveals, though there was a conditions, limiting, exonerating the liability of the common carrier under Section 12 of the Act, but Section 17 of the Act is exemption for payment of damages and it is in favour of the goods carriers, where it is stated that when the property is unable to deliver to the consignee due to any loss or destruction, damages or deterioration in transit
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NC: 2023:KHC:29078 RFA No. 14 of 2018 especially sub-Section (a) act on God; sub-Section (b) act of war on public enemy; sub-Section (c) riots and civil commotion, in this regard, Exs.D.1, 2 and 3 clearly reveals due to the Gurjar Reservation Agitation, the vehicle was burnt on the National Highway near Jaipur in Kotputli District jurisdiction. It is not the case of the plaintiff that there is no agitation for setting up fire by the agitators in the said incident at Jaipur. On the other hand, the very Officers of the Insurance company visited the spot, verified the burnt truck, gave report and thereafter, by satisfying the report, they settled the insurance coverage in favour of the plaintiff No.1. Though the proviso under Section 17 of the Act says that a common carrier shall be relieved of its responsibility for any loss, destruction, damage or deterioration or non delivery of the consignment, if common carrier could have avoided such loss, destruction, damage or deterioration or non delivery and the common carrier excise due diligence and carrying the carriage of the consignment. But on perusal of the entire evidence of both the parties and the documents
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NC: 2023:KHC:29078 RFA No. 14 of 2018 especially Exs.P.5 to P.11 and Exs.D1 to D3 clearly reveals that merely a truck was changed by the defendant by loading the goods and due to some mechanical defect, he changed the truck and sent the goods to the Ludhiana to deliver the same to the consignee, that itself cannot be a fault on the side of the defendant to say that he has not intimated due to which the goods was lost. On the other hand, the defendant with bonafide intention to deliver the goods, within the prescribed time on 27.12.2010, he has changed the truck and sent to the consignee. Merely non mentioning or intimating the plaintiff No.1 about changing the truck itself cannot be said to be dereliction of responsibility and due to which the goods was damaged cannot be acceptable. It is an act of the god and agitation on the way at Rajasthan in a District and not at Bangalore in order to avoid sending of goods from Bangalore. The defendant bonafidly shifted the goods from one truck to another truck with an intention to deliver the goods within time prescribed by the consigner and on the way, the lorry was set fire by the miscreants, it is not the driver of the
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NC: 2023:KHC:29078 RFA No. 14 of 2018 truck who committed any accident and due to which, the property was lost. But it is nothing but an agitating, the riot by some set of people on the way to the Ludhiana. Therefore, it cannot be considered that there is a willful negligent on the part of the defendant in loosing the goods. It cannot be said that the defendant is having any intention to cause any loss, the lorry could have saved by the defendant but the lorry also burnt by the miscreants, such being the case, it cannot be said that there is a negligence on the part of the defendant in shifting the truck from Bengaluru to Ludhiana. If at all the defendant have some knowledge regarding agitation, he could have stopped the truck at Bengaluru as the value of the truck is more than the value of the goods. Such being the case, the Trial Court committed error in holding that the defendant is negligent on his part in changing the truck. That apart, the Trial Court relied upon the provisions of the Carriage by Road Act, 2007 which came into force in 2011 but the Carriage by Road Act, 2007 applies in this
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NC: 2023:KHC:29078 RFA No. 14 of 2018 case where the defendant is entitled for the exemption under Section 17(c) of the Act.
18. Therefore, I am of the view, the Trial Court committed error in finding and decreeing the suit, by ignoring the said law and also the fact that the vehicle was burnt along with the goods and it is an agitation on the way to Ludhiana. There is no fault on the defendant in not supplying the goods to the plaintiff as per the contract and I am of the view, the defendant is not liable to pay any damages to the plaintiff's consignee. Therefore, the judgment and decree passed by the Trial Court is liable to be set aside. Accordingly, I proceed to pass the following order:
The appeal is allowed.
The judgment of the Trial Court in O.S.No.103/2014 dated 01.09.2017 is hereby set aside and the suit is dismissed.
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NC: 2023:KHC:29078 RFA No. 14 of 2018 Office to send the copy of the judgment to the Trial Court.
If any amount deposited by the appellant, the same shall be returned to the appellant/defendant.
Sd/-
JUDGE GBB-List No.: 1 Sl No.: 43