Madhya Pradesh High Court
Oriental Insurance Co. vs Mukesh & Co. And Anr. on 23 August, 1999
Equivalent citations: 2001ACJ1313, AIR2000MP35, AIR 2000 MADHYA PRADESH 35, (2000) 1 MPLJ 135, (2000) 1 TAC 716, (2000) 2 RECCIVR 565, (2001) 2 ACJ 1313
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT
D.M. Dharmadhikari. J.
1. This appeal has been preferred by the Insurance company against the Judgment and decree dated 29-11-1994 passed by the First Additional District Judge, Durg dismissing its suit claiming a sum of Rs. 1,06,600/- with 12% per annum interest thereon from the date of suit being the claim towards reimbursement of the amount of loss caused to respondent No. 1 as consigner of its goods to respondent No. 2 transporter under general policy of insurance.
2. The facts now not in dispute in this appeal are that a consignment of Bidi leaves was handed over by respondent No. 1 Mukesh & Company, dealers in tobacco products, to respondent No. 2 as transporter for its carriage from their godown in Padmanabhpur, Durg to be delivered at the destination Sambalpur in Orissa. The goods were loaded on 25-5-1988 in the truck for transportation by respondent No. 2. According to the case of the transporter, since the driver of the truck found that the Bidi leaves loaded were not properly tied, he stopped the truck at the Raipur Naka and contacted the transporter for help so that the consignment loaded be properly tied or fastened in the truck. While the truck was standing at the octroi post on the outskirts of Raipur, some time in the midnight, the consignment caught fire and was burnt resulting in total loss of the consignment.
3. Under the terms of the general Insurance policy between the appellant insurance company and the respondent No. 1 as the insured, the amount of loss has been paid by the insurer to the insured. After payment of the said amount, the insurer and the insured had jointly filed the suit against the transporter for recovery of the loss. The insurer claimed reimbursement of the sum paid to the insured under the letter of subrogation signed by them dated 8th of July. 1988 (Ex. P/1).
4. The "espondent No. 2 (resisted) the suit pleading, inter alia, that the consignment caught fire because of the sparks from the nylon ropes used for tying and tightening the consignment on the truck. It is pleaded that the accidental fire broke out because of the negligence of the labours or coolies provided by the consigner for properly loading and tying the consignment on the truck. It was, thus pleaded that the loss caused by fire was because of the negligence of the labours employed by the consigner and, therefore, the transporter is not liable.
5. The learned Judge of the trial Court dismissed the suit filed jointly by the insurer and the insured holding that the loss of goods was caused not because of any negligence or fault on the part of the transporter and, therefore, merely on the basis of contract or subrogation entered into inter se between the insured and the insurer, the transporter cannot be held liable for the loss of goods in the accidental fire.
6. Learned counsel Shri R. P. Agrawal appearing for the insurance company/appellant in this appeal, contends that the judgment of the trial Court is not correct either in law or on facts. It 1s submitted that the plea that the free broke out at the time of tightening of the consignment of the truck by the labours provided by the consigner, is clearly an afterthought and was set up for the first time in the written statement in opposing the suit. Taking this Court through the letters exchanged, after the accidental fire, between the consigner and the transporter and the legal notices exchanged between them, it is pointed out that at no point of time before filing the written statement it was ever stated by the transporter that the fire broke out because of any negligence of the labours engaged for the work of loading by the consigner. The learned counsel contends that under the terms of the contract for transport, the work of loading as part of transport was to be undertaken by the transporter and it was false on the part of the transporter to say that at the octroi post where the truck was standing any labour was engaged or supplied by the consigner for tying and tightening the goods loaded in the truck.
7. So far as the legal position on which the suit has been dismissed by the trial Court is concerned, the learned counsel contends that the learned trial Judge completely overlooked the provisions of Sections 8 and 9 of the Carriers Act, 1865 on which the suit was founded. It is argued that in a suit jointly filed by the insured and the insurance company for non-delivery or loss or damage to the goods by the transporter as 'carrier', negligence on the part of transporter is not required to be proved to sustain the claim. Reliance is placed on a Division Bench decision of this Court in Gwalior Transport Company Pvt. Limited v. National Insurance Co. Ltd., 1983 MPLJ 804 and the Single Bench decision of this Court in Associated Traders and Engineers Pvt. Ltd. v. Narendra Kumar and Co. (Civil Revision No. 464/77 decided on 27-10-77, shortnoted in 1978 MPLJ Note No. 5).
8. To ascertain truthfulness of the plea taken on behalf of the transporter, we have looked into the documentary and oral evidence on record. From the exchange of letters and notices mentioned above, it is clear to us that the plea taken in the written statement attributing negligence to coolies or labour alleged to have been employed by the consigner is an afterthoughts and has been set up to somehow avoid the liability of the transporter as the 'common carrier'. The learned counsel for the insurer has invited attention of this Court to a letter dated 25-5-1988 (Ex. P/8) sent by the transporter to the consigner in which the former had issued instructions to the latter that the truck would be sent and the goods be loaded for which the charges for loading and ropes would be paid by the driver. The contents of the above-mentioned letter support the case of the consigner that loading along with the transport was also the part of responsibility of the transporter. In this respect, the contents of the letter sent as late as on 22-7-1988 by the transporter to the consigner intimating the loss of goods by accidental fire, are also worth noticing. By the aforesaid letter dt. 22-7-88 (Ex. P/10), the transporter has informed the consigner that the truck while it was parked near the Raipur octroi post caught fire and the goods loaded in it were burnt in fire. In this letter containing the information of accident, there is no mention of the fact that the fire broke out at the time when the coolies were tightening the load on the truck with nylon ropes and possibly due to the sparks caused by friction of ropes. The contents of the letter of intimation of the fire accident sent to the police does not reveal that the fire broke out while the coolies were tightening the load on the truck with nylon rope. The enquiry and investigation report of the police as recorded in F.I.R. (Ex. P/15) dated 26-5-1988 is that there was possibility of fire due to smoking by anyone of the coolies engaged on the truck or due to sparks emitting from the passing train. The alleged cause of accident due to fire while tightening the load on the truck with the nylon ropes finds mention for the first time in the Insurance Surveyor's report dated 28-9-1988 (Ex. P/16) and the reply sent by the transporter through his lawyer (Ex. D/l) to the legal notice sent by the consignor.
9. On the above facts, assuming for the sake of arguments in favour of the transporter that the fire broke out while the load was being tied and fastened with nylon ropes by the labours or coolies, the liability to reimburse the owner of the goods for the loss is on the transporter as the 'common carrier' under Sections 8 and 9 of the Carriers Act. 1865. We find that there is no reliable evidence to hold that after the truck with load of consignment had already left the godown of the consignor on 25-5-88, the accidental fire which took place on the subsequent day i.e. 26-5-1988 was on account of any negligence of the coolies or labour employed by the consignor. We have already made a mention of the letter dated 25-5-1988 sent by the transporter to the consignor instructing the latter to collect loading charges from the driver of the truck. The above instruction clearly goes to show that loading of the truck was also the responsibility of the transporter. The consignment with the truck had already left the godown of the consignor a day before the accident. The fire broke-out while the truck was proceeding to its destination at the Raipur octroi post. If at the place, in the course of transit due to the alleged negligence of coolies fire broke out and the consignment of the consignor was totally burnt, the transporter cannot avoid its liability under Sections 8 and 9 of the Carriers Act.
10. Under Section 8 of the Carriers Act, a common carrier is liable to the owner for loss of or damage to any property delivered to such carrier, where the loss or damage has occurred due to any criminal act of the carrier or any of its agent or servants as also where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants. Section 8 of the Act reads as under :--
"8. Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent.-- Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of the agent or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of Section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants."
11. We have held above that the fire broke out at the time when the truck had already proceeded for journey towards its destination and was at the octroi post. The consignor was in no manner liable or responsible for proper loading of the truck. If the fire broke out due to some unknown cause or as alleged by the transporter, due to negligence of the coolies, the transporter as the 'common carrier' under Section 8 of the Act is liable to pay for the loss or damage to the consignee. Under Section 9 of the Act, in such a suit filed by the consignor for recovery of loss or damage to the goods entrusted to common carrier for carriage, it is not necessary for the plaintiff to prove any negligence or criminal act on the part of the transporter, his servants or agents. The fact of loss, damage or non-delivery of goods is itself a cause of action against the common carrier and the owner of the goods is entitled to a decree. Section 9 of the Carriers Act, 1865 reads as under :
"9. Plaintiff's, in suits for loss, damage or non-delivery, not required to prove negligence or criminal act.-- In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, 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 carrier, his servants, or agents."
12. In our considered opinion, on the facts found, the trial Judge was totally wrong in dismissing the suit and in ignoring the legal effect of the provisions of Sections 8 and 9 of the Carriers Act. In rejecting the plea of the transporter and in construing the provisions of Sections 8 and 9 in the manner aforesaid, we rely on a Division Bench decision of this Court in the case of Gwalior Transport Co. Ltd. v. National Insurance Co. Ltd., 1983 MPLJ 804 and a Single Bench decision of this Court in C.R. No. 464/97 (Associated Traders and Engineers Pvt. Ltd. v. Narendra Kumar & Co. shortnoted in 1978 MPLJ Note 5). In the decisions (supra) it has been held that in the event of loss, damage or non-delivery of goods entrusted to the common carrier, the suit can be founded on Section 8 of the Act itself by the owner without reference to any plea based on contract or tort because under Section 9 of the Act, the owner is absolved from the burden of proof of any negligence or criminal act on the part of common carrier.
13. On the basis of the document of subrogation (Ex. P/l), the insurance company has acquired right Under Section 69 of the Contract Act to raise claim based on pleas available to the consignor. The suit also has been filed jointly by the insurance company as the insurer and the consignee as the insured.
14. As a result of the aforesaid discussion, the appeal succeeds and is hereby allowed. The judgment and decree dismissing the suit passed by the trial Court dated 29-11-1994 is hereby set aside. The suit jointly filed by the appellant and respondent No. 1 is decreed in the sum of Rs. 1,06,600/- with interest at the rate of 6% per annum from the date of suit till realisation. The appellant shall also be entitled to full costs from respondent No. 2 as incurred in the Court below and in this Court. Counsel's fee as per schedule, if pre-certified.