Punjab-Haryana High Court
National Insurance Co. Ltd And Anr vs Goel Roadways on 10 November, 2014
RSA No. 805 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 805 of 2011 (O&M)
Date of Decision : 10.11.2014
National Insurance Co. Ltd. & another ....Appellants
Versus
Goel Roadways ....Respondent
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. Paul S. Saini, Advocate
for the appellants.
Mr. S.S. Behl, Advocate
for the respondent.
R.P. Nagrath, J.
This Regular Second Appeal (RSA) arises out of the concurrent dismissal of the suit of the appellants by the Courts below.
2. The respondent is a common carrier and appellant- plaintiff no. 2 admittedly handed over 140 packages of Cotton Yarn for carriage and delivery from Ludhiana to Bhiwandi in Rajasthan under consignment note/goods receipt no. 24128 dated 09.08.1991. The goods were not delivered at the destination and this is a case of total loss. The goods were insured with appellant-plaintiff no. 1 under a marine insurance policy and the loss was surveyed and assessor's report is dated 10.09.1991. According to the appellants, the good were not delivered because of negligence and wrongful JITENDER KUMAR 2014.12.05 10:19 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 805 of 2011 -2- acts on the part of the respondent. However, the version of the respondent-defendant was that it was not negligent in handling the goods because the truck alongwith the goods was burnt in transit, by the enemies of the State i.e. miscreants who put the vehicle and the goods on fire. An FIR was also registered at the concerned police station for the said incident.
3. For bringing the suit within limitation, the appellants stated that the claim was lodged with the respondent on 31.08.1991 by sending a registered notice; on 06.09.1991 when the respondent issued non-delivery certificate; 24.10.1991 when appellant no. 1 paid the amount of loss to appellant no. 2 and on 28.10.1991, when appellant no. 2 passed on the right of recovery of the amount of loss/damage by a letter of subrogation. Suit was filed on 21.10.1991 which was thus stated to be within limitation.
4. Appellants also filed replication. Learned trial Court framed the following issues from above pleadings of the parties:-
1. Whether the suit is time barred? OPD
2. Whether the suit is filed by competent person?
OPP
3. Whether the suit is properly valued for the purpose of court fee? OPP
4. Whether the suit is bad by the principles of estoppel, waiver and acquiescence? OPD
5. Whether the goods were booked at owner's risk? If so, its effect? OPD JITENDER KUMAR 2014.12.05 10:19 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 805 of 2011 -3-
6. Whether plaintiff no. 2 has got no authority to execute the special power of attorney and letter of subrogation in favour of plaintiff no. 1? OPD
7. Whether this Court has no jurisdiction to entertain and try the suit? OPD
8. Whether the suit is bad as the value of the goods have been exaggerated? OPD
9. Whether the plaintiff is entitled to recover ` 4,89,272? OPD
10. Whether the suit is bad for want of legal and valid notice? OPD
11. Relief.
5. The challenge in the instant appeal is to the findings of the Courts below on issues no. 1, 9 and 10 as rest of the issues were decided against the respondent. Learned counsel for the appellants has proposed following substantial questions of law:-
1. Whether the suit for recovery having been filed on 21.10.1994 was well within the period of limitation?
2. Whether the loss to the consignment is the presumptive proof of gross negligence on the part of the carriers which is to be disproved by the carriers?
3. Whether the burden to prove that there was no negligence on the part of the carrier in transit is upon the carriers under Section 9 of the Carriers JITENDER KUMAR 2014.12.05 10:19 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 805 of 2011 -4- Act, 1865?
4. Whether the issuance of a non-delivery certificate by the carriers is deemed to be a sufficient compliance of the provisions of Section 10 of the Carriers Act regarding service of notice upon the carriers?
5. Whether the impugned judgment and decree passed by the learned trial Court as also the first appellate Court deserved to be set aside being wholly illegal, arbitrary, against the record?
6. I have heard learned counsel for the parties, perused the judgments of both the Courts below and the paper-book.
7. I am of the considered view that the Courts below were quite right in holding that the cause of action to the appellants arose just about 4 or 5 days from 09.08.1991 when the goods were consigned for delivery to the consignee. The cause of action at least definitely arose on 06.09.1991, when the respondent issued certificate of non-delivery of the goods. Therefore, the suit instituted on 21.10.1994 was clearly beyond the period of three years therefrom.
8. The appellants are not justified in contending that the cause of action would arise from the date of issuance of letter of subrogation on 28.10.1991 by appellant no. 2 in favour of appellant no. 1-insurance company. The respondent in its evidence proved documents, Ex. D-3 to Ex. D6, of other consignments in support of JITENDER KUMAR 2014.12.05 10:19 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 805 of 2011 -5- the contention that normal period of delivery of goods from Ludhiana to the place of destination is 5 to 6 days.
9. Articles 10 and 11 of the Schedule to the Limitation Act, 1963 are attracted in such cases. The period of limitation for filing of suit against a carrier for compensation for losing or injuring the goods is three years when the loss or injury occurs and under Article 11 the period of limitation for filing of a suit against a carrier for compensation for non-delivery of, or delay in delivering goods is three years when goods ought to be delivered. The consistent finding of fact by both the courts below on the aforesaid issue is based on evidence and there is no scope of interference on the issue. The above finding is enough for upholding the judgments of the courts below.
10. On issue no. 9, learned counsel for the petitioner vehemently contended that onus to prove that there was no negligence nor mishandling of the goods during transit, is upon the carrier as per Section 9 of the Carriers Act, 1865, which reads as under:-
9. Plaintiffs, 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 JITENDER KUMAR 2014.12.05 10:19 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 805 of 2011 -6- act of the carrier, his servants, or agents.
11. The respondent has discharged the onus that lay upon it for which there is no evidence to the contrary. Baljinder Singh DW-1, a witness of the defendant-respondent testified that when the truck reached Noka Mandi in Rajasthan, some miscreants attacked the truck and put the same on fire. FIR lodged at the concerned police station is Ex. D-1. Even the surveyor of appellant no. 1 prepared the report Ex. D-2. The trial Court has rightly observed that appellant no. 1 itself got the loss surveyed but strangely they did not rely upon the surveyor's report. In the report of surveyor it was observed that some miscreants set the consignment loaded in truck on fire besides beating the driver of truck and breaking the wind screen and damaged the entire front portion. It was also observed that in the relevant column of the report, it was stated that the police confirmed that the incident of fire was caused by some miscreants. It is not only the 'Act of God' but also the 'Act of Enemies' of the State which can save the carrier as per the terms and conditions of the policy. Learned trial Court observed as under:-
"............................In Patel Roadways Ltd. vs. Birla Yamaha Ltd., 200 SAR (Civil) 485 the Hon'ble Supreme Court of India has held that it is absolute liability of the carrier which is subject to two exceptions an act of god and a special contract, which the carrier may choose or enter with the customer. A rule negligence is not to be presumed, it is rather to be presumed that ordinary care JITENDER KUMAR 2014.12.05 10:19 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 805 of 2011 -7- has been used. Conclusive presumption would be that the carrier has been guilty of negligence unless he can show that loss or damage was occasioned by what is technically called 'act of God' or by 'Kings enemies'. Liability in the general sense of common carrier under the Carriers Act is that of an insurer."
12. The case law has been properly discussed by both the Courts below and no other authority has been referred to come to a different conclusion.
13. With regard to the finding on issue no. 10, it was an admitted case that no notice was issued under Section 10 of the Carriers Act, 1865 by the appellant before filing the suit for recovery. The appellate Court discussed the contention of the parties on the issue and observed as under:-
".............The learned counsel for the respondent has relied upon AIR 19997 (SC) 1923, P. Rama Rao vs. P. Nirmala and others, that notice u/s 10 is required to be issued by Insurance Company within limitation prescribed. He has also relied upon AIR 1988 Bombay 269 in case titled as Sharma Goods Transport Wardha vs. Vidarbha Weavers Central Cooperative Society Ltd. Nagpur, in which it has been held by Hon'ble High Court that it is absolutely obligatory on the part of the plaintiff in a suit for compensation for loss of goods to give a prior notice as required u/s 10 of the Carriers Act JITENDER KUMAR 2014.12.05 10:19 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 805 of 2011 -8- even in the event of non-delivery of goods. According to Section 10 of the Carrier Act a notice in writing of the loss or injury has to be given to the common carrier within six months from the time when the loss or injury came to the knowledge of the plaintiff before filing the suit for recovery. Whereas no notice u/s 10 of Carriers Act has been given in the present case which is mandatory in nature. As such, findings of issue no. 10 are also hereby, affirmed."
14. In the grounds of appeal, it was asserted that the legal notice dated 31.08.1991 was sent to the respondent through registered post for which postal receipts were referred as Mark F and Mark G but it is not reiterated that the said notice was proved on the file. Even one of the substantial question posed is that issuance of non-delivery certificate is sufficient compliance of Section 10 of the Carriers Act, 1865, which cannot be possibly accepted in view of the case law as discussed by the lower appellate Court.
15. The findings of fact on the above material issues in the case is on the proper appreciation of evidence by both the Courts below and there is no scope of interference unless it is shown that some evidence was ignored or misread. No substantial question of law arises. The instant appeal is dismissed.
November 10, 2014 ( R.P. NAGRATH )
jk JUDGE
JITENDER KUMAR
2014.12.05 10:19
I attest to the accuracy and
authenticity of this document
Chandigarh