Madras High Court
Kerala Transport Company vs National Insurance Co. Limited And Anr. on 4 January, 2006
Equivalent citations: (2006)3MLJ46
Author: K. Mohan Ram
Bench: P.D. Dinakaran, K. Mohan Ram
ORDER K. Mohan Ram, J.
1. The unsuccessful defendant in O.S. No. 626 of 1985 on the file of the Sub-Court, Coimbatore is the appellant in the above appeal.
2. The suit in O.S. No. 626 of 1985 was filed by the respondents herein, against the appellant for grant of a decree against the appellant for a sum of Rs.93,919.80 with subsequent interest at 18% par annum from the date of the suit till the dale of realisation and for costs. The case of the plaintiff as set out in the plaint is as follows:
The first plaintiff is an Insurance Company and the second plaintiff is a manufacturer of sewing needles and other connected items having its registered office at Needle Industries Post, Nilgiris, Tamil Nadu. The defendant/appellant is a firm carrying on business as fleet owners and cargo movers having their head office at Calicut, Kerala State. On 22.11.1983, the second plaintiff/second respondent herein, under Invoice No. STD/113 dated 22.11.1983 despatched goods from Coonoor to their depot at New Delhi and entrusted the goods to the appellant, as per the invoice. The appellant agreed and undertook to transport the articles and issued a Lorry Receipt No. 1677360/43 dated 22.11.1983 to the second respondent. The respondents have stated that the appellant is the insurer of goods, as per the provisions of Carriers Act. The appellant ought to have delivered the goods at New Delhi. But due to the negligence of their servants or agents, the goods were not delivered to the consignee at New Delhi. It is also contended by the appellant/defendant that the said consignment entrusted to them by the second respondent and another consignment were transported by a truck from Dewas Naka to Ghaziabad and that the vehicle caught fire near Jaipur and in that, the truck and the goods loaded in the truck were burnt. The appellant issued a consolidated non-delivery certificate, dated 13.6.1984. The second respondent herein, made a claim on 19.6.1984 to the appellant to settle their claim and since the appellant refused to settle it, the second respondent claimed the value from the first respondent, as the goods were insured with the first respondent under an open policy No. 946/4400019 for the period 1.1.1983 to 31.12.1983.
3. It is further stated in the plaint that the first plaintiff thereupon got itself subrogated to all the rights of the second plaintiff in pursuance of the latter of subrogation executed at Coimbatore by the second respondent, dated 29.9.1984 and settled the claim of the second respondent by paying a sum of Rs.93,913.80, being the value of the goods and the freight charges.
4. It is further stated that on 22.10.1984 the first respondent sent a notice of demand to the appellant mentioning the above said facts requesting him to pay a sum of Rs.93,919.80. Though the appellant received that notice, he did not comply with the demand and hence the first respondent sent another notice on 10.8.1985. But the appellant, neither complied with that demand nor sent any reply. Therefore, the suit has been filed.
5. The second respondent had been made as second plaintiff, as a matter of abundant caution. The appellant contested the suit by filing a written statement inter alia contending as follows:
The appellant admitted the entrustment of goods by the second respondent. The appellant contended that as per Clause 20 of the Way Bill, Courts in Calicut alone have Jurisdiction to entertain and adjudicate upon any matter between the parties and hence the Court at Coimbatore has no jurisdiction to entertain the suit. The appellant admitted that they are the carriers of goods under the Carriers Act. The appellant contended that alter carrying the goods to Dewas Naka, they handed over the same to a hired truck owned by Shree Omprakash, 4061 Roshanarara Road, Delhi and the goods were transhipped from Dewas Naka by Truck No. CPO 8045 on 31.12.1983 for onward movement to the destination. But unfortunately, the truck caught fire near Kotputhly in between Jaipur and Delhi and all the consignment loaded in the vehicle were burnt and a complaint was given to the Parkgur police. As per the investigation made by the police, the fire was an accidental one, which destroyed the entire consignment including the truck and as per the hire payment advice the said Om Prakash alone is liable to pay damages if any, and hence he is also a necessary party to the suit. In effect, the appellant pleaded that the loss had been caused by 'Act of God and hence they are not liable to pay any damages.
6. On the above said pleadings, the Trial Court framed the following issues, namely:
(i) Whether the Court at Coimbatore has no jurisdiction to entertain the suit?
(ii) Whether the goods were destroyed due to negligence of the defendant ?
(iii) Whether the first plaintiff is entitled for the suit claim ? (iv) To what relief the parties are entitled to ?
During trial, an employee of the second respondent was examined as P.W. 1 and Exs. A-1 to A-12 were marked. On the side of the defendant/appellant, Thiru. Gopalan Nair, an employee of the defendant was examined as D.W. 1 and no documents were marked.
7. The Trial Court on a careful consideration of the oral and documentary evidence adduced in the case, decreed the suit as prayed for. Aggrieved by that, the defendant has filed the above appeal against the judgment and decree dated 27.9.1989 passed in O.S. No. 676 of 1985.
8. We heard the learned Counsel for the appellant and the respondents-were not represented by counsel. The learned Counsel appearing for the appellant made three submissions namely:
(i) The goods entrusted by the second respondent with the appellant for transportation was lost in the accidental fire, which burnt the truck as well as the goods and it was an 'Act of God' and hence they are not liable to pay any damages to the first respondent.
(ii) The learned Counsel also questioned the value of the goods transported and consequently submits that the Trial Court erred in granting a decree as prayed for.
(iii) The learned Counsel has also submitted that the Court at Coimbatore had no jurisdiction to entertain the suit in view of Clause 20 of the Way Bill.
9. We have considered the contentions carefully. Taking up the question relating to jurisdiction of the Coimbatore Court, it is to be seen that learned Counsel for the appellant was unable to substantiate that contention with documentary evidence. The Way Bill said to contain Clause 20 restricting the jurisdiction of Palghat Court is not before the Court and further the learned Counsel is unable to point out whether any part of the cause of action has arisen within the jurisdiction of the Court at Palghat. The learned Counsel concedes that Ex.A-7, Subrogation Letter was executed by the second respondent in favour of the first respondent at Coimbatore and the cause of action has arisen within the jurisdiction of Coimbatore Court. It is the settled principle of law that no Court within whose jurisdiction no a part of the cause of action has arisen can be conferred with jurisdiction. When admittedly no part of the cause of action has arisen, within the Court at Palghat, even if there is any agreement between the parties that will not confer any jurisdiction on the Court at Palghat. In this context, it will be useful to refer to a judgment of the Supreme Court in New Moga Transport Company v. United India Insurance Company Limited and Ors. , wherein the Apex Court has held as follows:
14. By a long series of decisions it has been held that where two Courts or more have jurisdiction under C.P.C. to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in any one of such Courts is not contrary to public policy and in no way contravenes Section 28 of the Indian Contract Act, 1872. Therefore, if on the facts of a given case more than one Court has jurisdiction, parties by their consent may limit the jurisdiction to one of the two Courts. But by an agreement parties cannot confer jurisdiction on a Court which otherwise does not have jurisdiction to deal with a matter.
Therefore, the decision of the Trial Court on this issue is perfectly correct and has rightly rejected the contention of the defendant.
10. The next contention of the counsel for the appellant is that the Trial Court erred in granting the decree as prayed for. This submission of the learned Counsel is not supported by any pleadings or evidence. In the written statement filed by the appellant, the value of the goods as claimed by the respondents in the plaint has not been disputed and hence the plea of the counsel for the appellant cannot be entertained.
11. The learned Counsel strenuously contented that in the accident the truck bearing No. CPO 8045 in which the goods were transported from Devas Naka for onward movement to the destination, unfortunately caught fire and all the consignments in it were burnt and destroyed. Immediately a complaint was given to Parkgur Police Station and as per the investigation report of the police, the fire was an accidental one and hence submits that it is an 'Act of God' and hence the appellant is not liable to pay any damages. Though, it is stated in the written statement that an immediate complaint was given to the police station, no copy of the complaint has been produced before the Court and there is absolutely no documentary evidence to show that the truck caught fire and in that the truck and the goods carried were burnt. In the absence of any acceptable evidence, the contention of the counsel for the appellant cannot be accepted. The Trial Court has rightly considered the oral evidence on record and rejected the contentions of the appellant and found that the plea of 'Act of God' is not established. This finding of the Trial Court cannot be faulted with.
12. The respondents have produced Ex.A-1 - the Invoice, Ex.A-2 - the Lorry Receipt issued by the appellant, Ex.A-3 - the Certificate issued by the Appellant for non-delivery, Ex.A-4 - the letter written by the second respondent to the appellant, Ex.A-5 - Postal Acknowledgement card and Ex.A-6 - the chart.
13. The respondents have also produced Ex.A-7, dated 29.7.1984, which is the subrogation letter execute by the second respondent in favour of the first respondent, after the second respondent had received the entire value of the goods and freight charges from the first respondent. A receipt, Ex.A-8 issued by the second respondent to the first respondent has also been produced. The notice issued by the second respondent to the appellant has been marked as Ex.A.9 and the postal acknowledgement is marked as Ex.A-10. After settling the claim of the second respondent, the first respondent had issued Ex.A-11 notice to the defendant and they have also produced Ex.A-12, Postal Acknowledgment. Having received the notice, the appellant had not dared to send any reply repudiating the claim of the first respondent. The abovesaid documentary evidence prove the fact of entrustment of goods by the second respondent with the appellant, the value of the goods entrusted, the fact of non-delivery of the goods, the claim made by the second respondent against the appellant, the demand made by the second respondent with the first respondent and the factum of settlement of the claim by the first respondent:
14. After receiving the value of the goods and freight charges, the second respondent had executed a letter of subrogation in favour of the first respondent and thereafter the first respondent had made a claim on the appellant, which the appellant had failed to comply with and hence the suit had been filed. All the necessary requirements as per law have been complied with and thereafter only the suit had been filed by the first respondent against the appellant.
15. Section 9 of the Carriers Act, 1865 reads as follows:
Plaintitfs, 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 including container, pallets or similar article of transport used to consolidate 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.
A reading of the Section clearly shows that common carriers are liable as insurers of goods and they are responsible for any injury caused to the goods delivered to them, however caused, except only by the 'Act of God' or action of alien enemies. There is no need for any proof of negligence and the defendant has to establish the exception. The burden of showing that the loss or damage that was caused to the property, was not owing to the negligence or criminal act of the carrier, his servants or agents, will be entirely on the carrier.
16. If we consider the plea of 'Act of God' put up by the appellant, in the light of the principles set out above, it is crystal clear that the appellant has not discharged the burden of showing that the loss or damage that was caused to the goods entrusted to it was not owing to the negligence or Criminal Act of the carrier, the servants or agents.
17. The Trial Court has considered this aspect and has clearly held that the appellant has not established its plea of 'Act of God' and has rightly rejected the same and decreed the suit as prayed for. The Trial Court relying on the judgment of this Court in Assam Bengal Roadways (P) Ltd. v. Hindustan Photo Films Manufacturing Co. Ltd. 1988 (1) LW 580, has rightly held that once the loss or damage or non-delivery of the goods is proved by the plaintiffs, the negligence or criminal act is presumed on the part of the carrier and then it becomes the duty of the common carrier to rebut the presumption. The onus of proving the negligence of the carrier is not upon the consignor and on the other hand the loss or damage to the goods is prima facie proof of negligence under Section 9 of the Carriers Act and burden of proof to the absence of negligence is thrown upon the common carrier.
18. Hence, we see no reason to interfere with the finding of the Trial Court. For the above said reasons, the above Appeal fails and the same is dismissed with costs.