Madras High Court
New Howrah Transport Company vs Metal Box India Ltd. And Anr. on 30 January, 2004
Equivalent citations: AIR2004MAD294, AIR 2004 MADRAS 294
Author: V. Kanagaraj
Bench: V. Kanagaraj
JUDGMENT V. Kanagaraj, J.
1. The defendant before the Court below is the appellant herein.
2. The respondents herein have filed the suit before the Court below praying for a decree for recovery of a sum of Rs. 43,518.77 with interest at 9% per annum from the date of the suit till payment and for costs on averments such as that the first plaintiff's Calcutta Officer despatched imported tin plates to their Madras Office by means of stock transfer under the Current Account Advice No. 5/5936 dated 5-8-1982, the value of which is Rs. 2,00,475.45 only; that under the said stock transfer vide challan No. 25458 and 25461 of 3-7-82, 21024 sheets measuring 81 x 665 x 22 mm were entrusted to the defendant carrier for safe carriage and delivery at Madras; that the defendant carrier accepted such entrustment from the first plaintiff on 30-7-1982 and issued their consignment notice dated 30-7-1982 thereby undertaking to carry those 21024 sheets packed in 6 skids; when the vehicle carrying the consignment in question bearing No. ADP 909 arrived at Madras on 7-8-1982, the consignment was found extensively damaged and the Madras office of the defendant carrier issued a certificate of damage dated 30-8-82, confirming the damage sustained by the 7427 sheets weighing 7454 kgs., as a result of an alleged accident sustained by the vehicle carrying the consignment; that the consignment was extensively surveyed by the independent surveyors M/s. Standard Surveyors Private Limited who issued their survey report No. 491 of 1982, wherein they have recorded the total loss sustained by the first plaintiff amounting Rs. 43,518.77, which according to the plaintiffs as a result of failure on the part of the defendant carrier to discharge their statutory obligation as common carrier for reward; that on 7-8-1982, the first plaintiff issued a notice of loss, which was served on the defendant on 9-8-1982 and thereafter on 12-8-1982, notified the extent of damage sustained by the suit consignment; that on 30-8-1982, the first plaintiff-demanded compensation by submitting their figured claim after giving credit to the salvage value by enclosing their bill, in spite of which, the defendant carrier neglected to satisfy the demand.
3. The further case of the plaintiff is that the defendant carrier neglected to discharge their statutory obligation as governed by the carriers Act 1865 and also liable to make good the loss sustained by the first plaintiff; that the suit consignment was insured with the second plaintiff and as a result of payment of indemnity, the first plaintiff executed a letter of subrogation in favour of the second plaintiff; that by virtue of the provisions of the Marine insurance Act and by virtue of the letter of subrogation executed in favour of the second plaintiff, the second plaintiff is entitled to file the suit; that subsequently, the plaintiffs' recovery agents lodged a claim with the defendant carrier by their letter dated 12-1-1985, in spite of which, the defendant carrier has failed to satisfy the claim and hence the suit for the relief extracted supra.
4. In the written statement filed by the defendant, besides denying all the averments made in the plaint, it would specifically be submitted that under clause 18 of the terms and conditions of the contract entered into between parties at Calcutta on 30-7-1982, the Court in Delhi alone shall have the jurisdiction to try the suit, as per the decisions laid down by the Supreme Court; that as the contract was entered into between the defendants and the consignor and the consignment note was handed over to the consignor and the consignor is also consignee in this matter, thus the first plaintiff is bound by the contract and no signature of the consignor is required, as the entrustment of the goods was admitted by the first plaintiff; that the defendant would deny that they have not discharged their statutory obligations as a common carrier for reward; that the accident has occurred beyond their control and without any negligence on their part; that the plaintiffs are bound by Clause 5 of the terms and conditions.
5. The defendant would further submit that the report of the surveyor is not correct and the goods have not been properly surveyed; that the goods alleged to have been carried by the defendant, is imported Japanese black plates and even the damaged plates would fetch more value than the cost price as the same is useable and marketable due to its nature and characteristics; that the consignment was transported at owner's risk; that the survey has not been conducted properly in the presence of the defendant and hence they are not liable to pay any amount and the suit is liable to be dismissed with costs.
6. The trial Court, on the above pleadings of parties, would frame the following issues for consideration of the questions involved in the suit :--
1. Whether the trial Court has no territorial jurisdiction to entertain the suit?
2. Has the plaint not been signed by the person authorised to sign on behalf of the plaintiff and is liable to be dismissed?
3. Are the defendants not liable as per Clause 5 of the terms and conditions, as the damage was due to accident beyond the control of the defendant?
4. Is the survey report correct?
5. Would the damaged goods fetch more money and the plaintiffs have not suffered loss?
6. Was the consignment carried at owners risk and the accident occurred beyond the control of the defendant?
7. Are the plaintiffs entitled to damages and if so, to what amount?
8. To what relief, if any, are the plaintiffs entitled?
Additional Issue :--
1. Whether the goods are covered under any insurance policy issued by the second defendant?
7. During trial, the plaintiffs have not only examined two witnesses for oral evidence as P.Ws. 1 and 2, but also have marked 13 documents for documentary evidence as Exs. A. 1 to A. 13. Likewise, on the part of the defendant, one witness would be examined as D. W. 1 for oral evidence and they would mark six documents as Exs. B. 1 to B 6 and in consideration of the above oral and documentary evidence and appreciating the same issue-wise, the trial Court, on such appreciation of the facts and circumstances and the position of law encircling the whole case, would ultimately arrive at the conclusion to decree the suit with costs and decided accordingly. It is only aggrieved against this judgment and decree passed by the trial Court, the unsuccessful defendant has come forward to prefer this appeal suit on certain grounds as brought forth in the grounds of appeal.
8. During arguments, learned counsel appearing on behalf of the appellant citing a judgment (Patel Roadways Limited v. Prasad Trading Company) in the context of Ex. A. 2 lorry receipt dated 30-7-1982, which has been issued by the defendant in favour of the first plaintiff at his Madras office, wherein it is held by the Full Bench of the Apex Court regarding the territorial jurisdiction of a Civil Court in a suit for damages against the Corporation, in the following manner (para 13) :--
"Where the Corporation has a subordinate office in the place where the cause of action arises, it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. It would be a great hardship if, in spite of the Corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings), such plaintiff is to be compelled to travel to the place where the Corporation has its principal place. That place should be convenient to the plaintiff; and since the Corporation has an office at such place, it will also be under no disadvantage. Thus the Explanation provides an alternative locus for the Corporation's place of business, not an additional one."
Learned counsel would lament that the reason for acquiring jurisdiction was not at all stated nor any notice issued to the appellant prior to the institution of the suit.
9. Citing Ex. A. 7, the damage certificate issued by the defendant, the learned counsel would point out that it is admitted therein that damage has been caused to the extent of 7427 steel plates and the surveyor, in his estimate in Ex. A. 8 survey report, would assess that the damage is only 7427 with a difference of 5 sheets in number. The learned counsel would further point out that the insurance certificate has not been produced by the other side and they caused production of a letter of subrogation in Ex. A. 11. The learned-counsel would lay emphasis on Section 10 of the Carriers Act, wherein the carriers must be given notice of the survey report and that has not been caused in this case. According to the learned counsel, the main three points involved in this case are that the jurisdiction, the survey report and the letter of subrogation and these three aspects have not been properly taken care of by the lower Court. Ultimately, the learned counsel would also find that the plaintiffs have faulted legally and that the interest awarded by the lower Court is too much and would pray to allow the appeal setting aside the judgment and decree of the lower Court.
10. In reply, the learned counsel appearing on behalf of the respondents would submit that so far as the subject of jurisdiction dealt with on the part of the other side is concerned, pointing out from Ex. A. 7 wherein it has been glaringly given as one of the conditions that wherever the accident occurs, the jurisdiction would arise only at Delhi, wherein the Head Office of the defendant was located, and therefore, entertaining of the case by the lower Court is without jurisdiction, for which there is no sanction at all. Learned counsel would point out that It is not the appellant, who could decide the jurisdiction, but the jurisdiction is decided in consideration of various aspects such as the place at which the contract is entered into, the place at which the property got damaged in transit or the place of destination wherein the damaged articles have been received by the consignee and the place at which the subrogation letter was given, etc. and therefore, the lower Court has not only rightly framed issue No. 1 itself on the point of jurisdiction, but also having had its own discussions, had rightly arrived at the conclusion that it has jurisdiction to entertain the suit and try the same, and therefore, it cannot be said that it is a case that has been tried by the trial Court, out of jurisdiction or without jurisdiction.
11. Learned counsel would also submit that though notice could be issued, the suit cannot suffer on account of the non-issuance of the notice of survey report and would cite a judgment reported in (2001) 1-Mad L.W. 301 (United India Insurance Co. Ltd. v. Economic Roadways Corporation) rendered by one of us (N. V. Balasubramanian, J.) in another Appeal Suit No. 960 of 2000 wherein such contentions raised on the part of the appellant herein have not been admitted by the learned Judge in the said suit and in fact, the judgment of the lower court was reversed by the High Court in that case, casting the burden on the common carrier as held in para. No. 11 of the said judgment in the following manner :--
"A bare reading of the provisions of Section 9 of the Carriers Act clearly shows that there is no duty cast on the first consignor plaintiff to prove the negligence against a common carrier for the loss or damage and it is not necessary for the first plaintiff to prove that the loss or damage or non delivery was due to the negligence or criminal act of the carrier, his servants or agents. In other words, it casts a burden on the common carrier to prove that it was not due to its negligence, but it was due to the act of God, the loss had occurred."
12. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what could be assessed by this Court is that the case in O. S. No. 7571 of 1985 has been filed before the lower court by the respondents herein praying for a decree for recovery of a sum of Rs. 43.518.77 with interest at 9% per annum from the date of the suit till payment and for costs on such pleadings extracted supra in the foregoing paragraphs for the damage caused to the consignments despatched from Calcutta, the imported tin plates, to their Madras office by means of stock transfer under the current account advice dated 5-8-1982, the value of which was Rs. 2,00,475.45; that from out of the total number of 21024 sheets, damage has been caused to 7427 sheets weighing 7454 Kgs. and in fact the case of the plaintiffs is that since the defendant carrier itself having assessed the extent of damage confirming the same as on 30-8-1982, the consignment was extensively surveyed by the independent survey ors M/s Standard Surveyors Private Limited, who issued their survey report almost confirming the extent of damage certified by the defendant himself amounting to Rs. 43,518.77, which according to the plaintiffs, has occurred as a result of failure on the part of the defendant carrier to discharge their statutory obligation as a common carrier for reward, and therefore, issuing the notice of loss which was served on the defendant on 9-8-1982 and 12-8-1982 in which the first plaintiff has demanded compensation submitting their claim with all necessary papers and since the defendant carrier neglected to satisfy the demand, the plaintiffs were left with no choice but to file the suit for damages and for compensation of the said amount with interest and costs. On the part of the defendant carrier, they would take the stand that the lower court had no jurisdiction to try the suit; that there was no notice regarding the survey report and that the subrogation had not been properly executed.
13. Besides these, some other objections would also be raised on the part of the defendant such as that the plaint had not been signed by the authorised signatory; that damage to the consignment was caused by the Act of God which was beyond the control of the defendant; that the consignment was not insured with the second plaintiff. The lower court has not only framed nine issues regarding all the questions involved in the suit, both factual and legal, but also discussing the oral and documentary evidence issuewise and in full appreciation of the evidence placed on record, would ultimately decree the suit as prayed for and it is only aggrieved against this judgment and decree, the defendant in the suit has come forward to prefer the above appeal suit on certain grounds as brought forth in the grounds of appeal and in the arguments in which the learned counsel would lay emphasis on the three main points i.e., the non-jurisdiction of the lower Court, the non-issuance of the notice on the survey report filed by the common surveyor and that the letter of subrogation has not been properly issued at the time and place alleged.
14. From out of these three aspects, regarding jurisdiction and survey report, elaborate discussions have been held by the lower Court and since the point of letter of subrogation has not been raised before the lower Court, it has not taken it for consideration, but however, a perusal of the letter of subrogation would only show that it has been properly and validly issued, and therefore, on account of this, the suit shall not fail. This Court is also able to see that the jurisdiction point has been properly dealt with by the lower Court so as to arrive at the valid conclusions to the effect that it has jurisdiction to try the suit in hand and regarding not only the conclusions arrived at, but also the manner in which the discussions have been held and the decision has been arrived at on the point of jurisdiction, this Court is in perfect agreement with the findings of the lower Court.
15. So far as the notice which is sought to have been issued by the plaintiff on the survey report to the defendant is concerned, though it would be very strongly argued on the part of the plaintiff that no such notice need be necessary nor even if one is contemplated, it is not mandatory, on account of which, the suit will not get affected in any manner to its pleadings and prayer. However, this Court feels that though not mandatory, a notice of such survey should have been issued to the defendant, but in the case in hand, since the defendant himself did not raise this point before the lower Court so as to give due opportunity for the other side to meet the point and for the lower Court to have its own discussion and decision, the same has not been taken up for consideration, and therefore, having failed to exhaust this remedy at the lower Court, the defendant cannot raise the same before this appellate Court anew.
16. So far as the letter of subrogation is concerned, it has not only been approve by the lower Court, but also taken up for proper consideration as a result of which, the lower Court has arrived at the conclusion to decree the suit, on a careful perusal of the said letter marked as Ex. A. 11, and therefore, this Court is not able to find any inconsistency or infirmity or illegality attached to the same and hence at this score also, the case put up by the appellant cannot be accepted.
17. On a overall consideration of the facts and circumstances encircling the whole affair connected to the suit filed by the respondents claiming damages with interest at the rate of 9% per annum and costs, the lower Court has not only framed proper issues, but also having given due opportunity for both parties to record their evidence and on such evidence being recorded as extracted supra, in appreciation of the same issue-wise, thus meeting with all the requirements of law, valid conclusions have been arrived at and it is not only the conclusions arrived at by the lower Court in decreeing the suit as prayed for, but also the manner in which the same have been arrived at are beyond question. However, this Court would feel that so far as it is concerned with the interest of 9% per annum having been granted by the lower Court as prayed for on the part of the respondents/plaintiffs, is somewhat on the higher side, and therefore, this Court is of the view to lessen the rate of interest and in its considered view, instead of an interest of 9% per annum, it could be reduced to 6% per annum, which would meet the ends of justice and excepting this modification regarding the rate of interest, in all other respects, the above appeal suit shall only fail and the same is decided accordingly.
In result, subject to the modification of the rate of interest as observed in the preceding paragraph, the above appeal suit is without merit and the same is dismissed, confirming the judgment and decree dated 26-11-1987 made in O. S. No. 7571 of 1985 by the Court of I Assistant City Civil Judge, Chennai.
However, in the circumstances of the case, there shall be no order as to costs.