The liability of a common carrier for loss and damage caused by negligence or misconduct cannot be limited by contract, and the burden of proof is on the carrier to establish that the loss was due to reasons beyond its control.

P. P. BOPANNA, J.

( 1 ) THIS appeal is directed against the judgment and decree of the trial Court in Original Suit No. 314/1974. The appellant who was the defendant before the trial Court was directed to pay a sum of Rs. 62, 141-97 with proportionate costs and current interest at 6 per cent per annum on the principal amount of Rs. 56,727-97 from the date of suit till the date of payment, to the 1st plaintiff and a further sum of Rs. 55,100/-with proportionate costs and current interest at 6 per cent per annum on Rs. 50,320/-being the principal amount, from the date of suit till the date of payment to the 2nd plaintiff and also, costs incurred by plaintiffs 1 and 2 amounting to Rs6279- 40 and Rs. 5788-75 respectively.

( 2 ) THE parties hereinafter be referred to by the position assigned to them in the trial Court.

( 3 ) PLAINTIFF No. 1 is Pfizer Limited Company and is the consignor of the goods in question to its branch office in Cochin. Plaintiff No. 2 is the Insurance Company and the goods in question had been insured by plaintiff No. 1 against transit risk with this Insurance Company. Originally, the insurance cover was taken on the Hanover Insurance Co. Ltd. , but at the time of filing of the suit, the 2nd plaintiff had taken over the Indian business of Hanover Insurance Co. Ltd. , and there is no dispute about the assignment of the rights of the first plaintiff under the policy of insurance to the 2nd plaintiff.

( 4 ) ADMITTEDLY, defendant is a public carrier, carrying on business as carriers at its registered office in Bangalore. The goods in question were consigned by the 1st plaintiff under a G. C. Note issued by the defendant to its branch office at Cochin sometime in the month of July, 1971. The goods consigned were harmless medicines, manufactured by the first plaintiff and the defendant as a common carrier had undertaken to deliver these goods safely from Bombay to the depot of the 1st plaintiff in Cochin, on payment of the requisite amount as freight.

( 5 ) THE case of the 1st plaintiff shortly stated is, that the defendant, as a common carrier, owed a duty to it to carry its goods safely and in good condition to its depot in Cochin, but, these goods were delivered on or about 22nd July 1971 in a damaged, deteriorated and soiled condition. Further, some of the contents of these goods were missing and thereby there was actual shortage in the quantities in the goods delivered to its depot. According to the 1st plaintiff, the defendant, its servants and agents failed to take the requisite care of the said goods as persons of ordinary prudence would have done in similar circumstances and by such carelessness, negligence, rashness and misconduct, the goods were delivered in a damaged, deteriorated and soiled condition. As a result, plaintiff-1 got the goods surveyed by their Official Surveyor, viz. , the standard Surveyors Corporation of Cochin on 25 and 26th of July, 1971 and obtained from them the necessary certificates in respect of each of the consignment, wherein, the nature and cause of the loss and damage to the goods had been indicated. The surveyors in their certificates had certified that the loss, damage, shortage and soiling of the goods was due to pilferage, carelessness and exposure to rain or foreign substances.

( 6 ) BASED on the Surveyor's report, the 1st plaintiff made a claim for damages assessed at Rs. 62,141-97 against the 2nd plaintiff and the 2nd plaintiff being the insurer of the goods in question settled the claim of the 1st plaintiff in terms Of the policy of Insurance in a sum of Rs. 50,320/ -. But, it is the case of the 1st plaintiff that the amount of damages claimed from the insurance Company. e. the 2nd plaintiff was without prejudice to its rights to claim the balance amount of damages from the defendant. In paragraph 14 of the plaint it is averred that the 2nd plaintiff settled the claim of the 1st plaintiff partially to the extent of Rs. 50,320/- as the value of the general insur

Click Here to Read the rest of this document