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IN THE HIGH COURT OF GAUHATI
N. Chaudhury, J.
National Insurance Company Ltd. & Anr. - Appellants
Versus
Arunachal Carrying Corporation & Anr. - Respondents
RFA No. 104 of 2004
Decided On : 26-06-2015
For the Appellants : K.K. Bhatra.
For the Respondents: Z. Mukit.
Headnote:
Carriers Act - Sections 10,9, 8 , 3 - Partnership Act - Section 69 - Code of Civil Procedure Order 30, Rule 1 - Section 35-A - Claim of compensation - Claim for loss on account of damage – Decree - Money Suit - Judgment and decree learned Civil Judge No. 3, at Guwahati dismissed Money Suit No. of his Court holding that defendants - Common carrier is not liable to make payment of any compensation to plaintiffs against short delivery - Judgment has been brought under challenge in present appeal by plaintiffs - National Insurance Company Ltd. and M/S Wine Word, as plaintiff No. 1 and plaintiff No. 2, instituted Money Suit No. in court of learned Civil Judge of from defendants Carrying Corporation - Pleaded story of plaintiffs is that plaintiff No. 1 is a Public Sector Undertaking engaged in business of insurance including marine policy and plaintiff No. 2 is a firm who purchased a cargo/inland transit policy being by declaration from plaintiff No. 1 - Policy was purchased in respect of a consignment - Plaintiff No. 2 executed a letter of subrogation to plaintiff No. 1 for filing suit against defendants, common carrier having its head office at and branch office in State - Plaintiff No. 2 booked one consignment of cases/packages containing IMMF liquor in bottles covered by invoice No. 328 for safe carriage under consignment Note– Held, Case defendants had not led any evidence at all - But plaintiffs having proved Exhibit-10 and Exhibit-11 fact as to occurrence of accident and absence of foul play on part of driver stood ruled out - Police report Exhibit-10 shows that accident had taken place due to sudden jamming of rear right wheel of truck and enquiry did not reveal any foul play on part of driver - Plaintiffs themselves have disclosed these facts in their own evidence there is no scope to hold that findings of learned trial court on this count are erroneous or baseless - Transport Company reported in AIR it is held that when damage to goods takes place due to accident for bursting of tyre of vehicle, it is not a negligent act of driver and it cannot be said that carrier did not take proper care in maintaining vehicle - Claim for loss on account of damage was found to be not maintainable by Honble High Court in that case - Case in hand as per evidence of plaintiffs accident had taken place due to sudden jamming of right rear wheel of the truck - Wherein there was no foul play on part of the driver - Cannot be held liable under Section 8 of Act for damage caused due to such accident - Learned trial court has not committed any error in passing judgment - Appeal stands dismissed
N. Chaudhury, J.
By judgment and decree dated 25.03.2004, the learned Civil Judge (Sr. Division.) No. 3, Kamrup at Guwahati dismissed Money Suit No. 274 of 1998 of his Court holding that the defendants, a common carrier is not liable to make payment of any compensation to the plaintiffs against short delivery. This judgment has been brought under challenge in the present appeal by the plaintiffs.
2. National Insurance Company Ltd. and M/S Wine Word, as plaintiff No. 1 and plaintiff No. 2, instituted Money Suit No. 274 of 1998 in the court of learned Civil Judge (Senior Division) No. 1 at Guwahati for realisation of Rs. 7,29,024/- from the defendants, Arunachal Carrying Corporation. The pleaded story of the plaintiffs is that plaintiff No. 1 is a Public Sector Undertaking engaged in business of insurance including marine policy and plaintiff No. 2 is a firm who purchased a cargo/inland transit policy being No. 200301/4400061/96 by declaration dated 10.02.1996 from the plaintiff No. 1. This policy was purchased in respect of a consignment. The plaintiff No. 2 executed a letter of subrogation to the plaintiff No. 1 for filing suit against defendants, the common carrier having its head office at Guwahati and branch office at Itanagar and at Khonsa in the State of Arunachal Pradesh. The plaintiff No. 2 booked one consignment of 645 cases/packages containing IMMF liquor in bottles covered by invoice No. 328 dated 09.02.1996 at Itanagar for safe carriage to Khonsa under consignment Note No. 101003 dated 10.02.1996 and the same was carried in truck No. AR-01-1175. The defendants failed to deliver the consignment in good condition and most of them were found broken at the time of delivery. The extent of damage caused to the said consignment was assessed by holding survey on 16.02.1996 at the 'accident spot at Gaurisagar'. The defendant No.1 allegedly issued damage/breakage certificate at the destination station. According to the plaintiffs, the damage/loss was caused to the suit consignment in transit due to negligence of the defendants. The plaintiff No. 2 made claim to the defendant No. 2 vide registered letter dated 11.03.1996 which is a notice under Section 10 of the Carriers Act. But even after receipt of the letter, the defendants did not make payment to the plaintiff No. 2 for which plaintiff No. 1 as insurer paid Rs.7,29,024/- to the plaintiff No. 2 and thus, defendants are liable to make payment of the said amount to the plaintiff No. 1. The suit, therefore, was filed praying for realisation of Rs. 7,29,024/- against the defendants jointly and severally and also for interest pendente lite.
3. Upon receipt of the summons, the defendants appeared and submitted a written statement contesting the suit both on the point of maintainability as well as on merit. According to the defendants, the suit of the plaintiffs is barred by limitation, that the suit is devoid of any cause of action, that the suit is bad for non-joinder of driver of the vehicle as well as insurer of truck No. AR-01-1175 etc. In paragraph-6 of the written statement, an objection was also taken on the point that the suit is bad for non-compliance of the provision of the Carriers Act as well as other law of the land. In paragraph-9 of the written statement, the defendants disclosed that the defendants are a proprietorial concern of one Damodar Prasad Agarwala. On merit, the defendants denied correctness as to issuance of damage certificate on 16.02.1996 in respect of subject consignment. The defendants denied that goods were damaged during transit when under custody of defendant No.1 and that the consignment was booked at the risk of the owner. The defendants specifically denied the allegation of negligence on their part and denied to have received notice under Section 10 of the Carriers Act. The defendants denied liability of making any payment to the plaintiffs and prayed for dismissal of the suit with exemplary cost Under Section 35-A of the Code
