Back
2017 Supreme(Ker) 144
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. CHITAMBARESH & ANIL K. NARENDRAN, JJ.
KERALA TRANSPORT COMPANY (REGD) AND OTHERS – APPELLANTS
Versus
THE ORIENTAL INSURANCE COMPANY LTD. AND OTHERS – RESPONDENTS
A.S. No. 586 of 1997
Decided On : 04-01-2017
For the Appellant : ADVS. SRI. V.V. ASOKAN, SMT. JIJIMOL J. VADAKKEN, SRI. K.I. MAYANKUTTY MATHER
For the Respondent: ADV. SRI GEORGE CHERIAN
The main legal point established in the judgment is the interpretation and application of the Carriers Act, 1865 and Section 3 of the Interest Act, 1978 in determining liability for damages and the rate of interest to be awarded.
Headnote:
Carriers Act - Damages - Interest Act, 1978 - [Carriers Act, 1865] - [Section 3 of the Interest Act, 1978] - The court discussed the Carriers Act, 1865 and Section 3 of the Interest Act, 1978. The key legal provisions were interpreted to determine the liability of the defendants for damages and the rate of interest to be awarded. The court's decision was influenced by the interpretation of these acts and sections, leading to the award of damages and modification of the interest rate.
Fact of the Case:
The plaintiffs filed a suit to recover damages from the defendants for the negligent transportation of goods resulting in short delivery and damage. The trial court found the defendants liable and decreed the suit in favor of the plaintiffs.
Finding of the Court:
The trial court found the defendants liable for short delivery and damage of goods based on evidence and issued a decree in favor of the plaintiffs. The defendants appealed the judgment.
Issues: The main issues were the liability of the defendants for damages and the rate of interest to be awarded to the plaintiffs.
Ratio Decidendi: The court upheld the trial court's finding of liability and decree in favor of the plaintiffs. It also modified the rate of interest awarded by the trial court.
Final Decision: The appeal suit was disposed of, confirming the trial court's judgment and decree, with a modification in the rate of interest. No costs were awarded.
ANIL K. NARENDRAN, J.
The appellants are the defendants in O.S.No.98/1991 on the file of the Subordinate Judge's Court, Alappuzha, a suit filed by the respondents herein to realise a sum of Rs.1,39,054/- as damages from the defendants jointly and severally, together with interest thereon at the rate of 12% per annum from the date of suit till realization.
2. Going by the plaint averments, on 11.4.1988 the 2nd plaintiff entrusted the defendants, vide Ext.A1 lorry receipt, 1,145.31 kgs of texturised filament yarn in 25 cartons, valued at Rs.1,66,070/- to be transported from Bhiwandi at Mumbai to Alappuzha for delivery to the 2nd plaintiff. The texturised filament yarn was wound on reels, which were covered with polythene sheets, and then packed in paper cartons. By the time the goods reached its destination on 20.4.1988, the consignment was badly damaged due to the negligence of the defendants. The 1st defendant is a common carrier under the Carriers Act, 1865 and the 2nd defendant is its Branch Office at Alappuzha. The 3rd defendant is the Managing Partner of the 1st defendant. The 2nd plaintiff by Ext.A3 letter dated 22.4.1988 requested the defendants to have open delivery of the consignment since the cartons were found opened and the goods were in damaged condition. Ext.A3 letter followed by Ext.A4 letter dated 25.4.1998 informing the defendants about short delivery of 146.64 Kgs.
3. On 22.4.1988 and 23.4.1988 survey was conducted by PW2, a Chartered Engineer cum Surveyor and Loss Assessor, who submitted Ext.A8 survey report dated 1.6.1988, accessing the loss occurred due to short delivery and damage of the consignment at Rs.1,66,069.95/- and the salvage value at Rs.36,200/-. In the survey it was found that, out of 1,145.31 kgs of yarn entrusted to the defendants at Mumbai, only 998.63 kgs reached its destination. Hence, there was short delivery of 114.68 kgs of yarn. Further, in respect of 998.63 kgs of yarn received, all the reels were found damaged with oil stains and dirt. Most of the reels were found soaked in water, which could not be used for the purpose for which it was intended. Ext.A9 series are the photographs of the consignment taken at the time of survey.
4. On 22.4.1988, the defendants issued Ext.A5 open delivery certificate admitting short delivery of 146.7 kgs of yarn and the damage caused to 998.63 kgs in 25 cartons. The 2nd plaintiff by Ext.A6 letter dated 26.4.1988 claimed Rs.1,66,066/- from the defendants being the value of the goods lost and damaged in transit. Though the 2nd defendant acknowledged the said letter on 28.4.1988 vide Ext.A7, the defendants failed to settle the claim. The consignment in question was insured with the 1st plaintiff insurer. Since the defendants did not settle the claim, the 2nd plaintiff in turn claimed the said amount from the insurer vide Ext.A11 claim bill. The 1st plaintiff settled the claim made by disbursing a sum of Rs.1,39,054/- on 1.9.1988, which the 2nd plaintiff acknowledged vide Ext.A12 voucher. Pursuant to such payment, the 1st plaintiff obtained Ext.A14 letter of subrogation and Ext.A15 power of attorney from the 2nd plaintiff on 29.8.1988, to recover the said amount from the defendants.
5. The plaintiffs through Ext.A16 lawyer notice dated 22.2.1989 called upon the 2nd defendant to pay a sum of Rs.1,39,054/- together with interest. To Ext.A16 notice, the Assistant Manager, Claims Section of the 1st defendant issued Ext.A17 reply dated 27.3.1989 stating that Ext.A16 notice has been entrusted to their counsel and the plaintiff would get a reply shortly and that as per Ext.B1 open delivery certificate dated 22.4.1988 the net claim is only Rs.21,269.80/-. The 3rd defendant has also sent Ext.A18 reply dated 10.6.1989 which contains only vague denial of short delivery/damage of the consignment. Thereafter, the 1st plaintiff caused to issue Ext.A19 reply dated 29.7.1989 through its lawyer, which was followed by Ext.A20 lawyer notice dated 12.1.1990 to the 3rd defe
