An Insurance Company as a subrogee and a consignee can maintain a suit for recovery of loss and damages. The burden of proving the quantum of damages lies with the plaintiffs.

P. Krishnamoorthy, J.

1. This appeal is by the defendant, a common carrier, in a suit for recovery of loss and damages to the extent of Rs. 9511/- with interest at 12% from 27-12-1975, the total amount claimed being Rs. 13,703/-. The 1st plaintiff is an Insurance Company (hereinafAIR 1982 A.P. 337 ; AIR 1983 Bom 301ter called the insurer) and the 2nd plaintiff is the consignee of certain goods (hereinafter referred to as the insured). The suit is filed by the 1st plaintiff on its own behalf and as the Power of Attorney holder of the 2nd plaintiff. The plaint allegations are the following: One Maya Agencies entrusted 80 bundles of raw rubber to the defendant, a common carrier, for carriage through its transport service by road from Cochin to Kanpur, under Exts.A1 and A2 invoices dated 24-5-1975. The goods had a total weight of 4,000 Kgs. and the consignee was the 2nd plaintiff. It was insured with the 1st plaintiff for Rs. 34,400/- against road risk, theft, pilferage etc. by Ext.A4 policy dated 26-5-1975. According to the plaintiffs the articles reached Kanpur on 1-8-1975. Forty bundles were taken delivery of on 2-8-1975 by. the consignee. On 19-8-1975, they took delivery of 38 bundles. Two bundles were not delivered at all and the 78 bundles were found in a damaged condition on 20-8-1975. At the instance of the 2nd plaintiff a survey was conducted and the certificate is marked in the case as Ext.A7 dated 12-9-1975. The defendant also issued certificates Exts.A5 and A6 dated 28-8-1975 acknowledging liability in respect of the goods covered by the lorry receipts. The Surveyor under Ext.A7 assessed the loss in respect of 38 bundles delivered at the rate of 25% which came to Rs. 4,060/-. The cost of two bundles short delivered was fixed at Rs. 856/-. The loss on 40 bundles was assessed at 25% and the amount was fixed at Rs. 4,280/-. Though the total amount comes to only Rs. 9,196/-, it is stated in the plaint that the loss was estimated at Rs. 9,511/- by the surveyor. The 2nd plaintiff consignee by letter dated 8-11-1975 (Ext.A8) claimed Rs. 9250/- from the defendant who sent a reply Ext.A9 on 19-11-1975 denying their liability. The 2nd plaintiff was paid the above amount of Rs. 9,511/- by the 1st plaintiff insurer. The loss and damage occurred due to the negligence and misconduct on the part of the defendant and its employees and the defendant is liable to make good the loss and damage. The 2nd plaintiff gave Ext.A10 dated 28-11-1975, a letter of subrogation to the 1st plaintiff, on the basis of which the 1st plaintiff has filed the suit to recover the loss and damage from the defendant with interest at 12% on the amount paid, from 27-12-1975 till the date of realisation. The plaintiffs further allege that inspite of notice, the defendant has not paid the amount and so the suit is filed for recovery of the above amount from the defendant.

2. The defendant filed a written statement, contending that the suit is not maintainable, that the Cochin Court has no jurisdiction to try the suit and that the suit is bad for want of notice under S.10 of the Carriers Act. They also contended that the suit is barred by limitation. The survey report Ext.A7 is not binding on the defendant as it was conducted without notice to them and the defendant is not liable to pay any amount to the plaintiffs. The claim made is exhorbitant and the suit is liable to be dismissed.

3. After trial, the lower court found that the Cochin court has jurisdiction to try the suit, that the plaintiffs are competent to file the suit and that the suit is not barred by limitation; and on the basis of Ext. A7 report granted a decree to the plaintiffs for realisation of Rs. 9,202/- with interest at 6% from the date of suit till recovery and costs. The appeal by the defendant is against the above decree.

4. In the appeal, Sri Mohan C. Menon who ably argued the case for the appellant raised the following points: 1) The 1st plaintiff Insurance Company has filed the suit on