Insurance Company way recover the amount assessed from the carrier.

P. D. DINAKARAN, J. :- The above appeal is directed against the decree and judgment dated 29-11-1988 made in O.S. No. 4991 of 1995 passed by the learned II Assistant Judge, City Civil Court, Madras dismissing the suit laid by the appellants herein to recover a sum of Rs. 56,307.55 p with interest @ 12% per annum from the date of plaint till the date of realization.

2. For the purpose of convenience, the parties to the appeal shall be referred to as per their rank in the suit.

3.1. The second plaintiff is the Insurance Company. The first plaintiff entrusted a consignment containing 1080 tins and 77 cartons of biscuits with the defendant in the suit to transport the same from Bangalore to Calicut, under LR No. 10843 dated 31-1-1983 and to deliver the consignment to M/s. Bond Food Products Private Limited, C/o Spencer's and Co. Limited at No. 8/149, Beach Road, Calicut-673001, of course, after insuring the same with the second plaintiff for all risks, under Policy No. 4120/3/548/M/49/B-OPL, dated 31-1-1983.

3.2. Unfortunately, in an accident that took place on 1-2-1983, during transit from Bangalore to Mysore, the entire consignment was badly damaged and the same was brought to the first plaintiff's factory and at the instance of the first plaintiff, the second plaintiff Insurance Company at Bangalore appointed a Licensed Surveyor (P.W. 2) to assess the damages and shortage caused to the consignment.

3.3. The surveyor (P.W. 2), after the survey, submitted his report dated 2-3-1983 (Ex. A4), recommending for payment of a sum of Rs. 66,368.83 p to the second plaintiff towards damages and shortage in quantity of biscuits. On the basis of the Surveyor's Report(Ex.A4) the first plaintiff made a claim on 7-2-1983, marked as Ex. A5; and after negotiation between the first plaintiff and the second plaintiff, the second plaintiff settled a sum of Rs. 56,307.55 p to the first plaintiff under Ex. A9, viz., the receipt for payment of a sum of Rs. 56,307.55p. In consideration of the same, a letter of subrogation (Ex. A8) was executed by the first plaintiff in favour of the second plaintiff; and based on which, the plaintiffs have preferred the above suit.

4. The defendant resisted the suit on the following grounds :

(i) as the accident had taken place during transit between Bangalore and Mysore, outside the jurisdiction of the City Civil Court, Chennai, the plaintiffs are not entitled to file the above suit before the City Civil Court at Chennai;

(ii) the insurance contract entered into between the first plaintiff and the second plaintiff is not binding on the defendant, and as there is no privity of contract between the second plaintiff and the defendant, the defendant is not liable to settle the suit claim;

(iii) the surveyor's report (Ex.A4) is neither admissible in evidence nor binding on the defendant for the following reasons :

(a) the defendant was not given any notice either before the appointment of the surveyor (P.W.2) or before the survey was conducted by the surveyor;

(b) the surveyor's report (Ex.A4) itself was "without prejudice" and therefore, the same could not be relied on as a relevant piece of evidence in view of Section 23 of the Indian Evidence Act; and

(c) the plaintiffs failed to produce documentary evidence relating to the insurance policy entered into between them;

and

(iv) in any event, the plaintiffs having failed to prove the quantum of damage alleged to have been sustained by them in the accident are not entitled for the relief as prayed for.

5. On the above pleadings, the learned trial Judge framed the following issues for consideration :

(i) Whether the plaintiffs are entitled to seek a claim as prayed for?

(ii) Whether the trial Court has got jurisdiction?

(iii) To what relief the plaintiffs are entitled to?

6. In order to substantiate the respective plea, the plaintiffs through P.W. 1, an officer of the second plaintiff-Insurance Company, and P.W. 2, the surveyor, marked 10 documentary of which the following are releva