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2 1988 ACC 391
Mohan, Swamikkannu
Assam Bengal Roadways (P) Ltd.
Versus
Hindustan Photo Films Manufacturing Co. Ltd. And Anr.
Decided on: 21/1/1988
.
CARRIERS ACT - SECTION 9 - LIABILITY OF COMMON CARRIER - SUBROGATION - INSURANCE - SALVAGE - DAMAGES - QUANTUM OF DAMAGES - OWNER'S RISK - NEGLIGENCE - ACCIDENT - MECHANICAL FAILURE - BURDEN OF PROOF - INSURANCE POLICY - LETTER OF SUBROGATION - DISCHARGE VOUCHER - SURVEYOR'S FEE - PRESUMPTION AGAINST CLAIM - NOTICE FOR PRODUCTION OF DOCUMENTS - VALID SUBROGATION - CONFIRMATION OF TRIAL COURT'S JUDGMENT AND DECREE - DISMISSAL OF APPEAL - NO ORDER AS TO COSTS.
Fact of the Case:
The plaintiffs, M/s. Hindustan Photo Films Manufacturing Co., Ltd., and M/s. The United India Insurance Co., Ltd., filed a suit against the defendant, M/s. Assam Bengal Roadways (P) Ltd., for damages caused to goods transported by the defendant. The plaintiffs alleged that the defendant was liable for the damages as a common carrier under the Carriers Act, and that the second plaintiff, as the insurer of the goods, was entitled to recover the damages by way of subrogation. The defendant denied liability, claiming that the goods were carried at owner's risk and that the accident that caused the damage was due to mechanical failure.
Finding of the Court:
The court held that the defendant was liable for the damages as a common carrier under Section 9 of the Carriers Act, as the plaintiffs had discharged the initial onus of proving the loss or damage and the defendant had failed to prove the absence of negligence. The court also held that the second plaintiff was entitled to recover the damages by way of subrogation, as there was a valid subrogation in its favor by the first plaintiff.
Issues: 1. Whether the defendant was liable for the damages as a common carrier under the Carriers Act. 2. Whether the second plaintiff was entitled to recover the damages by way of subrogation.
Ratio Decidendi: 1. Under Section 9 of the Carriers Act, a common carrier is liable for the loss or damage to goods entrusted to it for carriage, unless the carrier can prove that the loss or damage was not caused by its negligence or that of its servants or agents. 2. The doctrine of subrogation allows an insurer who has paid a claim to the insured to step into the shoes of the insured and pursue any claims that the insured may have against a third party who caused the loss or damage.
Final Decision: The court confirmed the judgment and decree of the trial court, dismissing the appeal with no order as to costs.
Swamikkannu, J.
1. This is an appeal filed by the defendant, M/s. Assam Bengal Roadways (P) Ltd., against the judgment and decree dated 23 10-1981 in O.S. No. 234 of 1980 on the file of the Subordinate Judge of Nilgiris at Ootacamund in a suit for damages finding that the plaintiffs M/s. Hindustan Photo Films Manufacturing Co., Ltd., Ootacamund and M/s. The United India Insurance Company Ltd., are entitled to a decree directing the defendant/appellant to pay a sum of Rs. 1,34.904.82 to the second plaintiff-Insurance Company with costs and with interest at 6% per annum from the date of the suit till date of realisation.
2. Before the lower Court, the case of the respondents is as under: The first plaintiff is M/s. Hindustan Photo Films Manufacturing Co., Ltd., a Government of India Enterprise, having their registered office at Indu Nagar, Ootacamund, Tamil Nadu and the second plaintiff is M/s. United India Insurance Co., Ltd., Coimbatore having their registered Office at Coimbatore. The defendant/appellant herein/is a public common carrier carrying its business in transporting goods from place to place for hire. It has got its registered and head office at No. 9437, Multani Dhande, Gali No. 10, Dhari Ganji, New Delhi. As per transfer of Stock 8/21/121 dated 12/14-11 1977 issued by M/s. Hindustan Photo Films Manufacturing Co., Ltd., the first plaintiff entrusted 152 wooden cases of X-ray film with the defendant at Ootacamund under the defendant's consignment Note No. 270 dated 14-11-1977 for transport to the first plaintiff's branch office at New Delhi The first plaintiff-first respondent herein was the consignor and the first plaintiff's branch office at New Delhi is the consignee under the aforesaid consignment note No. 270. The original consignment Note No. 270 has been given to the defendant at the time of taking delivery of the goods. When the goods arrived at Delhi, the defendant delivered all 152 cases of X-ray film, out of which 62 cases were found completely damaged and wet in diesel oil Therefore an open delivery was taken and the defendant has given a shortage/damage certificate dated 21-12-1977 in token of having delivered 525 packets in damaged condition. The damage to the consignment is due to the negligence of the defendant in handling and transport. The defendant has categorically admitted in the said certificate dated 21-12-1977 that in case the inside contents of the packets delivered in good conditions are affected, they shall make the good the loss. The allegation in the said certificate that was issued strictly without prejudice and without admission of liability on the part of the defendant is illegal, and in any event untenable as it is contrary to the absolute liability of a common carrier under law. The damage to the goods having been caused by the negligence of the defendant, they are liable to pay their value by way of damages. The damaged goods are totally unfit for use The plaintiffs are restricting their claim for damages representing the cost of materials delivered in damaged condition by the defendant less salvage together with the survey fees incurred in surveying and assessing the damages. Since the first plaintiff has insured the goods, it caused the damaged goods to be surveyed and damages assessed by a qualified Surveyor/assessor by name M/s. K D. Kholi & Co., and they have also assessed the damages. The first plaintiff has insured the said goods with the second plaintiff under the latter's Policy No. 112/83/1/00006/77 to cover the risk against loss or damage in transit In the circumstances the second plaintiff was obliged to pay to the 1st plaintiff a sum of Rs. 1,34.904-3 as detailed in the particulars of damages, made up of value of the goods damaged plus Central excise, less salvage value. Hence the second plaintiff is entitled to sue the defendant in its own name for the recovery of the suit claim, under the name of subrogation. In consideration of the aforesaid payment, the first
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