The central legal point established in the judgment is the interpretation of Sections 8 and 9 of the Carriers Act to determine the ownership of goods entrusted to a common carrier and the entitlement to maintain a claim for damages.

1. The defendant, who has lost before the Courts-below, has filed this appeal against the judgment and decree in O.S.No.3102 of 2002 as confirmed in A.S.No.596 of 2005 confirming the decree and judgment passed by the IV Assistant Judge, City Civil Court, Chennai dated 11-04-2005 passed in O.S.No.3102 of 2002 in so far with regard to the principal amount, on its file.

2. The facts leading to the filing of this Appeal are as follows:-

2.1. The first plaintiff is one KEC International Limited dealing in petrochemicals. The first plaintiff as per invoice bearing No.910711, dated 06-01-2000 despatched a consignment of 7.968 MT of Methyl Ethyl Ketone to their consignee, M/s. Sultanchand Bimalprakash Limited at New Delhi on consignment sale basis. The defendant, Western Carriers at Chennai, in acknowledgement of the entrustment of the consignment in good order, issued the consignment note dated 06-01-2000. The defendant, who as a common carrier though duty-bound to deliver the goods in good condition, failed in discharging their duty, as 1.610 MTs of the consignment were found leaking. The said leakage was also quantified by an independent Surveyor and the loss was assessed. The Surveyor had also issued the report dated 30-01-2000. The plaintiff had contended further that the consignment was insured with the second plaintiff for transit risks and as per the policy of the Insurance and based on the Surveyor's report, the loss was quantified at Rs.92,543/- (Rupees Ninety two thousand five hundred and forty three only) and the same was indemnified by the second plaintiff to the first plaintiff. On such settlement, the first plaintiff executed a Letter of Subrogation and a special Power of Attorney in favour of the Insurance Company, viz., the second plaintiff. Based on the strength of the Letter of Subrogation and the Power of Attorney, this suit is filed by the second plaintiff along with the first plaintiff for the recovery of the sum settled by the second plaintiff to the first plaintiff.

2.2. The suit was resisted by the defendant contending, interalia, that the leakage was caused not during the transit. But, it happened only at the consignee's end, as the consignment was booked on door delivery basis, the leakage could have happened during the unloading process. The defendant also contended that there was no notice as contemplated under Section 10 of the Carriers Act within the period of six months and also denied having received such notice. It was further contended by the defendant that the suit was bad for non-joinder of necessary party as the consignee was not made a party and prayed for dismissal of the suit.

2.3. One S. Mohan, Assistant Manager of the second plaintiff Company was examined as P.W.1 and Exs-A1 to A12 were marked on the side of the plaintiffs. The defendant did not examine any witness nor produced any documents on its side.

2.4. On a consideration of the facts and evidence available on record, the Courts below finding that the defendant-Carrier was negligent fixed the liability on them and decreed the suit filed by the plaintiffs. Aggrieved by the concurrent finding, this Second Appeal has been filed by the defendant-Carrier.

3. At the time of admission, the following substantial questions of law were correlated:

(a) Whether the Courts were correct in accepting the evidence of PW1, who is admittedly, an employee of the second respondent, who had no personal knowledge of the case in the light of the judgment reported in 2005 (2) SCC 217?

(b) Whether the Courts were correct in believing Ex.A.7, the survey report as true and correct in estimating the loss in the absence of the non-examination of the author thereof, in the light of the judgment reported in 1998 (8) SCC 541?

(c) Whether the Courts were correct in holding that the first respondent had a valid title and as "owner of the goods" entitled to file a suit under the provisions of the Carriers Act in the light of the provisions of Sections 8 and 9 of