R. Subbiah, J.

The present appeal has been filed by the first defendant, as against the Judgment and Decree dated 19.12.2011 passed in O.S. No. 11112 of 2010 on the file of Additional District and Sessions Judge (Fast Track Court-V), Chennai by which the court below decreed the suit filed by the plaintiffs/respondents 1 and 2 herein inter alia directing the first defendant/appellant herein and also the second defendant/third respondent herein to pay jointly and severally to the second plaintiff the sum of Rs.13,39,213/- along with 18% simple interest from the date of plaint till the date of payment.

2. The appellant in this appeal is the first defendant in the suit. The respondents 1 and 2 herein are the plaintiffs, who have instituted the suit. The third respondent in this appeal is the second defendant in the suit. For easy reference, the parties are referred to in this appeal as per their ranking in the suit as 'plaintiffs' and 'defendants'.

3. The first plaintiff is a Public Limited Company incorporated under the Indian Companies Act. During the course of their business, the first plaintiff imported a cargo which consists of Computer Parts, Memory Modules - Samsung Material Code IC000647 etc., from M/s. Excelpoint Systems (Pic) Limited, Singapore as per their invoice bearing Nos. EPSRIV07011435 and EPSRIV07011436, both dated 10.09.2007. According to the first plaintiff, the said cargo was securely packed in 8 cartons and entrusted with the second defendant, who is the consolidator and the second defendant also issued House Airway Bill (HAWB) bearing No. SIN0529248 dated 12.09.2007. The second defendant in turn handed over the cargo to the first defendant - Air Carrier who issued Master Airway Bill (MAWB) No.618-5459 9123 dated 12.09.2007 thereby undertaking to carry and deliver the cargo at Chennai Airport in the same condition. According to the plaintiffs, the defendants failed to deliver the cargo as entrusted to them, with the result, there was a short landing of 3 cartons of cargo out of 8 cartons. According to the plaintiffs, the CIF value of the undelivered cargo is Rs. 13,39,213/- which includes proportionate freight and insurance charges. In this context, the first plaintiff, as owner of the cargo, issued notices indicating the loss of cargo on its arrival to both the defendants on 21.09.2007. The appellant/first defendant, by reply dated 03.12.2007, acknowledged such non-delivery of the cargo under HAWB SIN0529248. It is the contention of the plaintiffs that the short landing or non-delivery of 3 packages of cargo and the consequential pecuniary loss sustained by them is a result of lack of care, wilful misconduct and negligence attributable on the part of the defendants in handling the cargo. According to the plaintiffs, the first defendant, as Air Carrier and the third defendant, being the Consolidator, are therefore jointly and severally liable to compensate the plaintiffs for the loss caused to them and they are not entitled to restrict their liability as they have not chosen to disclose as to how the suit cargo was handled by them when they had exclusive custody of the same. In the absence of disclosure by the defendants as to the manner in which they have handled the cargo, their wilful misconduct and negligence have to be presumed. Thus, according to the plaintiffs, the defendants have failed to discharge their duties as contained under the Carriage by Air Act and thereby rendered themselves liable, jointly and severally, to compensate the plaintiffs.

4. It is the further case of the plaintiffs that the suit cargo was insured by the first plaintiff with the second plaintiff under Policy No. 501502/21/07/4200000002. On the basis of the claim made by the first plaintiff, the second plaintiff settled the claim of Rs. 13,39,213/- made by the first plaintiff, being the proportionate insured value of the non-delivered cargo. On such indemnification, the first plaintiff executed a letter of subrogation and S