The liability of a common carrier for the loss or damage of property is absolute unless there is a special contract limiting the liability, and the burden of proving absence of negligence is on the carrier.

JUDGMENT :

Prayer: Appeal Suit has been filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 31.08.2006 made in O.S.No.4919 of 2002 on the file of VI Additional Judge, City Civil Court, Madras.

1. This appeal filed by the defendant, being aggrieved by the judgment and decree of the trial Court allowing the suit filed for recovery of Rs.7,91,162/- with 18% interest from the date of the plaint till realisation.

2. For sake of clarity, parties are described as found in the plaint.

3. Background facts of the case:-

The first plaintiff is a Public Sector Company. The second plaintiff is the Insurance Company, which holds letter of subrogation given by the first plaintiff and also the power of attorney of the first plaintiff. The defendant is a common carrier for reward. On 17.08.1999, the first plaintiff entrusted 10.270 MT of LUBAD-484 lubricating oil worth Rs.8,09,395.44 to the defendant carrier at Chennai for safe carriage and delivery to M/s Bharat Shell Limited, Taloja. The consignment was not delivered to the consignee at Taloja due to the accident at Sathara Highways en route to Taloja on 21.08.1999. On receipt of the information, the second plaintiff with whom the consignment was insured, appointed M/s Martech Surveyors, to assess the loss. The surveyors assessed the loss at Rs.8,09,395.44 and filed a report indicating that on the earlier hours of 21.08.1999, the tanker carrying the suit consignment met with a road mishap and the tanker overturned. Consequently, the contents of the tanker leaked. The first plaintiff on 19.10.1999 through its letter made a claim on the defendant for the value of the material entrusted. The defendant received the same and acknowledged on 07.12.1999 for the loss of goods. Non-delivery of the consignment and consequent pecuniary loss sustained by the first plaintiff were due to the negligence on the part of the defendant. For breach the statutory duty, the defendant was called upon to disclose, how the suit consignment was handled during transit while they had exclusive custody. Also, complaint was given to the second plaintiff, which had insured the suit consignment for transit loss. The second plaintiff, as per the terms and conditions of the Insurance Policy, settled the first plaintiff a sum of Rs.7,91,162/- there upon obtained the letter of subrogation and special power of attorney dated 25th May 2001 from the first plaintiff. The liability of the common carrier is that of an insurer absolute and unconditional notwithstanding absence of negligence. Therefore, a sum of Rs.7,91,162/- was claimed from the defendant for the loss of consignment. After serving pre-suit notice to the defendant, the suit for recovery of money with interest laid before the City Civil Court, Chennai and taken on file as O.S.No.4919 of 2002.

4. The defendant contested the suit on the ground that the first plaintiff entrusted 10.270 Metric Tonnes of LUBAD-484 lubricating oil additives on 17.08.1999 to be carried for delivery at Taloja. The consignment was transported in the vehicle bearing Reg.No.TN04Z-3899. The vehicle was insured with the Oriental Insurance Company Limited, having its office at Teynampet, Chennai. In the suit claiming damages for the loss of goods in transit, the said Insurance Company, which has agreed to indemnify the claimant, is a necessary party. For non-joinder of necessary party, the suit is bad and liable to be dismissed.

5. When the vehicle was proceeding in Sathara Highways, when tried to avoid collision with the vehicle coming ahead capsized at Siruval 40 km before Pune, due to heavy rain. The accident occurred at 3.30 hours on 21.08.1999, when the tanker lorry driver wanted to avert the disastrous accident i.e, the head on collision. As per the contract note dated 17.08.1999, it is the duty of the 1st plaintiff to insure their goods, that are being transported. The defendant never agreed acknowledge of its liability. Since the accident took place at Siruv