The central legal point established in the judgment is the duty of the carrier to take necessary care and caution to safeguard consignment goods, as outlined in the Carriers Act and Marine Insurance Act.

JUDGMENT :

Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 30.10.2007 passed in A.S.No.24 of 2007 on the file of the IV Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 10.07.2006 passed in O.S.No.2975 of 2003 on the file of the V Assistant Judge, City Civil Court, Chennai.

1. Challenge in this second appeal is made to the Judgment and Decree dated 30.10.2007 passed in A.S.No.24 of 2007 on the file of the IV Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 10.07.2006 passed in O.S.No.2975 of 2003 on the file of the V Assistant Judge, City Civil Court, Chennai.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. The defendant in O.S.No.2975 of 2003 is the appellant in the second appeal.

4. Suit for recovery of money.

5. Briefly stated, the case of the plaintiffs is that the first plaintiff despatched various consignments of engine valves, guides and tappers to their consignee at Calicut Cochin, Mysore, Belgaum and Shimoga based on the purchased orders placed by the consignees and the abovesaid consignments were properly packed in good order and condition and entrusted with the defendant's carrier for safe carriage and delivery to the intended consignees. The defendant, accordingly, had acknowledged the entrustment of the goods consigned and undertaken to deliver the same to the intended consignees at various places. The first plaintiff had insured the consignment goods with the second plaintiff under the open policy and according to the plaintiffs, the defendant's carrier failed to deliver the consignments in full and there is a shortage of 14 cases during the transit of the consignments and the defendant vide their letter dated 26.05.2000 admitted the short delivery and accordingly, the first plaintiff sent a notice calling upon the defendant to meet the loss sustained by the plaintiff amounting to Rs.66,703/- and inasmuch as due to lack of care and negligence on the part of the defendant's carrier in transporting the consignments, the shortage had occurred as abovestated and when the defendant's carrier had failed to discharge the duties as prescribed under the Carriers Act, according to the first plaintiff, based upon the policy taken with the second plaintiff, the second plaintiff settled the claim for a sum of Rs.76,793/- by way of the letter of subrogation and special power of attorney in favour of the second plaintiff on 21.11.2000 and accordingly, the plaintiffs are entitled to the suit amount being the invoice of value of the consignments short delivered and hence, they had come forward with the suit.

6. The defendant resisted the plaintiffs' suit contending that the claim of the plaintiffs that the second plaintiff had got subrogated to the rights of the first plaintiff based upon the policy is not legally sustainable and the defendant's carrier is not aware of the actual contents of the consignments and the defendant had never undertaken to carry and deliver the consignments to the intended consignees in the same good order or condition and the defendant is not a party to the contract entered into between the plaintiffs and the delivery of goods was intimated by the defendant by letter dated 26.05.2000 only to enable the first plaintiff to claim the loss from the second plaintiff and according to the defendant, the short delivery of goods was due to an unexpected theft en route and in connection with the same, the police complaint had been lodged by the defendant and the same was recorded by the police as not traceable. The alleged loss said to have been sustained by the plaintiff was not due to lack of care and negligence on the part of the defendant and therefore, the defendant cannot be made responsible for the loss, which had occurred due to the theft en route and hence, sought for the dismissal of the plaintiffs' suit.

7. In support of the plai