JUDGMENT :

(Prayer : Appeal suit filed under Section 96 of CPC and under Order 41 Rule 1 of CPC against the judgment and decree dated 25.10.2016 passed in OS.No.206/2014 on the file of the learned XV Additional Judge, City Civil Court, at Chennai.)

1. The defendant in the suit in OS.No.206/2014 on the file of the learned XV Additional Judge, City Civil Court, Chennai, is the appellant in the above Appeal.

2. Respondents are plaintiffs in the suit. The 1st plaintiff/1st respondent is a Private Limited Company incorporated under the Companies Act, 1956 and is the consignor. The 2nd plaintiff/2nd respondent is the Insurance Company.

3. The respondents have filed the suit for recovery of a sum of Rs.11,68,219/- towards short delivery of goods and damages from the appellant as a carrier with interest at the rate of 12% per annum from the date of suit till the date of realisation.

4. Brief facts that are set out in the plaint filed by the plaintiffs/respondents are as follows.

5. The 1st respondent/1st plaintiff during the course of their business, purchased Linear Alkyl Benzene from their supplier M/s.Nirma Limited, Baroda in Gujarat and entrusted the goods for consignment on 30.11.2010 to their consignee, M/s.Srinivasa Chemical Enterprises at Thirubhuvanai [Pondicherry] through the defendant/appellant. The appellant issued their Lorry Receipt dated 30.11.2010 and undertook to carry and deliver the consignment in good condition. The 1st respondent herein is the owner of the goods and consignor, who had also insured the same with the 2nd respondent herein under a Marine Policy of insurance. During transit, the suit consignment was heavily damaged due to an accident that took place on 06.12.2010 due to which the truck owned by the appellant herein, was capsized. The 2nd respondent/Insurance Company appointed an independent Surveyor to assess the loss and the Surveyor, after conducting survey on 08.12.2010 and 09.12.2010 respectively, submitted a Report on 18.12.2010 indicating that the loss was assessed at Rs.11,68,219/-. Out of 16,525 kgs of Linear Alkyl Benzene entrusted to the appellant/defendant for delivery of consignment, the actual quantity of Linear Alkyl Benzene delivered was only 4330 Kgs. It is alleged that the accident was due to the negligence of the driver of the truck of the appellant/defendant.

6. The 1st respondent herein issued a statutory notice of loss to the appellant/defendant on 07.12.2010 informing about the loss sustained and called upon the appellant to settle their claim. The appellant acknowledged the short delivery of goods by issuing a Damage Delivery Certificate dated 21.02.2011 mentioning that the loss of goods was due to accident. Since the consignment was insured with the 2nd respondent/2nd defendant, the 2nd respondent settled the claim of the 1st respondent/1st plaintiff by indemnifying the entire loss to the tune of Rs.11,68,219/-. Upon being indemnified by the 2nd respondent, the 1st respondent herein executed a Letter of Subrogation and special Power of Attorney on 18.03.2011 in favour of the 2nd respondent at Chennai. Upon execution of Letter of Subrogation and special Power of Attorney, the plaintiffs entrusted the claim papers to their recovery agents in whose favour, the 2nd plaintiff/2nd respondent authorised to initiate recovery on behalf of plaintiffs/respondents. The Recovery Agent also sent a claim bill to the appellant/defendant on 25.06.2011 calling upon them to compensate the loss. However, the appellant denied their liability and failed to settle the claim of the plaintiffs/respondents. Though the 2nd plaintiff is entitled to file and maintain a suit independently under the Letter of Subrogation and special Power of Attorney by virtue of Section 79 of the Marine Insurance Act, to avoid technical difficulties, it is stated that the suit is filed by both plaintiffs for recovery of a sum of Rs.11,68,219/- with interest at the rate of 12% per annum.

7. From the plaint, it is seen that th