IMPORTANT POINT
A common carrier is liable for damages only if caused by negligence or criminal acts; the presumption of negligence can be rebutted by evidence showing that damage was due to an accidental event.

JUDGMENT :

Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 01.09.2017 passed in A.S.No.78 of 2017 by the XVIII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 08.11.2016 passed in OS.No.4019 of 2012 passed by the I Assistant Judge City Civil Court, Chennai.

The unsuccessful defendant in the suit is the appellant. The respondents herein filed a suit seeking recovery of Rs.7,05,355/- with interest for the loss caused to the goods of the first respondent, during transit by the appellant/carrier from Chennai to New Delhi. The suit was decreed by the trial Court and the findings of the Trial Court were affirmed by the first Appellate Court. Aggrieved by the same, the unsuccessful defendant has come up with this Second Appeal.

2. According to the respondents/plaintiffs, the first respondent during the course of his business, entrusted 83 numbers of Chest Freezers with the appellant/carrier for transit from Chennai to New Delhi. It was the case of the respondents that as a common carrier it was the duty of the appellant to deliver the goods entrusted in a good condition to the consignee point. It was further pleaded by the respondents that the appellant delivered only 80 Chest Freezers out of 83 Chest Freezers in a highly damaged condition. The damage caused to consignment was intimated to the appellant by way of e-mail dated 22.04.2009 and issued a statutory notice for the loss on 24.04.2009 calling upon appellant to compensate the loss. The second respondent/insurer appointed a surveyor to assess the damages and based on his survey report the second respondent/second plaintiff paid a sum of Rs.7,05,355/- towards the value of the damaged consignment to the first respondent and indemnified it as per contract of Insurance. Hence, the first respondent executed a letter of subrogation in favour of the second respondent. It was specifically averred by the respondents that the damage to the consignment was due to the negligence and lack of care on the part of the appellant and hence, they sought for recovery of the above mentioned sum.

3. The appellant/defendant filed a written statement denying the averment found in the plaint as if damage to the consignment was caused to due to the negligence and lack of care on the part of the appellant. It was the case of the appellant that they had taken proper measures to transit the goods in a good condition and the damage to the goods was caused due to the fire accident originated from the Engine of the vehicle. It was beyond the control of the appellant.

4. It was further averred that the accident had occurred due to the technical fault in the Engine which was properly maintained by them. It was also specifically averred by the appellant that the damaged consignment namely Chest Freezers were not the one covered under Insurance policy issued by the second respondent in favour of the first respondent. The second respondent paid suit amount to the first respondent in respect of the damaged goods which were not covered under the Insurance policy and therefore, the suit filed against the appellant for recovery of the amount paid by the second respondent to the first respondent was not at all maintainable. On these pleadings, the appellant sought for dismissal of the suit.

5. Before the trial Court, the Assistant Manager of the second respondent was examined as PW1 and the Surveyor appointed by second respondent was examined as PW2. On behalf of the respondents/plaintiffs 14 documents were marked as Ex.A1 to Ex.A14. On behalf of the appellant/defendant no oral or documentary evidence was let in.

6. The trial Court on appreciation of oral and documentary evidence available on record came to the conclusion that the respondents proved the suit claim and decreed the suit as prayed for. Aggrieved by the same, the appellant/defendant preferred an appeal in A.S.No.78 of 2017 on the file of the XVIII Additional