IMPORTANT POINT
The carrier is absolutely liable for loss of goods entrusted to them during transport, and the plaintiffs are not required to prove negligence if they can establish the loss and the entrustment of goods.

JUDGMENT :

(R. Subramanian, J.)

(Prayer: First Appeal filed under Section 96 of C.P.C., against the judgment and decree dated 23.09.2016 passed in O.S.No.678 of 2004 on the file of the I-Additional District Judge, Coimbatore.)

(Prayer: First Appeal filed under Section 96 of C.P.C., against the judgment and decree dated 23.09.2016 passed in O.S.No.805 of 2004 on the file of the I-Additional District Judge, Coimbatore.)

The defendants in O.S.No.678 of 2004 and O.S.No.805 of 2004 are on appeal, aggrieved by a decree granted by the Trial Court, directing payment of a sum of Rs.9,93,631/- with interest at the rate of 9% per annum from the date of suit till date of realization in O.S.No.678 of 2004 and for a sum of Rs.13,94,200/- with interest at the rate of 9% per annum from the date of suit till date of realization in O.S.No.805 of 2004.

2. The suits came to be filed by the respondents namely, the Insurer and the Consignor of the goods namely, cotton yarn on the basis that loss has occurred while the goods were in the custody of the carrier namely, the appellant herein. The Insurance Company, having indemnified the Consignor had obtained a letter of subrogation, authorizing it to claim the compensation from the appellants/carrier, had laid the suits along with the Consignor.

3. The parties will be referred as per their ranks in the suits for the shake of convenience. The plaintiffs claimed that the 2nd plaintiff which is a 100% export oriented unit engaged in manufacturing of cotton yarn had booked cotton yarn weighing 19008 kilograms for the purpose of transport from its factory at Sulur in Coimbatore District to the Tuticorin Port for being transported by sea to M/s.CWC Textile AG, Hotzestrasse 29, Postfach 155, CH-8042, Zurich (herein after referred as Consignee) through M/s.Norasia Lines, a liner agent at Tuticorin. Claiming that the consignee had informed the plaintiff that there was a shortage of 5999 kilograms of cotton yarn when the goods were delivered to the consignee at Zurich, the 2nd plaintiff/Consignor issued a notice demanding the payment of the value of the shortfall, amounting to Rs.11,11,709/-. Since the defendant did not honor the demand and refused to compensate, the 2nd plaintiff made a claim that the 1st plaintiff, from whom it had taken a marine policy seeking indemnification of the loss. The 1st plaintiff accepted the claim and indemnified the 2nd plaintiff, upon which, the 2nd plaintiff executed a letter subrogation of the rights to recover the loss from the carrier namely, the defendant.

4. In O.S.No.805 of 2004, the plaintiff claimed that it had booked 8200 kilograms of cotton yarn and the Consignee namely, M/s.MANTAFIL SPA, VIA DON A RAVIZZA 24, 24060 CASTELLI CALEPIO (BG) ITALY, upon receipt of the cargo, intimated there was a shortfall of about 5600 kilograms of cotton yarn. Therefore, the Insured/the 2nd plaintiff claimed the loss of a sum of Rs.25,88,040/- from the carrier/defendant. Since the carrier by letter dated 12.05.1998 refused to compensate the 2nd plaintiff, the 2nd plaintiff made a claim that the 1st plaintiff who is the Insurer and the Insurer after following the necessary formalities admitted the claim and paid a sum of Rs.24,99,152/-, being the value of the missing cargo. Upon such payment, the 2nd plaintiff executed a letter of subrogation in favour of the Insurance Company, authorizing it to recover the loss from the carrier. Since the Insurance Company along with the 2nd plaintiff/Consignor/ Insured had filed a suit for recovery of the loss. Since the parties namely, Consignor, the Carrier and the Insurance Company were the same in both the suits. Both the suits were tried together and evidence was recorded in the earlier suit namely, O.S.No.678 of 2004.

5. The suits were resisted by the carrier contending that the loss did not occur when the goods were in its custody. According to the defendant/s, the loss might have occurred during shipping or at the Port. It is the further contentio