The carrier's liability for damages cannot be limited by an expired agreement, and negligence on the part of the carrier establishes full liability for the loss.

JUDGMENT :

1. Aggrieved over the Judgement and Decree dated 06.04.2018 passed in O.S.No.820 of 2017 on the file of the XVI Additional City Civil Court, Chennai, the defendant has preferred the first appeal.

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

3. Suit for recovery of money for damages.

4. The defendant in O.S.No.820 of 2017 on the file of the XVI Additional City Civil Court, Chennai, is the appellant herein.

5. The plaintiffs' case is as follows:

The first plaintiff is the owner of the suit cargo. The second plaintiff is the insurer, who issued a marine cargo policy and indemnified the loss to the first plaintiff and have been subrogated to the rights of the first plaintiff. The first plaintiff in the course of their business transferred their consignment of 95 Nos. of Business Projectors from their office at Chennai to their office at Howrah as per their Internal Stock Transfer Invoices bearing No.INCL/49536761/INEO valued at Rs.58,271.24/-, No.INCL/49532066/INEO valued at Rs. 17,88,305.77/- both dated 18.10.2013. The said consignment securely and customarily packed was entrusted with the Defendant for safe carriage from Chennai to be delivered at Howrah. The Defendant in such acknowledgement of such entrustment in good order and condition issued their Airway Bill bearing No.50245266853 dated 19.10.2013, thereby undertaking to carry and deliver the cargo in the same and good order as was entrusted to them. The said consignment was insured with the Second Plaintiff under Marine Cargo Open Policy No.602200/21/13/42/00000056.

5.1. The Defendant Carrier failed to deliver the said consignment in the same apparent good order and condition as was entrusted with them and thereby, committed breach of their statutory obligation. The suit consignment was delivered in a damaged condition by the defendant at destination on 06.11.2013 when the first plaintiff acquired knowledge of the loss to the suit consignment. Upon such damaged delivery, the second plaintiff appointed Mr.G.C.SAHU, surveyors and Loss Assessors Valuers licensed under the Insurance Act, to assess the loss suffered by the first plaintiff. The said surveyor conducted a detailed survey at the First Plaintiff's premises and assessed the nature, extent and quantum of loss and issued their final survey report bearing No.VT/M/2524-Epson/13-14 dated 10.02.2014, assessing the loss amount.

5.2. Upon such damaged delivery, the first plaintiff, who are the owner of the suit consignment, at all relevant times issued a statutory notice of loss to the Defendant on 11.11.2013 informing about the loss sustained and calling upon the Defendant to settle their claim. The said notice of loss was duly served on the Defendant. The Defendant issued their Damage certificate bearing No.13075 dated 22.11.2013 admitting the fact of damaged delivery and value of the loss also. Due to the damaged delivery of the suit consignment by the defendant, the first plaintiff suffered a pecuniary loss of Rs.13,37,245/- being the proportionate insured value of the consignment short delivered. The second plaintiff settled the claim of the first plaintiff by paying a sum of Rs.13,37,245/- vide their Loss Voucher dated 25.09.2014 being the proportionate insured value of the damage consignment including other expenses incurred like survey fee, etc., On being indemnified by the second plaintiff, the first plaintiff executed a letter of Subrogation and Special Power of Attorney in favour of the second plaintiff on 19.03.2014 at Chennai. Thus, the second plaintiff is entitled to file and maintain the suit under the letter of Subrogation and Special Power of Attorney and by virtue of Section 79 of the Marine Insurance Act and thus, pleaded to decree the suit.

6. The defendant contested the suit and filed a written statement and denied the allegations contained in the plaint and contended that the present suit is not maintainable in the view of the Agreement dated 0