A common carrier is not strictly liable for transit loss unless it is proven that the loss arose from the negligence or criminal act of the carrier, and a consignor cannot validly subrogate rights to an insurer if they have already transferred title and risk to the consignee.

JUDGMENT :

R. POORNIMA, J.

1.This second appeal is filed against the judgment and decree, dated 12/12/2001 made in AS No.103 of 2000 on the file of the Principal District Judge, Tuticorin, reversing the judgement and decree dated 28/04/2000 made in OS No.11/1998 on the file of the Sub Court, Kovilpatti.

2.The appellant is the second defendant in the suit.

3. The case of the plaintiff in brief is that, on 07/03/1985, 750 bundles of safety matches value of Rs.78813-75/- were despatched by the third defendant to Jodhpur vide Invoice No. B-127, dated 07/03/1985 to M/s.Minesh and Co., Jodhpur (Rajasthan). The goods were despatched in a lorry bearing registration No.TDL-6465 belonging to the 2nd defendant/appellant, vide consignment Note No.2251, dated 07/03/1985. Insurance was effected by the third defendant with the plaintiff/Insurance Company, vide Policy No.41322/6/153/M/162/OPL, dated 31/03/1984.

4. On 12/03/1985, the lorry of the 2nd defendant was met with an accident near Polapur on Bombay-Konkan-Goa Highways in Raigad District (Maharashtra) colliding with the another vehicle bearing registration No.MWT-9293. Due to the collision, the Lorry No.TDL 6465 with match bundles engulfed by fire resulting in total loss of the goods, for which, FIR was registered by the Poladpur police. The first defendant who had carried the safety transportation of the goods on behalf himself and on behalf of the 2^nd defendant issued a letter to the third defendant's Insurance Company informing about the damages to the consignment. Surveyor was appointed and the Surveyor also visited the place and submitted a Survey report on 19/03/1985 along with the photographs about the accident. On 27/03/1985, the third defendant issued a registered letter with the Acknowledgement Card to the defendants 1 and 2, on 28/03/1985 and 30/03/1985 making out a claim for damages.

5. Since the defendants 1 and 2 did not choose to honour the claim amount, on 17/04/1985 the third defendant submitted his claim bill for Rs.79,914-75/- with the plaintiff Insurance Company. The plaintiff honoured the claim and settled the claim of Rs.79,914-75/- after obtaining letter of Authority dated 13/06/1985 and letter of subrogation on the same day. The plaintiff, on 07/10/1985 authorised M/s.Bhaichand Amoluk Co., Insurance Consultants and brokers to recover the amount of Rs.79,914-75/- from the carriers who in turn wrote a letter, dated 28/10/1985 to the defendants 1 and 2 calling upon them to pay the amount. On 23/11/1985, the second defendant replied through their counsel denying the claim. Even subsequent letter, dated 04/12/1985 issued by the plaintiff they did not invoke any response or paid cash. Hence, the plaintiff filed the present suit for recovery of money.

6.The first defendant disputed the liability. It is the contention of the first defendant is that there is no privity of contract between them with the third defendant. The rule of subrogation is applicable only between the plaintiff and the third defendant. The consignee M/ s Minesh and co., has purchased the entire goods. The third defendant has no insurable interest in the goods. If there is a loss, it is the consignee M/s.Minesh and Co., who has to suffer. The suit is bad for non-rejoinder of necessary party. The third defendant cannot authorise the present plaintiff, who is not a Power of Atto