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HIGH COURT OF ANDHRA PRADESH
V. SRINIVAS, J
Laxmi Transports, Transport Contractors, – Appellant
Versus
National Insurance Company Limited, – Respondent
AS 417/2006
Carriers Act - Recovery of Damages - The court found the defendant liable to pay damages as claimed by the plaintiff. The defendant's plea of limitation was rejected, and the court held that the suit was within the limitation period. The court also emphasized the burden of proof on the carrier to establish the absence of negligence. The appeal was dismissed, and the judgment of the trial court was confirmed.
Fact of the Case:
The plaintiffs filed a suit against the defendant for recovery of an amount of Rs.11,88,628/- with subsequent interest and costs, claiming that the consignment was damaged during transit from Rajam to Mumbai. The defendant contended that it was not liable to pay any damages as the consignment was accepted 'at owner's risk' and that the suit was barred by limitation.
Finding of the Court:
The trial court found the defendant liable to pay damages as claimed by the plaintiff and held that the suit was within the limitation period. The court emphasized the burden of proof on the carrier to establish the absence of negligence. The appeal was dismissed, and the judgment of the trial court was confirmed.
Issues: The issues settled for trial were whether the plaintiff was entitled to recover the amount being the value of loss of the consignment and interest thereon from the defendant, and whether the defendant delivered the consignment to Mumbai Harbour under endorsement and therefore, was not liable to pay any damages to the plaintiffs.
Ratio Decidendi: The court emphasized the burden of proof on the carrier to establish the absence of negligence and held that the suit was within the limitation period. The court also rejected the defendant's plea of limitation and found the defendant liable to pay damages as claimed by the plaintiff.
Final Decision: The appeal suit was dismissed by confirming the judgment of the trial court. There shall be no order as to costs.
JUDGMENT:
This appeal under Section 96 of the Code of Civil Procedure is directed against the decree and judgment dated 24.03.2006 in O.S.No.22 of 2003 on the file of the Court of learned VIII Additional District and Sessions Judge (Fast Track Court), Visakhapatnam.
2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.
3. The appellant herein is the defendant and the respondents herein are the plaintiffs before the trial Court.
4. The plaintiffs instituted the suit against the defendant for recovery of an amount of Rs.11,88,628/- with subsequent interest and costs.
5. Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.
6. The case of the plaintiffs, in brief, is as follows:
(i) The 1st plaintiff is an insurance company incorporated under the Companies Act, 1956 and having its Head Office at Kolkata and having Divisional Offices at several places and one of them is at Dwarakanagar, Visakhapatnam. The defendant is a Transport contractor engaged in the business of carriage of goods by road and it is a common carrier within the meaning of Carriers Act, 1865(for short „the Act‟).
(ii) The 2nd plaintiff is doing export business in cloth by procuring the cloth from different mills and has taken a Marine Cargo-Inland Transit Policy from the 1stplaintiff at Ahmadabad covering risk of cloth during the transit from anywhere in India to anywhere in India from 27.03.1997 to 26.03.1998.
(iii) The 2ndplaintiff purchased cotton gray fabric from M/s.Sri Saritha Synthetics Limited, Rajam of Srikakulam District, Andhra Pradesh for the purpose of exporting the same to Hungary. The 2ndplaintiff has engaged the services of the defendant to transport the cotton gray fabric from M/s.Sri Saritha Synthetics Limited, Rajam to Mumbai Harbour by road. Twenty number of bales consisting of twenty thousand metres of gray cotton fabric were dispatched from M/s. Sri Saritha Synthetics Limited vide invoice No.72 dated 27.07.1997 and LR.No.0026 dated 27.07.1997.
(iv) The defendant has transported consignments from Rajam to Mumbai by their truck and on the way, the consignment was damaged due to rain and it was delivered by the defendant at Mumbai Harbour in a wet condition. Therefore, the shipping company has refused to stuff the Cargo as is not suitable for export.
(v) On 03.08.1997, the 2nd plaintiff informed the defendant about the damage caused to the consignment and requested to settle the loss of Rs.9,90,000/- towards value of the consignment and other incidental charges on 05.08.1997. The 2nd plaintiff has informed the 1st respondent at Ahmedabad about the damage of the consignment during the transit. The 1st plaintiff, through its Divisional Office at Mumbai, has deputed a Surveyor and the Surveyor has conducted a detailed survey and submitted the Survey report on 27.08.1997. On 23.09.1997, the defendant addressed a letter to the 2nd plaintiff advising to claim the loss from the insurance company. (vi) On 17.10.1997, the 2ndplaintiff addressed a letter to the defendant requesting to issue a Damage Certificate. But it has not issued any certificate regarding the damage of consignment during transit. So, the 2ndplaintiff made the claim with the 1st plaintiff. The 2nd plaintiff claimed Rs.7,47,565/- from the 1st plaintiff and the 2nd plaintiff also addressed a letter dated 03.11.1999 requesting the 1st plaintiff at Ahmadabad to settle the claim immediately. The claim was settled for the above said amount towards full and final settlement of the claim to the 2nd plaintiff on 29.12.1997. The 2ndplaintiff inturn executed the Special Power of Attorney and a letter of subrogation, subrogating all the rights and remedies to the Insurance Company/1stplaintiff to recover all loss or damages from the defendant. Hence, the 1st plaintiff is entitled to claim th
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