HON’BLE SRI JUSTICE NAGESH BHEEMAPAKA CCCA No. 170 OF 2000

J U D G M E N T:

This Appeal assails Judgement and Decree dated

02.02.1999 in O.S.No.313 of 1991 on the file of the III Senior Civil Judge, City Civil Courts, Secunderabad.

2. For brevity, parties are referred to as arrayed in the suit.

3. The averments in the plaint are : the 1^st plaintiff is the insurance company, during the course of its business, it issued a marine policy covering the risk of the consignment booked under GR.No.66653 dated 18.10.1988; the said consignment was entrusted by M/s Laxmi Machine Works, Coimbatore for its safe carriage to Abohar, Punjab to the 2nd plaintiff Company; defendant accepted the consignment for safe delivery; goods consist of seven cases of ring frames, sections and spares, the said consignment was delivered in a damaged condition, therefore, the 2^nd plaintiff preferred a claim on the defendant and carrier by its letter dated 08.12.1988, for the value of the damaged goods; defendant issued a damage certificate to the 2^nd plaintiff on 14.12.1988, in spite of the notice, he failed to make payment to the 2^nd plaintiff; as the goods were insured, the 2^nd plaintiff preferred a claim with the

1st plaintiff; the 1st plaintiff assessed the damage with the help of an independent surveyor and paid Rs.1,95,760/- to the 2nd plaintiff who, having received it, authorised the 1^st plaintiff to recover the said amount from the defendant.

4. On the other hand, defendant filed written statement contending that payment made by the 1^st plaintiff to the 2nd plaintiff is voluntary; consignor has no subsisting interest in the consignment as the consignee has taken delivery of the goods, the consignee, having received the damage from the insurance company, is estopped from making any further claim from defendant, there is no legal evidence about the damage caused to the goods; there is no material before the court to assess the damage independently; the surveyor report has no evidentiary value in the eye of law; suit claim is barred by limitation and for want of a statutory notice under Section 10 of the Carriers Act; therefore, the suit is liable to be dismissed.

5. The trial Court, based on the pleadings referred to above, framed the issues which are as under:

i. Whether the 2nd plaintiff is estopped from raising any claim.

ii. Whether there is any damage to the consignment due to the negligence on the part of the defendant.

iii. Whether the 1^st plaintiff subrogated to the rights and remedies of the 2nd plaintiff against the defendant.

iv. Whether the suit is barred by limitation and for want of notice under section 10 of the Carriers Act.

v. Whether the plaintiffs are entitled for the suit claim.

vi. To what relief?

6. The trial Court, based on the pleadings as well as the material evidence available on record, held the issues in favour of plaintiffs and decreed the suit for Rs.1,95,760/- with costs; interest is granted at 6% per annum from the date of suit till the date of realisation. Aggrieved thereby, this Appeal by the Appellant/Defendant.

7. Heard Sri Srinivas Chitturu, learned counsel for the Appellant/defendant and Sri Kota Subba Rao, learned Counsel for the Respondents and perused the record.

8. It is to be noted that on the issue of negligence, defendant is, admittedly, a carrier governed by the Carriers Act, 1865 (for short the Act) , as on the date of cause of action ie. 18.10.1988, on which date the goods were entrusted to defendant and the subsequent date on which the damaged goods were received, the matter stands governed by the Act. The Carriage by Road Act, 2007, which was brought into force on 29.09.2007 by which Carriers Act, 1865 was repealed, has therefore, no application.

9. It is relevant to note that according to Section 9 of the Carriers Act, in any suit brought for damages or non-

delivery of goods, entrusted to a carrier for transportation, it is not necessary for plaintiff to prove that such loss or damage was owing to the negligence of th