IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 AS.No. 313 of 1999(C) --------------------- OS.131/1995 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANTS/ DEFENDANTS 1 TO 3 -------------- 1. M/S. WESTERN CARRIERS, 67/28, STRAND ROAD, CALCUTTA- 700 006, REP. BY ITS REGIONAL MANAGER, S.L.JAIN MADRAS REGION. 2. M/S. WESTERN CARRIERS, REGIONAL OFFICE 89, N.S.C. BOSE ROAD, MADRAS - 600 079, REP. BY ITS REGIONAL MANAGER, S.L. JAIN 3. M/S. WESTERN CARRIERS, BRANCH OFFICE, MATTANCHERRY, KOCHI - 682 002, REP. BY KOCHI BRANCH MANAGER, K.SIVANANDA BHAT. BY ADV. SRI.T.A.NARAYANAN NAIR SMT.SREEDEVI NAIR RESPONDENTS/PLAINTIFFS & 4TH DEFENDANT --------------- 1. M/S. ANNAL ALUMINIUM VESSALS, KIZHAKKAMBALAM P.O., ALUVA, REP. BY THEIR POWER OF ATTORNEY HOLDER, M/S. NEW INDIA ASSURANCE CO. LTD, NEW INDIA ASSURANCE BUILDING, 87, M.G. ROAD, FORT BOMBAY. 2. M/S. NEW INDIA ASSURANCE CO. LTD, NEW INDIA ASSURANCE BUILDING, 87, M.G. ROAD, FORT BOMBAY REP. BY ITS DIVISIONAL MANAGER, KADAVANTH SHOPPING COMPLEX, SUB JAIL ROD, ALUVA 3. M/S. BHARATH ALUMINIUM CO. LTD, BALCO TOWNSHIP P.O., KORBA DISTRICT, BILASPUR (M.P.) 495 684. M/S ANNAALUMINIUM VESSELS,PARTY M/S NEW INDIA ASSURANCE CO LTD/PARTY M/S BHARATH ALUMINIUM CO LTD,PARTY SRI.JOSEPH VADAKKEL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.313 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of May , 2011 JUDGMENT Challenge in this appeal by defeated defendants 1 to 3 is to the decree and judgment of Principal Sub Judge, North Paravur dated February 27, 1998 granting a decree for recovery of Rs.61,155/- with interest and cost in favour of the respondents/plaintiffs against appellants/defendants 1 to 3 being the value of the goods damaged in transit. 2. The first plaintiff/first respondent is M/s.Anna Aluminium Vessels carrying on business at Kizhakkambalam. PW2 is the General Manager of the said company. The second plaintiff is the New India Assurance Company. PW1 is the Administrative Officer of the said company. Plaintiffs filed the suit against the appellants/defendants 1 to 3 claiming damages to the tune of Rs.61,155/- alleging that the aluminium CRP sheets consigned by third respondent/fourth defendant to first respondent/first plaintiff through appellants were delivered in a A.S.No.313/1999 2 damaged condition. 3. The case of the respondents/plaintiffs as testified by Pws 1 and 2 and as detailed in the plaint in brief is this: The first plaintiff company purchased from fourth respondent company CRP sheets having a net weight of 6.893 metric tons and gross weight of 6.947 M.Ts. worth Rs.3,50,139.80 as per Ext.A1 invoice debit note dated February 1, 1992. The consignment was entrusted to the defendants 1 to 3 carriers on February 1, 1992 in a good condition from Korba in Madhyapradesh to give delivery to first respondent company at Kizhakkambalam. Ext.A2 is the Despatch Bill dated February 1, 1992 and Ext.A3 is the consignment note dated February 1, 1992. The carriers delivered the goods on February 9, 1992. But the packing of the goods were seen torned and 293 numbers of sheets weighing 625 Kg. were delivered in a dented and folded condition. On demand by the first plaintiff, second defendant issued Ext.A4 an open/damage declaring certificate on July 7, 1992 showing the extent and quantum of damages. Thereafter, PW3, an independent Surveyor conducted the survey and filed his report Ext.A4. He found A.S.No.313/1999 3 the total weight of the damaged aluminum sheets as 1750 Kgs. Plaintiffs assessed the value of it as Rs.63,000/-. Though the first plaintiff filed the claim Ext.A6, the defendants 1 to 3 did not pay the amount. The consignment was insured with second plaintiff/Insurance Company by an open policy. Therefore, first plaintiff settled the claim with second plaintiff for Rs.61,155/-. On settlement of the claim, first plaintiff executed Ext.A10 letter of subrogation and Ext.A11 Special Power of Attorney in favour of the second plaintiff. The suit is filed for recovery of the said amount. 4. The appellants/defendants 1 to 3 resisted the suit raising the following contentions : The suit is hit by Section 69(2) of the Indian Partnership Act as the registration certificate of the first plaintiff firm was not produced. No notice as contemplated under Section 10 of Carriers Act was issued. The goods were delivered in a good condition. The damage certificate will not amount to admission or acceptance of damage. The Surveyor report is not binding on defendants 1 to 3 as no notice was given to the defendants 1 to 3 before inspection of the surveyor. Defendants 1 to 3 A.S.No.313/1999 4 prayed for the dismissal of the suit. 5. Pws 1 to 3 were examined and Exts.A1 to A12 were produced by the plaintiffs. No evidence was adduced by the defendants. The lower court on an appreciation of evidence found that the plaintiffs are entitled to the amount claimed in the plaint from the defendants 1 to 3 and granted a decree as prayed for. Defendants 1 to 3 have now come up in appeal challenging the said judgment and decree. 6. Heard the counsel for the appellants. Though notice was served on the respondents/plaintiffs, no one entered appearance. 7. Counsel for the appellants/defendants 1 to 3 argued that the suit is hit by Section 69(2) of the Partnership Act as the plaintiffs did not produce the registered partnership deed of first plaintiff firm, that the report of the Surveyor is not binding on the defendants as no notice was issued by the Surveyor to the defendants 1 to 3 before inspection and that the goods were delivered in good condition. 8. The following points arise for consideration : 1. Whether the suit was hit by Section 69(2) of Partnership Act ? 2. Whether the judgment and decree of the lower court can be sustained ? A.S.No.313/1999 5 9. Plaintiff examined PW s 1 to 3 and produced Exts.A1 to A12 to prove their case. PW1 is the Administrative Officer of second plaintiff Insurance Company. PW2 is the General Manager of the first plaintiff company. PW3 is the licenced Surveyor who assessed the damage. Exts.A1 is the Invoice/consignment debit advice dated February 1, 1992. Ext.A2 is the Despatch bill dated February 1, 1992. Ext.A3 is the Consignment Note of the said date. Ext.A4 is the Damage certificate dated February 7, 1992 issued by the second defendant. Ext.A5 is the Marine Survey report prepared by PW3. Ext.A6 is the copy of the claim made by the first plaintiff to the defendants 1 to 3 dated March 7, 1992. Ext.A8 is the Marine Declaration form and Ext.A9 is the receipt in favour of the second plaintiff. Ext.A10 is the Subrogation deed executed by the first plaintiff in favour of the second plaintiff. Ext.A11 is the Special power of attorney executed in favour of second plaintiff by the first plaintiff. Ext.A12 is the copy of the lawyer notice dated October 21, 1997 sent by the first plaintiff to the defendants 1 to 3. 10. The evidence of PW s 1 to 3 coupled with Exts.A1 to A12 A.S.No.313/1999 6 prove beyond doubt the fact that first plaintiff company purchased CRP Aluminum sheets having a net weight of 6.947 M.tons and a gross weight of 6.893 M.tons worth Rs. 3,50,139.80 from fourth defendant company, that the consignment was entrusted with the Carriers- defendants 1 to 3 for safe carriage from Korba, Madhya Pradesh to the first plaintiff at Kizhakkambalam, Aluva. According to the first plaintiff, when the goods were delivered, it was found damaged. Ext.A4 open delivery certificate issued by the second defendant shows that 1750 Kgs. of Aluminum sheets were found damaged. PW2 the General Manager of the first plaintiff company testified that PW3 the licenced surveyor assessed that out of 27 bundles, 14 were found damaged having a value of Rs. 1,27,908/-. The salvage value was assessed at Rs. 63,000/-. Though PW2 laid the claim before the third defendant, they did not pay the amount. Therefore, they settled the claim with the second plaintiff Insurance Company for Rs. 64,153/- as the goods were insured with the second plaintiff company by an open policy Ext.A8. The first plaintiff company issued the letter of subrogation Ext.A10 and Special power of attorney A.S.No.313/1999 7 Ext.A11 in favour of the second plaintiff. Second plaintiff has now claimed the said amount from defendants 1 to 3. 11. Counsel for the appellants/defendants 1 to 3 argued that plaintiffs have not proved that any damage was caused to the goods and that the goods were delivered in a good condition. There is no merit in the above contention. The evidence of PW s 1 to 3 and Exts.A5 open delivery certificate issued by the second defendant prove beyond doubt that out of the Aluminum sheets, 1750 Kgs. were found damaged. The appellants have no case that second defendant did not issue any such certificate. Therefore, it is proved that out of the goods purchased and delivered by the defendants company, those shown in Ext.A4 are damaged. 12. It was next contended by the counsel for the appellants that the exact damage caused is not proved by the plaintiffs and that Ext.A5 Surveyor report prepared by PW3 is not binding on them as no notice was given to the defendants before inspection by PW3. There is no force in the above contention. PW3, the Surveyor has testified that he has informed the defendants about the date of inspection, but nobody A.S.No.313/1999 8 turned up. No evidence was adduced by the defendants to deny the same. In Ext.A5, PW3 has shown the entire details of the articles damaged. Counsel for defendants was not able to show that the damage assessed by PW3 was excessive or exorbitant. Therefore, the lower court is justified in accepting Ext.A5. 13. Counsel for the appellants/defendants 1 to 3 argued that no document is produced by the plaintiffs to show that first plaintiff is a registered partnership firm and that therefore the suit is hit by Section 69(2) of Partnership Act. There is no substance in the above contention. Section 69(2) of the Partnership Act provides thus : “ No suit to enforce a right, arising from a contract, shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.” 14. But in this case, PW1 has testified that first plaintiff firm is a registered Partnership firm. In Ext.A10 subrogation deed and Ext.A11 power of attorney, it is stated that first plaintiff is a registered partnership firm. No contra evidence was adduced by the defendants 1 to 3. Therefore, in the absence of any evidence on the part of the A.S.No.313/1999 9 contesting defendants, I am inclined to accept the evidence of PW2 and Exts.A10 and A11 and hold that first plaintiff is a registered partnership firm. Therefore, the suit is not hit by Section 69(2) of the Partnership Act. No other point is argued before me. That being so, the decree passed by the lower court has to be confirmed and the appeal has to be dismissed. In the result, the appeal is dismissed. The parties shall suffer their respective costs. P.Q.BARKATH ALI JUDGE sv. A.S.No.313/1999 10