IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1007 of 1992. SUIT NO.1007 of 1992. SUIT NO.1007 of 1992. 1. M/s. Larsen & Toubro Ltd. a limited company registered under Companies Act and having their Registered office at "L & T House" Ballard Estate, Bombay 400 038 2. M/s. New India Insurance Co. Ltd. a body Corporate, subsidary of the General Insurance Corporation of India having their registered office at 87, M.G.Road, and one of their Tied Unit No.120400 at Maker Chamber III, Nariman Point, Bombay 400 021 ..Plaintiffs versus M/s. Shakti Transport Pvt. Ltd. carrying on business as common carriers and having their office at Navrattan, 4th floor, Office No.2, 69 P.D’Mello Road, Carnac Bunder, Bombay 400 009 ..Defendant Ms.S.S.Dwivedi i/b. V.S.Amin & Co. for the Plaintiffs None for the Defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 19th November, 2008. DATED : 19th November, 2008. DATED : 19th November, 2008. JUDGMENT JUDGMENT JUDGMENT -2- . The plaintiffs have instituted this suit for recovery of Rs.2,38,965/- along with interest at the rate of 18% per annum from the date of filing of the suit till realisation. 2. The plaintiff No.1 had booked the cargo with the defendants being Broad Guage Milk Tanker No.14 from Bombay to be carried to Burnpur and that the defendants accepted the same and issued Consingment Note No.53374 which is at Exhibit P-1. Freight charges were agreed to be paid to defendants. The said consignment was put on trailer bearing No.AMN 2897 and that the said goods came to be damaged in the course of an accident which took place on 20.8.1989 during transportation. On account of the accident, plaintiffs lost the said goods, in as much as the same could not be reused by the plaintiffs. The plaintiffs, for the purpose of ascertaining the extent of the damage caused to the goods had appointed M/s.Ramanlal K. & Co. as surveyor and the said M/s. Ramanlal K. & Company gave their survey report which is at Exhibit P-3 and certified that the plaintiffs have suffered damage to the -3- tune of Rs.1,89,250/-. The surveyors have also mentioned in the report that the sum of Rs.46,000.- was claimed for bringing back the damaged consignment from Burnpur to Bombay and that the surveyor had certified the said amount as reasonable. With these facts, the plaintiffs have claimed damages to the extent of Rs.2,38,965/-. According to the plaintiffs defendants had issued a Damage Certificate which is at Exhibit P-2 and that the plaintiffs had lodged the claim as per the provisions of Section 10 of the Carriers Act vide letter dated 11.1.1990 which is at Exhibit P-4 colly. The said notice was duly received by the defendants and A.D.Card is before the Court at Exhibit P-4 colly. 3. According to the plaintiffs, as the goods were duly insured with the plaintiff No.2, andthe plaintiff No.2 paid to the plaintiff No.1 sum of Rs.2,38,965/- and satisfied the claim of plaintiff No.1 and in return plaintiff No.1 executed letter of Subrogation at Exhibit P-5 and also executed Power of Attorney in favour of plaintiff No.2 which is at Exhibit P-6. Accordingly, plaintiff Nos.1 and 2 have filed this suit for damages as mentioned -4- aforesaid. 4. The defendants have contested the suit by filing written statement and have raised various contentions. The defendants have denied their liability and according to them the goods were not booked with the defendants. According to them the notice under the Carriers Act is also not been given and that the accident which is said to have been taken place on 20.8.1989 was an unforeseen event and that it was fortuitous and unavoidable event. According to the defendants a car No.MMH 2365 was responsible for the accident and that defendants were not negligent and therefore they are not liable. According to the defendants, the goods were to be carried with conditions, namely Company i.e. defendants are not responsible for the loss or damage by the accident to the vehicle by which the goods are transported and that the goods are to be carried entirely at the owners risk and that the transaction is not subject to the provisions of Carriers Act, 1865. It was also the stand of the defendants that the defendants had reserved right to refuse or reject any booking of goods without assigning any reason whatsoever. It -5- was also the stand of the defendants that this Court has no jurisdiction tp entertain the claim of the plaintiffs. 5. On the basis of the pleadings as aforesaid, following issues came to be framed on 6.8.2008. My answer to each of the issue is mentioned against the respective issue. Issues Issues Issues i) Do the plaintiffs prove that the defendants were negligent in transporting the milk tanker entrusted with the defendants for transporting it from Bombay to Burnpur? ...In the affirmative In the affirmative In the affirmative. ii Do the plaintiffs prove that the defendants, on account of negligence exhibited by the employee of the defendants caused damage to the milk tanker thereby causing loss to the plaintiff to the tune of Rs.2,32,965/-? ...In the affirmative. In the affirmative. In the affirmative. iii) Do the plaintiffs prove that -6- plaintiff No.2 is properly subrogated in place of plaintiff No.1 so as to file present suit and recover damages? ...In In In the affirmative. the affirmative. the affirmative. iv) Do the plaintiffs prove that they are entitled to recover from the defendants Rs.2,38,965/- along with interest as prayed for? ..In the affirmative. In the affirmative. In the affirmative. v) Do the defendants prove that the accident took place on the highway on 20.8.1989 on account of unforeseen, fortuitous and unavoidable circumstances and as such defendants are not liable to pay to the plaintiffs? ..In the negative. In the negative. In the negative. vi) Do the defendants prove that the suit is bad for want of notice under Section 10 of the Carrier’s Act, 1865? ...In the negative. In the negative. In the negative. vii) Do the defendants prove that this Court has no jurisdiction to try and entertain the present suit? ...In the ...In the ...In the -7- negative. negative. negative. viii) What Order? ...As per the As per the As per the operative part. operative part. operative part. 6. At the stage of recording of evidence Mr. S.Balasubramanium, Asst. Manager of Plaintiff No.2 gave evidence. No other witness was examined on behalf of the plaintiffs. No witness was examined on behalf of the defendants. 7. I have gone through the entire record and heard arguments advanced by learned Advocate Ms. Dwivedi. It was submitted on behalf of learned Advocate for the plaintiffs that document at Exhibit P-1 is the goods consignment note which would go to show that the goods were entrusted with the defendants. My attention was also drawn by the learned advocate for the plaintiffs that the stand taken by the defendants that the goods were to be carried at owner’s risk would go to show that the goods were entrusted with the defendants. 8. Defendants claim that the accident took place not on account of negligence on the part of -8- the defendants, but on account of the car No.MMH 2465 and that the accident was unforeseen, fortuitous and unavoidable event, it was submitted by learned Advocate Ms. Dwivedi that the burden so far as this aspect is concerned was on the defendants and since there is no cross examination to the witness on behalf of the plaintiff and since no witness was examined on behalf of the defendants, the stand of the defendants that the accident took place on account of negligence of some vehicle is not proved and to that extent the stand of the defendants should not be accepted. 9. Learned Advocate Ms. Dwivedi drew my attention to the document at Exhibit P-4 being letter dated 11.6.1990 which is in her submission a notice under Section 10 of the Carriers Act. The said letter is notice under Section 10 of Carriers Act. The notice has been given within six months from the date of accident, the said notice binds the defendants and therefore the plaintiffs have complied with the provisions of the Carriers Act. According to her once the goods have been accepted by the defendants for transportation, it would not lie in the mouth of the defendants that the -9- provisions of Carriers Act are not applicable. 10. It was also submitted by the learned Advocate for the plaintiffs that the stand of the defendants that the goods would be carried at the owners risk just can’t be accepted because the goods were entrusted with the defendants in accordance with the provisions of Carriers Act, in any case such a stand cannot be accepted when defendants have accepted the goods for transportation. She has therefore submitted that the defendants have not come out with appropriate material to dislodge the claim. 11. Learned Advocate Ms. Dwivedi submitted that the surveyors who carried out survey had given report at Exhibit P-3 and that the said report has gone unchallenged and therefore the damage estimated by the surveyor is the one which the plaintiffs have suffered and to that extent the plaintiffs are entitled to compensation and therefore the Court should pass decree in favour of the plaintiffs particularly because the report of the surveyor has gone unchallenged. -10- 12. Learned Advocate Ms. Dwivedi further submitted that since the goods were booked as manifested in the consignment note, the part of cause of action has arisen in Bombay and that the defendants have their office at Bombay and therefore this Court has jurisdiction to try and entertain the present suit. 13. Learned Advocate Ms. Dwivedi submitted that the letter of Subrogation at Exhibit P-5 as well as the Power of Attorney P-6 are the documents which gave authority to plaintiff No.2 to institute suit along with the plaintiff No.1 as consignor and that is how the suit is maintainable and that the suit should be decreed as prayed for. 14. I have considered the submissions made by learned Advocate Ms. Dwivedi. I have perused the necessary record and exhibits. I am inclined to accept each and every contention advanced by the learned Advocate for the plaintiffs for the purpose of grant of damages to the plaintiffs. It is required to be observed that defendants have not remained present in the Court at the stage of recording of evidence and the evidence given by the -11- plaintiffs witness Mr. Balasubramanium has gone unchallenged. The defendants have not stepped into the witness box and have not discharged the burden cast upon them to show the negligence of the driver of the Car No.MMH 2465. If this is the position, the plaintiffs have been able to make out a case so as to seek compensation as prayed for. 15. The surveyor’s report having gone unchallenged, I am inclined to accept the same and as such I am of the view that the plaintiffs are entitled to compensation and the same be fixed at Rs.2,38,965/-. 16. So far as the interest prayed is concerned, the plaintiffs have claimed interest at the rate of 18% per annum and that the same is claimed from the date of filing of the suit. There is no evidence coming on record so as to justify the interest at the rate of 18% per annum. Considering the nature of the transaction and the year in which the transaction has taken place, namely 1989, if the interest at the rate of 12% is granted to the plaintiffs, it would meet the ends of justice. -12- 17. For the reasons mentioned aforesaid, I pass the following decree: DECREE i. Defendants do pay to plaintiffs Rs.2,38,965/- (Rupees Two lakhs Thirtyeight Thousand Nine Hundred Sixty Five Only). ii. Defendants do pay to plaintiffs interest on Rs.2,38,965/- at the rate of 12% per annum from the date of filing of the suit till realisation. iii. Defendants do pay to plaintiffs cost of this suit. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)