IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD SATURDAY, THE THIRTIETH OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No. 145 OF 2003 BETWEEN: M/s Economic Transport Organization, represented by its Regional Manager …APPELLANT AND The New India Assurance Company Limited and another …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No. 145 OF 2003 JUDGMENT: (Per Hon’ble Sri Justice N.R.L. Nageswara Rao) The defendant in O.S.No.338 of 1998 on the file of II Member, Tribunal for Disciplinary Proceedings-cum-VII Additional Chief Judge, City Civil Court, Hyderabad is the appellant herein. 2. The suit was filed for recovery of Rs.8,47,189/-. 3. The allegations in the plaint are that the 2nd plaintiff has sent a consignment of 584 cases of Bestozyme-30ml and 125 cases of Bethodoxng-12: 220ml., bottles worth Rs.14,00,000/- packed in a cardboard cartoons from Hyderabad to Muzaffarpur and the defendant is the carrier of the said goods. The said goods were insured by the 2nd plaintiff with the 1st plaintiff. The consignment was damaged during the transit and the 2nd plaintiff preferred a claim against the defendant on 02.06.1995. As the said amount was not paid by the defendant, the claim was settled for a sum of Rs.8,47,189/- towards the damages as assessed by the Surveyor and was paid by the 1st plaintiff to the 2nd plaintiff. In pursuance of the subrogation agreement, the 1st plaintiff has become entitled to recover the same. The defendant has not paid the same and hence the suit. 4. The defendant filed a written statement and also additional written statement. According to the defendant, the consignment was booked at owner’s risk. The policy given by the 1st plaintiff is admitted. The consignment was loaded at the 2nd plaintiff’s factory on 29.04.1995 and they did not reach the destiny till 30.05.1995 and the defendant gave a complaint to the police. A theft occurred and the property was damaged and lost, which is beyond the control of the defendant. There is no negligence on the part of the defendant in transportation of the goods. The defendant is therefore not responsible for any of the loss or damage. 5. By filing additional written statement, it was pleaded that the transit contract between the 1st plaintiff and the defendant is subject to the terms and conditions of the special contract entered into between them. As per Clause 10 of the said contract dated 10.04.1995, there is no liability due to theft or accident. The 2nd plaintiff is also aware of the said contract. The 1st plaintiff therefore should not have paid the amount to the 2nd plaintiff, as such, the suit is liable to be dismissed. 6. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the 1st plaintiff is entitled for Judgment and decree for a sum of Rs.8,47,189/- under the deeds of subrogation executed by the 2nd plaintiff in favour of the 1st plaintiff and against the defendant? 2) Whether the special contract dated 10.04.1995 entered into between the 2nd plaintiff and the defendant are true, valid and binding on the 1st plaintiff? 3) Whether the non-delivery of consignment to the consignee was due to theft as contended by the defendant? 4) Whether the consignments in question were booked at owner’s risk and the 1st plaintiff alone is responsible and liable to settle the claim since the consignments were covered by Marine policy? 5) Whether there is cause of action to file the above suit? 6) To what relief? 7. On behalf of the plaintiffs, PW.1 was examined and marked Exs.A.1 to A.24. On behalf of the defendant, DW.1 was examined and marked Ex.B.1. 8. After considering the evidence on record, the learned II Member, Tribunal for Disciplinary Proceedings-cum-VII Additional Chief Judge, City Civil Court, Hyderabad, decreed the suit of the plaintiff for Rs.8,47,189/- with interest at 6% per annum from the date of filing of the suit till the date of realisation. Aggrieved by the said judgment and decree, the present appeal is filed. 9. The points that arise for consideration are: 1) Whether the defendant is not liable for the damages of the goods and the loss suffered by the 2nd plaintiff and not liable to reimburse the 1st plaintiff for payment of the insured amount? 2) Whether the judgment and decree passed by the learned II Member, Tribunal for Disciplinary Proceedings-cum-VII Additional Chief Judge, City Civil Court, Hyderabad is legal and sustainable? 10. POINTS: In this case there is not much dispute between the parties about the appellant being common carrier and the goods were booked for transportation. The fact that the property was lost in the transit is also not in dispute. The appellant claims that the goods were transported at owner’s risk and this plea is not acceptable in view of the fact that there is nothing on record to show that the term was consciously accepted by the parties and the lower Court has given reasons and rejected the same. In fact touching on this aspect, the learned counsel for the appellant could not show as to how the risk is absolved. DW.1 clearly admitted that the lorry owner gave a complaint at Calcutta about the missing of the commodities and the commodity was partly traced. The fact that the police complaint was given with regard to the theft is therefore established. In fact, Ex.A-10 is a certificate dated 01.06.1995 issued by the appellant confirming non-delivery of the goods at Muzaffarpur. Ex.A.11 is the letter dated 31.05.1995 addressed by the defendant about the loss, which has preceded Ex.A- 10 certificate. Ex.A.15 is another letter dated 05.06.1995, whereunder the appellant has disowned the liability on the ground that the consignment was booked with owner’s risk. It is important to mention that in the above correspondence no special contract exonerating the liability of the defendant under Ex.B.1, which is now set up. 11. The learned counsel for the appellant contends that Ex.B.1 is the contract between the appellant and the 2nd plaintiff with regard to the transport of the goods and the relies upon the clause No.10 which is as follows: “In case of any accident or theft during transportation we shall provide the following documents to the Company, within a week from the time of accident or theft: A. First Information Report, in duplicate, filed with the police. B. Two copies of panchanama. C. A letter giving full details of accident or theft such as, location, nature of accident, etc. D. Two or Three photographs, if possible. E. Insurance Survey Report, in duplicate. And also clause No.6 which is as follows: “All claims preferred on us by the Company pertaining to shortages, breakages and delays will be settled by us within 30 days from the date of the claim, failing which the company has authority to deduct the same from the bills payable to us”. A reading of both these clauses definitely will not show that there was a special contract between the 2nd plaintiff and the defendant exonerating the liability in case of theft or accident. A plain reading of clause No.10 clearly shows the responsibility of the appellant to supply the documents referred to therein in case of any accident or theft. Clause No.6 only deals with the claims for shortages, breakages etc., will be settled within 30 days. Therefore, the contention of the appellant that under clause 10 referred to above, there is a special contract with the 2nd plaintiff cannot be accepted. In fact, the policy of Insurance clearly covers the negligence and also the theft. The theft or the robbery cannot be said to be acts, whereunder the risk is not recovered. Even from the evidence of DW.1, it is quite clear that Ex.B.1 is only a letter issued by this 2nd plaintiff to the defendant and it is not an agreement, does not contain the initials of the staff of the defendant and it also does not contain the signature of the 2nd plaintiff. From his evidence, there is nothing to show that the parties have agreed for the alleged terms in Ex.B.1 even if it is proposed document. So far as the loss is concerned, the evidence of DW.1 does not disclose that there is any dispute about the same. 12. The learned counsel for the respondent relied on a decision reported in M/s. Globe Transport Corporation, Bangalore Vs. National Insurance Company Ltd., office at Bank Street, Hyderabad and another[1], whereunder the provisions of Sections 8 and 9 of Carriers Act were considered and the entitlement of the 1st plaintiff to recover the amount was considered. 13. The learned counsel also relied on a decision reported in M/s. Economic Roadways Corpn., Hyd., Vs. National Insurance Co., Hyd., & Anr.,[2] wherein it was held that even without producing the surveyor as evidence when the report of the surveyor is not seriously disputed, the certificate can be taken into consideration. He also relied upon a decision reported in Kerala Transport Co. Vs. Kunnath Textiles[3], wherein it was held that even in cases of special clauses restraining absolute liability of the carrier in the absence of precautions to prevent the negligence or the loss the liability is not lost. He also relied on a decision reported in Prakash Road Lines (P) Ltd., and another Vs. H.M.T. Bearing Ltd.[4] wherein it was held that under Section 9 there is no need to prove the negligence by the plaintiff and incidentally considered the scope of transport at owner’s risk. Carriers Act, 1865, section 9 – Common carrier- Owner’s risk-Goods given for transportation were lost in fire and consignor filed suit for damages – Contention that goods were transported at owner’s risk and the consignor cannot claim any damages – Printed form of lorry receipt shows that goods are transported at carrier’s risk, but the word ‘carrier’ as printed was struck off and the word ‘owner’ was written- No evidence whether this modification in the lorry receipt was brought to the notice of the consignor and it was accepted- Whether goods were carried at owner’s risk and the consignor is not entitled to claim damages – Held: no. Carriers Act, 1865, section 9 – Common carrier – Liability of carrier – Goods entrusted to carrier for transportation were destroyed in fire in the godown of the carrier at the destination station – Contention that goods were safely transported to the destination station but the consignor/consignee failed to collect the same within a reasonable period – No distinction for liability under the Act in respect of goods that are lost/damaged in transit or while they are in the custody of the carrier before delivery after the goods reach the destination – Whether common carrier can escape its liability on the ground that the goods were not collected within a reasonable time- Held: no. Carriers Act, 1865, section 9 – Common carrier – Negligence – Carrier contended that there was no negligence on its part as fire broke out accidentally during the night and goods were damaged in the godown for which it is not responsible – Whether the common carrier is exempted from its liability to pay damages – Held: no; proof of negligence is not sine qua non for claiming damages by the consignor in case of loss or damage to the goods transported by a carrier. 14. Therefore, when the property was lost by theft the plea of the appellant that it is beyond control cannot be accepted. There is nothing on record to show that immediately after the theft sufficient action was initiated and steps were taken. Therefore, for all the above reasons, we hold that under Ex.B.1, there is no special contract exonerating the liability of the appellant and the lower Court has rightly considered the claim of the plaintiff and tried perspective and facts and decreed the suit. There are no grounds to interfere with the judgment and decree of the lower Court. Accordingly points are answered. 15. In the result, appeal is dismissed with costs. ______________ V.ESWARAIAH, J _________________________ N.R.L.NAGESWARA RAO, J Date: 30-04-2011. INL [1] 1989(1) ALT 373 [2] 2002(1) L.S. 128 (D.B.) [3] 1984 A.C.J. 440 [4] 2001 ACJ 40