1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Jagdish Goods Transport Company Vs. United India Insurance Company Ltd. & anr. S.B. CIVIL FIRST APPEAL NO.16/1992. UNDER SECTION 96 OF THE CPC. DATE OF JUDGMENT: 9th September, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr. Trilok Chand Vyas for the appellant. Mr. Rizwan Ahmed for the respondent. BY THE COURT: This civil first appeal has been filed by appellant- defendant no.1 Jagdish Goods Transport Company, New Mandi, Bharatpur against the judgment and decree dated 1.11.1991 in Original Suit No.32/1986 (United India Insurance Company Vs. Jagdish Goods Transport Company) passed by the learned Additional District Judge No.2, Bharatpur. The suit filed by the plaintiff United India Insurance Company (here-in- after to be referred as 'the insurance company') was decreed as prayed for. Aggrieved by the same, defendant Transport Company which acted as a common carrier has come forward with this appeal. 2 The second defendant M/s Dalmia Dairy Industries Ltd. (pro-forma respondent) booked a consignment of Sapan brand milk powder. In all 500 cartons were loaded in the truck no. RSD 1185 at Bharatpur and in each of the carton 30 packets, each of the packet containing 400 grams of milk powder. The consignment was to be delivered at Patna. The defendant issued a receipt no.5556 dated 27.8.1981 in relation to consignment. The receipt was signed by both, namely; consignor as well as the defendant transporter. The receipt indicates that the goods were being carried at owner's risk and the company was not responsible for any shortage, damage etc. The consignment, however, did not reach at the destination as the above truck met with an accident on way to Patna, as a result of which, in all 206 cartons containing milk powder were completely damaged. The description of damage caused has been detailed in para 6 of the plaint, in all amounting to Rs.55682.72, which reads thus: Sr.No. Details Amount (a) 200 cartons damaged, each cargon was containing 30 packets of milk powder, each packet weighing 400 gms. The price of each packet was @ Rs.5/- Rs.30,000 (b) Excise duty @ 15% Rs. 4,500 (c) Special Excise duty @ 5% on 15% Rs. 225 (d) Cost of packaging @ Rs.47.40 per carton Rs. 9,480 (e) Excise duty @ 15% on cost of packaging Rs. 1,422 (f) Special excise duty @ 3% on 15% Rs. 71.10 Total Rs.45,698.10 Transportation charges Rs. 9,139.62 Survey fee Rs. 845 TOTAL Rs. 55,682.72 3 The goods were insured and that is not in dispute. The surveyor Arun Kumar Jaju in his report No.401-M-1541 dated 13.11.1981 assessed the damages to Rs.55,682.72. A letter/notice Ex.-4 was sent to defendant no.1 by pro-forma respondent to make payment in relation to damage of Rs.78,538.80. Ex.-4 was received by defendant. The signature of defendant no.1 is available on Ex.-4 at place 'A' to 'B' and of Deshraj for the transport company at place 'C' to 'D'. The defendant also issued certificate in relation to the loss caused to proforma respondent M/s Dalmia Dairy Industries, the consignor. As per the certificate issued by the defendant no.1 (Ex.-3) the total loss was of Rs.78,240/-. Since the consignment was insured with the plaintiff-insurance company, the damage to the extent of Rs.55,682.72 was paid by the insurance company to proforma-respondent Dalmia Dairy Industries Ltd., Bharatpur and they authorised the plaintiff- insurance company to recover the amount of damages paid by them from defendant no.1, Transport Company, and in that regard proper documents were executed. Since the defendant no.1 declined to pay the damages claimed, therefore, it became essential to file the suit for damages. A prayer was made to decree the suit for Rs.55,682.72 along with interest @ 15% per annum from the date of filing of the suit till the amount is recovered. 4 In the written statement filed by the defendant- appellant it has been denied in para 1 of the written statement that the plaintiff was competent to file the suit through its Divisional Manager/ Assistant Divisional Manager. It is the stand that as regards damages claimed by the defendant no.2 and paid by plaintiff on account of consignment being insured, it was the responsibility of the plaintiff as the goods were insured. It was also pleaded that the defendant was not a common carrier and in fact goods were taken under the special contract and the truck in which the goods were loaded was not of his company. As regards issuance of certificate Ex.-3 by him in relation to damages is concerned, it was stated that the same was issued on the request of defendant no.2, the consignor. It was also stated that the suit was barred by limitation and the court had no jurisdiction in view of the provisions of Section 110 of the Motor Vehicles Act. It was also averred in the written statement that since the goods were booked at the risk of the owner, therefore, the plaintiff was not entitled to recover any amount and further that there was no privity of contract between the plaintiff and the defendant no.1, therefore, the suit was liable to be dismissed. The defendant no.2- M/s Dalmia Dairy Industries by filing written statement admitted all the contents of the plaint and prayed to pass a decree against the defendant no.1. 5 On the basis of pleadings of the parties, learned counsel for the trial court framed as many as 12 issues including relief. The learned trial court vide its order dated 25.3.1987 decided issue no.7 in favour of the plaintiff and against the defendant. Issue no.7 was in relation to non- maintainability of the suit and the suit was not filed before competent forum, the Motor Accident Claims Tribunal. The learned trial court finding that in the proviso appended below section 110(1) of the Motor Vehicles Act, 1939 provides for the choice of the claimant to file a claim either before the Tribunal or before the civil court. In this regard, learned trial court placed reliance on the decision of this court in the case of R.S.R.T.C. Vs. Virendra Kumar Singh- 1985 RLR 327 wherein at paragraph 12 it has been observed that 'on reading of sub- section (1) of Section 110 and 110-A of the read together, the position which emerges out is that a claim in respect of the damages to the property falls within the jurisdiction of Claims Tribunal provided the damage is the result of accident and the accident is of the nature mentioned in section 110 of the Act. Of course, if the compensation claimed in respect of the damges to the property exceeds Rs.2000/-, the claimant has an optioin to go to Civil Court instead of coming under the Act before the Claims Tribunal. This finding has not been challenged at the time of argument. 6 In support of its case, the plaintiff examined PW-1 S.P. Gupta and PW-2 Vikram Singh, the employees of the insurance company and tendered some documents. The defendant no.1 examined Deshraj as DW-1 and produced no document. The learned trial court after hearing submissions of both sides, decreed the suit as indicated above. I have heard learned counsel for the appellant as well as learned counsel for the respondent and carefully perused the impugned judgment and the material available on record. It has been the contention of the learned counsel that the suit has been filed by an unauthorised person, therefore, the suit was liable to be dismissed. It is also contended that the court committed illegality in deciding issue no.2 in relation to common carrier against the appellant. It has also been contended that there was no privity of contract between the plaintiff and defendant no.1, therefore, the suit was liable to be dismissed. It is also contended that the suit filed was not within limitation. On the other hand, it has been contended that there is enough material to prove that the suit has been filed by a competent person and the defendant no.1 was responsible for the damages caused while the goods were in transportation as the defendant no.1 is a common carrier and he cannot escape his responsibility simply by making a denial or on the basis of 7 plea that there was no privity of contract between the parties. I have carefully considered the above submissions. In the present matter, the points for determination are: (1) Whether the plaintiff's suit was maintainable and has been filed by an authorised person on behalf of the insurance company; (2) Whether the trial court has committed illegality in decreeing the suit against the defendant; (3) whether on account of the plea raised in the written statement that there was no privity of contract between the plaintiff and defendant, therefore, the plaintiff is not entitled to make recovery as claimed in the suit and the judgment and decree passed by the trial court should be set aside. Now, I propose to examine the points framed by me. Since all the points framed by me above are interconnected, therefore, they are being decided together. It is to be seen that in reply to para 1 of the written statement, the defendant has admitted that the plaintiff is insurance company but this fact has been denied that the plaint was filed by an authorised person, therefore, the suit was not maintainable. The plaintiff has categorically stated in the plaint that the plaintiff insurance company authorised M.K. Khanna to file the suit on its behalf. 8 Ex.-9 is the extracts from the minutes of the Board Meeting wherein the Board of Directors in its meeting dated 24.2.1975 resolved to appoint respective Divisional Managers and Assistant Divisional Managers of all Divisional offices of the company, anywhere situate, within the Union of India and also the Branch Managers, Officers-in-charge of the company's Foreign Branches, to act in the name of the company to execute or do any of the acts or things as mentioned therein. A perusal of Ex.-9 clearly indicates that the above officers of the insurance company were authorised to sue, prosecute and defend all actions and proceedings for and against the Company and for the purpose to sign and verify Vakalatnama, Plaint, Written Statements, Petitions, Claims and Objections, Memorandum of appeal and Petitions and applications of all kinds and to file them in any such Courts, Tribunals or Offices and for the purpose to appoint and instruct or dismiss an Advocate, Vakil, Pleader, Muktar, Solicitors or any other legal practitioner and to substitute any other instead, if necessary. In the present matter, the plaint was filed by M.K. Khanna though he has not appeared in the witness box but he at the relevant time was Acting Divisional Manager. The plaintiff's witness Vikram Singh has proved Ex.-9. Thus, in view of the statement of PW-2 Vikram Singh and document Ex.P-9 and also taking into consideration the provisions of Order 29 Rule 1 CPC, it stands amply proved that the suit was filed by a 9 person duly authorised to file the suit. The contention of the learned counsel that since M.K. Khanna was not examined and he being the Acting Divisional Manager of the insurance company, therefore, the suit was liable to be dismissed is rejected because Ex.-9 leaves no doubt in my mind that the suit has been filed by a duly authorised employee of the insurance company. So far the contention of the learned counsel that the truck was not of defendant no.1 and it was of one Bhagwan Singh and the appellant was not a common carrier is concerned, it stands established on the basis of statement of DW-1 Deshraj wherein he has stated that he is having several trucks which were being used for the purpose of transportation. If that part of his statement is correct then there is no hesitation in reaching to the conclusion that during the course of business if the defendant has hired a truck or made some arrangement with other transport company then he cannot be absolved of his responsibility by making a simple denial to the effect that defendant is not a common carrier. The argument of the learned counsel is not tenable. It further appears that the defendant no.1 has issued the certificate Ex.-3 wherein damage has been assessed of the defendant no.2 to the extent of Rs.78,240/-. The defendant Deshraj in his statement could not deny the issuance of certificate by him and also admitted this fact that he also visited the place of accident where the 10 accident took place. It further appears from his statement that he issued the certificate. In the above circumstances, the contention of the learned counsel that certificate was issued on the request of defendant no.2 is not liable to be accepted because had there been no proper assessment made by him, then he was not required to issue any certificate. Once, the defendant has admitted that he issued a certificate in relation to damage done to the goods loaded in the truck by defendant no.2 and could not reach the destination then the only presumption which could be raised is that the defendant no.1 being a common carrier, booked the consignment of defendant no.2 for its delivery at Patna. It further appears that letter/notice Ex.-4 was sent by defendant no.2 to defendant no.1 and the same was delivered to him. It contains signature of DW-1 Deshraj at place 'C' to 'D'. This letter/notice indicates damage to the tune of Rs. 78,538.80 and the defendant no.1 was asked to pay the claim immediately, therefore, there appears proper service of notice on defendant no.1 and no further notice was required to be given. The contentions of the learned counsel that since there was no previty of contract between the plaintiff and defendant no.1 and further appellant no.2 being common carrier, the defendant was not liable to pay any damages, are also liable to be rejected for the reasons firstly because the surveyor's report as well as the plaintiff's witness in detail have 11 stated about the damage caused and assessed to the extent of Rs.55,682.72 which is at the lower side as was assessed by the defendant no.1 himself at Rs.78,000/-. It further appears that section 8 of the Carriers Act, 1865 states that 'Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property including container, pallet or similar article of transport used to consolidate goods delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants. The above provision nowhere states about the requirement of previty of contract between the parties. In the present case as has been found that the consignment was booked by defendant no.1 and in lieu of that payment was made to him and in this regard required transportation charges were received on 27.8.1981 as apparent in Ex.-1 and that fact has not been denied. In the case of Vidya Ratan Vs. Kota Transport Co. Ltd.- AIR 1965 Rajasthan 200, it has been held that without 12 there being any enabling provision to limit the liability of a common carrier, its liability to deliver the goods will be absolute and it can be excused from such delivery only, if the loss is caused by an act of God or an act of the enemies of the realm. Exemptions by special contract to the general liability of a carrier are to be construed strictly, and are not created by the use of subtle implications or ambiguous words. It has further been held that 'it is sufficient if the carrier has accepted the goods for transmit and has failed to deliver them. Thereafter to escape his liability which is normally absolute, he has to show that there was a special contract made by the owner of the goods or his duly authorised agent, even if, the necessity of having the contract in writing is thought to be a technical provision. It has further been held that under section 9 it is not necessary for the owner of the goods to prove negligence, in a suit against the common carrier for loss of goods delivered to him for transport. In view of the provisions of the Carriers Act and settled position of law and further in the absence of any evidence led to show that there was no negligence of the defendant's driver which resulted in accident, then simply to say that there was no privily of contract between the parties, therefore, defendant no.1 can not be held liable for the damages suffered and to exonerate the defendant of his liability to make payment in relation to goods damaged when 13 the same were under his transport company. It is to be seen that in the evidence it has been proved and accepted by the defendant no.2 that the entire amount claimed by him has been paid by the insurance company and for recovery of that amount proper documents have been executed and plaintiff insurance company has been authorised by the defendant no.2 to insurance company to recover the amount from defendant no.1 then the plaintiff insurance company has all the competence to file the suit for recovery. In the instant case, the statement of DW-1 Deshraj, nowhere states that the accident was not the result of negligence on the part of driver. As regards claim of the amount is concerned, no cross-examination has been done from the witnesses of the plaintiff, therefore, the arguments raised by the learned counsel are not liable to be accepted. Another contention of the learned counsel that the suit filed was barred by limitation is also liable to be rejected as consignment was booked on 27.8.1981 and the suit was filed on 6.9.1984, therefore, in view of section 11 of the Limitation Act, the suit has been filed within three years as the accident took place on 29.8.1981. The contention of the learned counsel that since payment of the claim has been made by the insurance company, therefore, now the defendant is not liable to make 14 payment because defendant no.2 has not filed the suit against him for recovery of the amount in relation to the damage caused of his goods is also of no significance and is liable to be rejected summarily. The learned trial court has correctly appreciated the evidence and the finding recorded on issues framed in the matter appears legal, just and proper. It does not appear that the trial court has misread the evidence or has committed illegality in decreeing the suit. In view of the fore-going discussion and answer to the points nos. 1 to 3 framed above, there does not appear any merit in this appeal and the same is liable to be dismissed. In the result, this appeal is dismissed. (S.P.PATHAK) J. bblm