IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 AS.No. 251 of 2000(A) ------------------------------- OS.128/1990 of ADDL.SUB COURT, ALAPPUZHA .................... DEFENDANT 1 & 2/APPELLANT(S): --------------------------------------------------- 1. KALPAKA TRANSPORT COMPANY LTD., Y.M.C.A. ROAD, CALICUT 673 001, REP.BY ITS DIRECTOR A. SAMIKUTTY. 2. KALPAKA TRANSPORT COMPANY LTD., CHURCH ROAD, ALAPPUZHA, REP.BY ITS MANAGER. BY ADVS. SRI.V.V.ASOKAN SMT.S.AMINA PLAINTIFFS AND ADDL. DEFENDANTS 3 AND 4 RESPONDENT(S): ---------------------------------------------------------------------------------------------- 1. THE ORIENTAL INSURANCE CO.LTD., D.O. II, M.G.ROAD, ERNAKULAM REP.BY ITS DIVISIONAL MANAGER. 2. KERALA SPINNERS LTD., ALAPPUZHA REP.BY ITS POWER OF ATTORNEY HOLDER- ORIENTAL INSURANCE COMPANY LTD., M.G.ROAD, ERNAKULAM. 3. M/S. JATTNA ROAD CARRIERS, NIRANJANPUR, DEWANS NAKA, REP.BY ITS MANAGING DIRECTOR. 4. M/S. JATTANA ROAD CARRIERS, BRANCH OFFICE, BANGALORE, REP.BY ITS BRANCH MANAGER. R1 BY ADVS. SRI.VARGHESE C.KURIAKOSE, SRI.MATHEWS K.UTHUPPACHAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = A.S. No. 251 OF 2000 = = = = = = = = = = = DATED THIS, THE 28TH DAY OF JULY, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Additional Subordinate Judge, Alappuzha, in O.S. 128 of 1990. 2. The suit is one for realisation of money. M/s. Grasim Industries Ltd. had entrusted the first defendant Company to transport 45 bales of Viscose Staple fibre from Nagada to Alappuzha, by letter dated 31.1.1988. According to the plaintiffs, when it reached the destination, it was found that 1382.5 Kgs. of Viscose fibre was missing and 1222.1 Kgs. of fibre got contaminated with dirt. Therefore, the second plaintiff made a claim against the first plaintiff and as per the surveyor's report, the amount was paid to the second plaintiff who, thereafter had issued a power of attorney as well as letter of subrogation and therefore, the first plaintiff is entitled to realise the amount from the first defendant. On the other hand, the contesting defendants would admit regarding the entrustment for transportation; but would dispute the quantum and would contend that the plaintiff is not entitled to any relief. It was also submitted that the defendants were filing a petition under Order VIII (A) of the Code of Civil A.S. 251/2000 2 Procedure for third party proceedings against those carriers. Ultimately, the trial court, on examination of the materials, has granted a decree in favour of the first plaintiff to realise a sum of Rs.71,841/- with interest at the rate of 12% per annum from the date of suit till realisation. Further, defendants were authorised to realise the said amount from Defendants 3 and 4 on satisfaction of the decree in favour of the plaintiffs. It is against that decision, defendants 1 and 2 have come up in appeal. 3. Heard the learned counsel for the appellant as well as the counsel for the respondents. The material point that is argued before me by the learned counsel for the appellant is regarding the quantum of damages and quantification of damages. Learned counsel for the appellant would draw my attention to Ext.A4 which is an open delivery certificate issued by the Kalpaka Transport Company, that is the first defendant. There, there is a short delivery column, nature of extent and damages column and invoice value of the damaged goods. As per Column 18 in Ext.A4, the amount as per the invoice value is Rs.40,438/-. Learned counsel would contend that the court below has granted a decree on the basis of the surveyor's report which is prepared without notice to him and further there is no evidence to prove the same. In the decision reported in Associated Transport Corporation (P) Ltd. v. National Insurance Co. Ltd. (1989 (1) KLT 386) A.S. 251/2000 3 a Division Bench of this Court had considered this point and held that in a suit for recovery of loss and damages to goods lost in transit mere production of survey report prepared without notice to carrier is not sufficient and the mere payment by the insurer to the insured shall not be relevant in assessing the damages. It is on this principle, the learned counsel had addressed this Court. There is no material before the court to show that any notice was given to the first defendant before the survey. Equally, it has to be stated that the surveyor has not been examined in this case. Even at the time of marking the document, objection was raised and it was subject to objection, it was marked as Ext.A3. In spite of the same, the plaintiffs did not move their little finger to examine the surveyor. So, really the surveyor's report is not properly proved in this case. Secondly, a situation may arise when the person who had suffered damages comes to the court and deposes about the quantum. In this case, PW.2 is examined. Admittedly, PW.2 was not there at the time of this incident. His knowledge is only from the papers available. So his evidence is equally on the basis of papers, just like PW.1. Therefore, there are really no materials to rely for quantifying the damages in this case. But Ext.A4 certainly stares on the face of the first defendant because it is prepared by the officer of that company wherein it is admitted that there is a short delivery of 1382.5 Kgs. A.S. 251/2000 4 and in their own estimation, they had estimated the damages at Rs. 40,438.10. So, to this amount, the first defendant has to be made liable. Therefore, from these discussions, I hold that the judgment and decree of the trial court requires modification and instead of Rs.71,841/-, the plaintiff will be entitled to realise a sum of Rs. 40,438/-. 4. Therefore, a revised decree is passed as follows: The suit is decreed and the plaintiffs are granted a decree for realisation of a sum of Rs. 40,438/- ( Rupees Forty thousand four hundred and thirty eight only) with 12% interest per annum on the said sum from the date of suit till realisation from defendants 1 and 2. On satisfaction of the amount due to the plaintiffs, defendants 1 and 2 will be at liberty to execute the decree against defendants 3 and 4 for realisation of the said amount with proportionate costs. The appeal is disposed of accordingly. M.N. KRISHNAN, (JUDGE) KNC/- A.S. 251/2000 5 M.N. KRISHNAN, J. = = = = = = = = = = = A.S. No. 251 OF 2000 = = = = = = = = = = = DATED : 28TH JULY, 2010. J U D G M E N T