IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 449 of 2001 Reserved on: 02.06.2010 Date of decision: 23.06.2010 Vinay Roadlines (Pvt.) Ltd. … Appellant Versus United India Insurance Company Ltd. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the respondent: Mr. Anand Sharma, Advocate. V.K. Ahuja, J.: This Regular First Appeal has been filed by the appellant under Section 96 C.P.C. read with High Court of Himachal Pradesh (Appellate Side) Rules, 1997, against the judgment and decree passed by the learned District Judge, Solan, dated 8.10.2001, decreeing the suit of the respondent for damages to the extent of Rs.2,46,397/- as against the appellant. 2. Briefly stated, the facts of the case are that the Himachal Telematics Ltd., now renamed as Himachal Futuristic Corporation Ltd. (HFCL), hereinafter referred to as “consigner” booked a consignment with the appellant/defendant, hereinafter referred to as the defendant, for transportation to Bombay. The consignment consisted of 10 packages known as Cable Drums 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 containing feeder cable. The consignee was M/s Regional Telecom Training Centre Bombay. The consignment was received on 17.5.1995, but on receipt of the same, it was found that one package consisting of 160 metres feeder cable was badly damaged. It was alleged by the plaintiff that it was damaged due to rash and negligent act on the part of the defendant in transportation of the goods. It was further alleged that the defendant was duty bound to transport the consignment in good condition. The consigner filed a claim under Carrier Act through their letter dated 30.5.1995. The defendant admitted the loss and damage through their letter dated 29.1.1995, but did not pay the amount. 3. It was further alleged that the consigner (HTL) lodged a claim of the said damages with the Insurance Company i.e. the plaintiff. The plaintiff after verification found the claim genuine to the extent of Rs.1,86,572/- and paid the same on 21.3.1996 to HTL. The plaintiff company also paid an amount of Rs.2010/- to M/s ILAS Consultants Pvt. Limited, the loss assessor for proper verification and assessment of the claim preferred by the HTL. The HTL executed a letter of subrogation and Special Power of Attorney in favour of the plaintiff duly notarized on 19.2.1996 and thereafter, filed a suit for recovery of Rs.1,86,572/- principal amount plus interest and amount paid to the assessor. Hence, the suit for recovery of Rs.2,46,397/- filed by the plaintiff alongwith interest pendente lite. 4. The appellant/defendant hereinafter referred to as defendant took up preliminary objections in regard to 3 maintainability and limitation. On merit, the defendant admitted that he had carried the goods of HTL from Solan to Bombay. It was denied that the goods were damaged due to the negligence of the defendant. They also pleaded that out of 10 packages, 9 packages were delivered in OK condition and only one package was in bad shape, which was the result of improper packing and as per receipt only the spool was broken, no material was damaged. The material was booked by the defendant at owner’s risk, as such, the defendant pleaded that he is not liable to pay any amount. 5. On the pleadings of the parties, the followings issues were settled by the learned trial Court:- 1. Whether the plaintiff is entitled to the suit amount, as alleged? OPP 2. Whether the suit is not maintainable, as alleged? OPD 3. Whether there is no cause of action to the plaintiff? OPD 4. Whether the suit is barred by limitation? OPD 5. Whether the plaintiff is entitled to interest, if so, at what rate? OPP 6. Relief. 6. Parties led their evidence and the learned trial Court vide its impugned judgment decided Issues No. 1 to 5 in favour of the plaintiff and as against the defendant and consequently, decreed the suit of the plaintiff for recovery of the whole amount of Rs.2,46,397/- alongwith interest at the rate of 12% per annum. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 4 8. The submissions made by the learned counsel for the appellant were that there is no evidence on record to show that there was any negligence on the part of the defendant. It was also pleaded that the surveyor report was Ext.PW2/A was wrongly relied upon by the learned trial Court, but the surveyor has not been examined. It was also submitted that an objection could have been taken by the consignee when he received the goods. It was also submitted that the suit was not within time and as such, the same was liable to be dismissed. 9. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons given therein. It was further submitted that the defendant had admitted the loss and no objection was taken to the report of the surveyor and no request was made for his examination. It was also submitted that that loss was admitted by the defendant who had advised to recover the same from the Insurance Company. It was also submitted that there is no substance in the plea that goods were at owner’s risk and, therefore, the defendant was not liable. There was no specific evidence required to be led to prove the loss inquestion. The mere fact that it was mentioned that the goods are on owner’s risk, the consignee is not absolved from its liability for safe delivery of the goods and as such, there is no merit in the submissions raised by the learned counsel for the appellant and the appeal deserves to be dismissed. 10. From a perusal of the pleadings of the defendant, it is clear that he has admitted that he had carried the goods of HTL from Solan to Bombay vide GR dated 30.4.1995 Ext. P-2. It 5 was also admitted that out of the 10 packages, 9 packages were delivered in OK condition and only one package was in bad shape, which was the result of improper packing. There is nothing that the goods were booked at owner’s risk and that the defendant was not liable for the loss if any. This fact was admitted very clearly that out of 10 packages, 9 were delivered in OK condition and only one package was in bad shape. It has been mentioned in the GR Ext. P-2 that the goods are being carried at owner’s risk but this does not lead to an inference that the consignee is absolved of its liability to make sure that the goods are delivered in safe condition. This fact was not denied that one package was in a bad shape. However, the denial of negligence was only alleged but the damage has been caused to one package during transit and the consignee, therefore, cannot escape from his liability. Section 9 of the Carriers Act, 1865, reads as under:- “9. Plaintiffs, in suits for loss, or non-delivery, not required to prove negligence or criminal act. – In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non- delivery was owing to the negligence or criminal act of the carrier, his servants, or agents.” 11. It clearly lays down that it shall not be necessary for the plaintiff to prove that such loss or damage was owing to the negligence of the carrier, his servants or agents. Thus, the plaintiff had to only prove the loss or damage and has not to prove the negligence also that it was of the carrier or his 6 servants or agents. The carrier, is therefore, liable for any loss caused to the consignment during transit and the negligence is not required to be proved by the plaintiff. 12. In regard to the question that before filing the suit of the plaintiff, he should have issued fresh notice upon the defendant. It has been clearly held by the learned trial Court that the consigner has subrogated all such rights, title and interest qua the actionable claim pertaining to the consignment to the Insurance company i.e. the plaintiff vide Ext. P-7. The statement of PW-1 G.L. Sharma shows that he had proved the documents Exts. P-1 to P-5 He also proved that the consignment was entrusted to defendant vide GR Ext. P-2. The measurement of the damaged cable package has been proved to be 160 metres valuing at Rs.1,86,572/-. He is the representative of the consigner and he proved that the entire claim has been received by him from the Insurance Company – plaintiff as letter Ext.P-3 He also proved issuance of notice Ext. P-4 to the defendant/carrier and it was not necessary that a fresh notice should have been issued by the company in whose favour the consigner had subrogated all rights, title and interest. The loss in question stands paid to the consigner by the plaintiff - company vide receipt Ext. P-6. The plaintiff had also examined PW-2 Shri S.C. Sharma, Branch Manager of the plaintiff – company to prove the execution of the subrogation deed Ext. P-7 and receipt Ext. P-6. he has proved the report of the surveyor Ext. PW2/A that it was issued by the surveyor whose signatures he admits. The said copy was tendered in evidence, though objected to, but there is nothing on record on which ground 7 the same was objected to and no prayer was made by the defendant that it cannot be tendered in the evidence until and unless the surveyor was examined. The mere fact that it was objected to, it is not sufficient to hold that it cannot be legally read in evidence. PW-2 S.C. Sharma, Branch Manager, has identified the signatures of the surveyor. Moreover, the said surveyor report was not very material particularly when the defendants had admitted the loss as pleaded by them in their written statement that one package was in damaged condition. There is no merit in the submission made that there was no contract in between the plaintiff and defendant or that the defendant is not liable to pay the amount since subrogation was made in favour of the plaintiff alongwith all rights etc. Even in regard to the notice issued, the defendant had replied to the same but had not disputed the claim preferred by the plaintiff that the loss was caused to the extent of Rs.1,86,572/- as per notice Ext. P-4. Thus, this amount in question was never disputed and as such, it is clear that the plaintiff was rightly held entitled to the amount in question. 13. Coming to the plea in regard to limitation, notice Ext. P-4 was issued by the consigner, which is dated 30.5.1995. The reply was sent by the defendant vide Ext. P-5 that the mater may kindly be taken with the concerned Insurance Company to make good the loss of the damaged material, but it was never disputed specifically that the loss was not caused to this extent. The defendant denied the claim of the plaintiff – company on 29.1.1996 and therefore, the cause of action had arisen to the consigner or the plaintiff – company to file the suit for recovery of the amount. The suit having been filed on 30.10.1998 is 8 within three years from the issuance of the reply by the defendant and as such, the suit was well within time. No other specific pleas were raised during the course of arguments and the findings of the learned trial Court on all the issues which are based upon correct appreciation of evidence and law, do not call for an interference by this Court and as such, are affirmed. 14. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed alongwith costs including the lawyer’s fees. ( V.K. Ahuja ), June 23, 2010 Judge (BSS)