HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A. Nos.1 and 33 of 2000 Date: 01-4-2011 C.C.C.A.No.1 of 2000: Between M/s Union Roadways (New Union Roadways Ltd.,), 5-2-992/4, 1st Floor, Nizam Sahi Road, Hyderabad, Rep. by its GPA Holder Mr. Rajkumar Dalmia … Appellant/Defendant and 1. The New India Assurance Company Ltd., Rep. by its Deputy Manager, Regional Office, Secunderabad and another … Respondents/Plaintiffs C.C.C.A.No.33 of 2000: Between 1. The New India Assurance Company Ltd., Rep. by its Deputy Manager, Regional Office, Secunderabad and another … Appellants/Plaintiffs and M/s Union Roadways, 5-2-992/4, 1st Floor, Nizam Shahi Road, Hyderabad-500 001 … Respondent/Defendant HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A. Nos.1 and 33 of 2000 Common Judgment: Since both the appeals do arise out of the judgment and decree dated 08-10-1999 in O.S.No.317 of 1990 on the file of the II Additional Senior Civil Judge, City Civil Court, Hyderabad and the parties being common, they are being heard and disposed of by a common judgment. 2. C.C.C.A.No.33 of 2000 is filed by the plaintiffs in the suit, whereas C.C.C.A.No.1 of 2000 is filed by the defendant in the suit. 3. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit. 4. The plaintiffs 1 and 2 filed the suit against the defendant for recovery of an amount of Rs.79,000/- together with interest at 18% per annum from the date of suit till realization. Plaintiff No.1 carries on business in the general insurance apart from its other business activities and also effects the insurance of goods in transit. During the course of business the 1st plaintiff issued marine policies covering the risk in respect of the suit consignment. The suit consignment was booked under L.R.No.3897 dated 20-8-1987 at Hyderabad to be delivered at New Delhi. The consignee is Chief Telecom Inspector, Northern Railway, Thomson Road, New Delhi. The consignment was sent to the consignee through the defendant common carrier for being transported by road. The defendant common carrier accepted the said consignment for safe delivery from Hyderabad to New Delhi to deliver to the consignee. The said consignment was sent by the defendant carrier by their truck. The said consignment was not delivered in a proper condition. The consignment consists of 10 feet dia, 7 GHz standard performance, LOS Antenna, with feed, Antenna dishes, feed horns, fasterners, mount frames, azimuth channels, the total value of which is Rs.3,84,000/-. The said consignment was damaged during transit to the extent of Rs.79,000/- i.e., the suit amount. Therefore, the plaintiffs preferred a claim on the defendant by a letter dated 02-4-1987 calling upon the defendant to pay a sum of Rs.96,000/- towards the loss occurred to the consignment while the same was in the custody of the defendant carrier. The defendant having received the claim letter and having acknowledged the same, failed to pay any amount to the 2nd plaintiff towards the loss/damage. The suit consignment was damaged during the transit and only due to the negligence on the part of the defendant carrier and its employees. The plaintiffs, therefore, contend that the defendant is liable to pay an amount of Rs.96,000/-. The 2nd plaintiff though preferred a claim and the defendant having given a damage certificate dated 04-7-1987 admitting the loss to the consignment etc., failed to make any payment to the 2nd plaintiff. The 2nd plaintiff, therefore, approached the 1st plaintiff being insurer to settle his claim. The 1st plaintiff after making enquiry and also after ascertaining the actual loss and damage occurred to the suit consignment with the help of an independent surveyor, has paid an amount of Rs.79,000/- to the 2nd plaintiff. By virtue of the said payment, the 1st plaintiff stands subrogated to the rights and remedies of the 2nd plaintiff against the defendant carrier. The defendant has not paid fully or partly any amount to the 1st plaintiff in spite of repeated reminders sent by the 1st plaintiff to the defendant carrier and having given the damage certificate, the 2nd plaintiff was made as a pro forma party. Out of the total consignment and out of 10 Antennas, one Antenna was damaged as the truck met with an accident admittedly. It is submitted that the liability of the defendant is statutory liability and he cannot avoid his liability. The defendant gave reply to the 1st plaintiff by a letter dated 10-6-1989 denying the liability though he is liable under the Act. 5. The sole defendant filed a written statement denying most of the averments of the plaint and contended that the suit consignment was booked and carried at “owner’s risk”, which is evident from the original Lorry Receipt and it was not insured with the defendant and that therefore, the suit as framed and filed by the plaintiffs is not maintainable and the suit is liable to be dismissed for mis-joinder of parties. The defendant further admitted that there was some damage to the suit consignment as evident from the copy of the accident report submitted by the driver of the truck carrying the suit consignment. Therefore, the consignment could not be delivered in safe condition in its entirety, as a result of which the accident occurred due to some other truck passing by and hit the part of the suit consignment, which was loaded on the open truck, which was parked on the side of the road. The driver of the truck, which was carrying the suit consignment, had parked the truck on the side after getting down from the road to attend the calls of nature urgently. Therefore, the damage is a result of highly unforeseen accident, which had occurred due to no fault of the driver of the truck, much less any fault on the part of the defendant. Therefore, the defendant is not at all liable to make good the alleged loss suffered by the 2nd plaintiff in respect of the suit consignment, which, in turn, allegedly settled by the 1st plaintiff. The 2nd plaintiff had preferred a claim on the defendant by a letter dated 20-4-1987 seeking payment of Rs.96,000/- towards the alleged loss occurred to the suit consignment and the defendant rightly did not pay the said amount as the defendant is not at all liable to pay the same. Since the consignment was booked at “owner’s risk” there is absolutely no liability on the part of the defendant, more so in a case where the truck carrying the suit consignment had met with an accident there was absolutely no fault or error on the part of the driver of the truck carrying the suit consignment. Therefore, there is no question of making any payment to the 2nd plaintiff. The survey was done even without intimating the defendant, whose presence is absolutely necessary at the time of survey to assess the extent of damage claimed by the 2nd plaintiff. There is no claim whatsoever by the 2nd plaintiff as against the defendant as on the date of filing of the suit. Therefore, the 2nd plaintiff is not a proper party to the suit. Therefore, the suit is bad for mis-joinder of parties. When one antenna was damaged as a result of the accident the damage claimed by the plaintiffs is highly exorbitant. The suit is, therefore, liable to be dismissed. 6. On the basis of the above pleadings, the trial Court framed the following issues: 1. Whether the suit is bad for misjoinder of parties ? 2. Whether the extent of damage claimed under the survey report is valid and binding on the defendant ? 3. Whether the 1st plaintiff is entitled to the suit amount from the defendant as claimed ? 4. To what relief ? 7. On behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-10 were marked. D.W.1 was examined on behalf of the defendant and no documents were marked. 8. Considering the oral and documentary evidence let in by both the parties, the learned Senior Civil Judge decreed the suit for Rs.79,000/- only without awarding any interest, being the amount paid by the 1st plaintiff to the 2nd plaintiff basing on Ex.A-2 damage certificate issued by the defendant. 9. Aggrieved by the said judgment and decree passed by the learned Senior Civil Judge in not awarding any interest, the plaintiffs filed the appeal C.C.C.A.No.33 of 2000 claiming interest at 18% per annum on the decreed amount of Rs.79,000/-, whereas the defendant filed C.C.C.A.No.1 of 2000 questioning the damage of Rs.79,000/- assessed by the trial Court on the basis of exorbitant assessment of damage claimed by the plaintiffs. 10. The points for consideration in these appeals are, (1) Whether the plaintiffs are entitled for damages at Rs.79,000/- as per the report of the surveyor ? (2) Whether the plaintiffs are entitled for interest at 18% per annum ? 11. Points 1 and 2:- Admittedly, the 1st plaintiff issued marine claim policy No.2/00026 covering the risk in respect of the suit consignment booked under L.R.No.3897 dated 20-3-1987 at Hyderabad to be delivered at New Delhi to the consignee through the defendant common carrier. The said consignment was not at all reached in a proper condition. Out of 24 Antennas one Antenna with accessories was damaged. Therefore, the 2nd plaintiff preferred a claim against the defendant carrier for Rs.96,000/- towards the loss occurred to the consignment when it was in the transit through the defendant carrier. 12. The defendant herein admitted that the consignment was booked under L.R.No.3897 dated 20-3-1987 through the defendant common carrier to be delivered to the consignee at New Delhi. But, the defendant further contended that the driver parked the truck on the side of the road to answer urgent calls of nature and some other truck passing on the same road hit a part of the suit consignment, which was loaded on the open truck. Therefore, the consignment could not be delivered in safe custody in its entirety and further contended that the accident purely occurred due to the negligence of the driver of another truck, which hit the truck carrying the consignment. 13. It is also an admitted fact that the 2nd plaintiff preferred claim against the defendant calling upon him to pay a sum of Rs.96,000/- towards the loss occurred to the consignment. It seems the defendant did not give any reply. If at all any accident occurred as alleged by the defendant, the defendant ought to have lodged a complaint against the truck which hit the truck carrying the consignment. 14. In the written statement, it is averred that the driver of the truck carrying the suit consignment lodged a complaint to the Police about the accident. But the defendant did not choose to file a copy of First Information Report said to have been lodged to the concerned Police and also did not furnish the details of the truck which hit the truck carrying the suit consignment. If really such accident occurred the defendant is certainly entitled to claim damages against the owner and insurer of the truck which caused the accident. 15. In the cross-examination, D.W.1 has stated that some unknown vehicle hit their truck and ran away. The Police registered a case and that he does not know the reasons for the accident. He further stated that he cannot say the name of the driver who transported the suit consignment from Hyderabad to New Delhi and Ex.A-5 Lorry Receipt was issued by the defendant carrier. On the top of it, it is mentioned that “At owner’s risk”. D.W.1 has clearly admitted in his evidence that there is no signature of consignee or consignor in Ex.A-5 Lorry Receipt issued by the defendant. 16. In the evidence P.W.1 representing the 1st plaintiff Company has stated that the 2nd plaintiff is their policy holder to cover the marine risk. The 2nd plaintiff booked 10 antennas from Hyderabad to New Delhi with the defendant carrier for transportation. The defendant delivered nine antennas in good condition and one antenna in a damaged condition and therefore they appointed a surveyor to assess the loss. The surveyor issued Ex.A-1 survey report assessing the damage at Rs.81,000/-. Therefore, they paid Rs.79,000/- to the 2nd plaintiff after deducting Rs.2,000/- towards the salvage value. The 2nd plaintiff claimed damages against the defendant since the defendant failed to pay the damages and as the 2nd plaintiff is the policy holder, they have settled an amount of Rs.79,000/- after obtaining Ex.A-3 letter of subrogation and Ex.A-4 Power of Attorney from the 2nd plaintiff. He further stated that the damage was occurred due to the negligence of the defendant. Therefore, the 1st plaintiff is claiming total value of suit amount of Rs.79,000/- with costs and interest. 17. The learned counsel for the plaintiffs submitted that when the goods entrusted to the defendant carrier for transportation were damaged, the consignor is entitled to recover the loss or damage that occurred due to non-delivery of goods entrusted by him to the carrier and he need not establish that loss or damage or non-delivery occurred due to negligence on the part of the carrier, his servants or agents. In support of his proposition, the learned counsel for the plaintiffs placed reliance on a judgment in Prakash Road Lines (P) Ltd. v. H.M.T. Bearing Ltd.[1]. In the said case, the goods were damaged in fire accident that occurred before delivery to the consignee. In such circumstances, a Division Bench of this Court held that the plaintiff is entitled to recover the loss or damage that occurred to it due to non-delivery of the goods entrusted by it to the defendant. 18. He has also placed reliance on a judgment in Indian Drugs & Pharmaceuticals v. Savani Transport[2]. A learned single Judge of this Court held that Section 10 of the Carriers Act (3 of 1865) does not prescribe the period of filing the suit for damages under the Act. It only prescribes that a notice should be given before filing the suit and it should be given within six months when the loss or injury to the goods first came to the knowledge of the plaintiff-owner. 19. He further placed reliance on a judgment in M/s. Road Trans. Corp. v. Kirloskar Brothers Ltd.[3]. A Division Bench of High Court of Bombay held that the plaintiff need not prove negligence and the loss of goods caused by negligence of common carrier, the common carrier is liable notwithstanding anything contained in terms and conditions in consignment note. It was further observed that the Insurance Company had locus standi to claim recovery of the amount from the carriers because the insurer steps into the shoes of the insured for recovery of the suit amount. 20. On the other hand, the learned counsel for the defendant submitted that the goods consignment was carried “at owner’s risk” and there was no contract or custom for payment of interest. Therefore, the defendant is not liable to pay the suit amount with interest. In support of her contention, the learned counsel for the defendant placed reliance on the judgment of a Division Bench of High Court of Madhya Pradesh (Bench at Gwalior) in Gwalior Trans. Co. v. National Ins. Co. Ltd.[4]. In that case, the plaintiff failed to prove any contract between the parties for payment of interest and neither they have proved any custom, it was held that the plaintiff failed to prove any contract or custom, interest cannot be granted. 21. In the cross-examination, D.W.1 admitted that they received Ex.A-2 damage certificate issued by the defendant carrier to the 2nd plaintiff. He also further admitted that he received Ex.A-7 claim lodged by the 2nd plaintiff and gave reply to it. The defendant did not file any copy of reply said to have been given to the 2nd plaintiff for Ex.A-7. Ex.A-7 is a letter addressed to the defendant by the 2nd plaintiff claiming damages of Rs.96,000/- towards cost of the damaged antenna. It seems, the defendant did not choose to give any reply stating that the cost of the damaged antenna is highly excessive and exorbitant. Ex.A-2 is the damage certificate issued by the defendant to the 2nd plaintiff admitting that out of 24 antennas booked one piece is damaged. In the remarks column it has been mentioned that the consignment was carried “at owner’s risk”. This letter is issued by the defendant to the 2nd plaintiff on 04-7-1985 nearly three and half months after the consignment was booked and found damaged. Admittedly, Ex.A-2 does not contain the signature of the consignor or consignee. The defendant ought to have issued such letter at the time of booking the consignment itself. Therefore, the contention of the defendant that the consignment was carried “at owner’s risk” cannot be accepted. 22. Ex.A-9 is the marine claim form claiming damages of Rs.81,000/-. Except Ex.A-10 payment voucher issued by the 1st plaintiff to the 2nd plaintiff and Ex.A-3 subrogation letter, the plaintiffs have not filed any other documentary evidence to prove that there was contract or custom between the parties for payment of interest. In none of the documents filed by the plaintiffs, the plaintiffs demanded interest, much less at the rate of 18% per annum. Ex.A-6 invoice filed by the plaintiffs shows that the value of each antenna costs about Rs.96,000/- . The 2nd plaintiff issued Ex.A-7 Notice to the defendant claiming damages of Rs.96,000/- but the defendant did not choose to give any reply. But, as per the surveyor’s report the damage was assessed at Rs.81,000/- and after deducting Rs.2,000/- towards salvage charges, the 1st plaintiff paid Rs.79,000/- to the 2nd plaintiff, basing on which the trial Court decreed the suit for Rs.79,000/- only and did not choose to grant any interest in the absence of any contract or custom. 23. Therefore, there are no grounds to interfere with the findings of the trial Court with regard to the decree towards the quantum of damages. 24. So far as the interest is concerned, the plaintiffs are claiming interest at the rate of 18% per annum on the ground that the defendant did not choose to pay the damages in spite of notice, therefore the plaintiffs are constrained to file the suit. The consignment was booked on 20-3-1987. The survey was conducted in the month of April, 1987 assessing the damages. The 2nd plaintiff claimed damages against the defendant under Ex.A-7 and when the defendant failed to pay the damages, the plaintiffs filed the suit in the year 1990. The trial Court decreed the suit on 08-10- 1999. 25. Therefore, in the above facts and circumstances, in view of the fact that the plaintiffs claimed damages in the year 1987 and so far the defendant had not paid the amount, the defendant is directed to pay the suit amount of Rs.79,000/- (Rupees seventy nine thousand only) to the 1st plaintiff on or before the 30th September, 2011 after deducting the amount, if any, deposited as per the interim orders of this Court, failing which the defendant is liable to pay interest at the rate of 12 (twelve) per cent per annum from the 01st October, 2011 onwards. 26. In the result, the appeal C.C.C.A.No.33 of 2000 filed by the plaintiffs is allowed in part and the appeal C.C.C.A.No.1 of 2000 filed by the defendant is dismissed. In the circumstances, without costs. The impugned judgment and decree passed by the trial Court are set aside to the extent indicated above. _____________________ V.SURI APPA RAO, J. 01st April, 2011. Ak HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A. Nos.1 and 33 of 2000 (P.D. Common Judgment) 01st April, 2011. [1] 2001 ACJ 40 [2] A.I.R. 1979 ANDHRA PRADESH 41 [3] 1982 A.C.J. 7 [4] 1984 A.C.J. 81