Regular Second Appeal No.1651 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.1651 of 2009 Date of decision: 13.08.2009 1.M/s Rishab Cargo Limited, Registered Office 172, SB Road, Ambala Cantt, through its partners Smt. Neeru Mittal, Rishab Mittal and Rochak Mittal. 2.Smt. Neeru Mittal wd/o Sh. Deepak Mittal, 3.Rishab Mittal son of Deepak Mittal, 4.Rochak Mittal son of Deepak Mittal, residents of H.No.74, N.B. Road, Ambala Cantt. ..... Appellants. Versus 1.National Insurance Company Ltd., having its registered office at 3 Middleton Street, Calcutta, and Divisional Offices at various places in India including Calcutta and Ambala and Regional Office at Chandigarh, through Sh. R.K. Vohra its attorney and Divisional Manager, Divisional Office, Railway Road, Ambala Cantt. 2.M/s The Champdany Industries Ltd. GPO Box No. 54325, Princep Street, Calcutta 700072 through its General Manager. ..... Respondents. Regular Second Appeal No.1651 of 2009 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Avnish Mittal, Advocate for the appellants. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 18.09.2007, rendered by the Court of Civil Judge (Junior Division),Ambala Cantt, vide which it decreed the suit of the plaintiff for recovery and the judgment and decree dated 06.11.2008, rendered by the Court of Additional District Judge, Ambala, vide which it dismissed the appeal. 2. The brief facts of the case, are that a consignment of 38 bales of viscose staple fiber worth Rs.6,56,556/- was booked and handed over by M/s Grasim Industries Ltd. Birlagram, Nagda (MP) to M/s Rishab Cargo Limited, defendant no.1, (now appellant), vide consignment note Regular Second Appeal No.1651 of 2009 3 No.010464 dated 09.08.1993, at carrier's risk for its safe delivery to the factory of Champdany Industries, Ltd. Rishra, defendant No.2(now respondent no.2). It was stated that it was within the knowledge of defendant no.1 as to how the said consignment was dealt with and carried by its employees and agents. However, the said consignment had not reached its destination. Defendant no.2 was the consigner and owner of the goods, in question, for consideration. It was further stated that these goods were insured with the plaintiff (now respondent no.1). It was further stated that despite safe delivery of the consignment to defendant no.1 (now appellant), it never reached its destination even after the lapse of more than one month. Finally, defendant no.1 (now appellant no.1) issued a certificate dated 19.01.1994. It was further stated that defendant no.2 lodged a complaint with defendant no.1 (now Regular Second Appeal No.1651 of 2009 4 appellant), vide registered AD dated 22.09.1993 and 11.12.1993, under Section 10 of the Carriers Act and demanded an amount of Rs.6,60,556/-, on account of loss suffered, but it refused to pay for the loss of material during transit. It was further stated that since the goods were insured with the plaintiff (now respondent no.1), so defendant no.2 lodged a claim with it, as per the terms and conditions of the insurance policy. It was further stated that the plaintiff settled the claim by making payment of Rs.5,23,791/- to defendant no.2 against a valid receipt. It was further stated that defendant no.2 executed a letter of subrogation – cum -consignment deed assigning, transferring and abandoning all its rights in favour of the plaintiff, for release all the amounts and compensation from defendant no.1. It was further stated that defendant no.1, thus, became liable to pay a sum of Rs.5,23,791/- alongwith Regular Second Appeal No.1651 of 2009 5 interest @ 18% per annum from 05.10.1994. Accordingly, a suit for recovery with interest was filed. 3. Defendant no.1 (now appellant no.1) put in appearance, and contested the suit, by way of filing the written statement. It was pleaded that the suit was not maintainable; and that Pardeep Mittal was never proprietor of M/s Rishab Cargo. Booking of consignment with defendant no.1 was admitted. It was stated that the consignment was lost in transit. There was no trace of truck, loaded with consignment, and its driver till today. It was further stated that actually, it was an act of enemy of State. It was further stated that the police was informed with regard to the theft / loss of the truck alongwith goods as also the non-availability of the driver. This fact was also brought to the notice of the Insurance Company. It was further stated by defendant no.1 that Regular Second Appeal No.1651 of 2009 6 under the Carriers Act, if the goods are lost or damaged by an act of God or by an act of enemy of State, the carriers are not liable. Moreover, the goods were accepted by the carrier at owner's risk and the goods receipt, in this regard, was issued. It was further stated that on the goods receipt, it was printed that the goods were booked at owner's risk. It was further stated that, as such, there was no privity of contract between the National Insurance Company and defendant no.1 (now appellant), and, as such, the suit was liable to be dismissed, on this ground. The territorial jurisdiction of the Court was also challenged. The remaining averments, contained in the plaint, were denied. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiff is entitled to recovering of Rs.7,12,356/- ?OPP Regular Second Appeal No.1651 of 2009 7 2- Whether the suit is time barred ? OPD 3- Whether the suit is not maintainable ?OPD 4- Whether the Court has no jurisdiction to try and entertain the present suit ?OPD 5- Whether the defendant is entitled to special costs ?OPD 6- Relief.” 5. The parties led oral as well as documentary evidence, in support of their case. After hearing the Counsel for the parties, and on going through the evidence, and record of the case, the trial Court decreed the suit, as stated above. 6. Feeling aggrieved, an appeal was preferred by the defendants/ appellants, which was dismissed by the Court of Additional District Judge, Regular Second Appeal No.1651 of 2009 8 Ambala, vide its judgment and decree dated 06.11.2008. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the defendants (appellants). 8. I have heard the Counsel for the appellants, and have gone through and perused the documents on record, carefully. 9. The Counsel for the appellants submitted that, no doubt, the goods were booked with defendant no.1 (now appellant) yet the truck, as also the goods were lost in the transit. He further submitted that, even the driver of the truck was not traceable. He further submitted that, at the most, defendant no.1 (now appellant) could lodge the report with regard to the theft/loss of the truck and the goods and non traceability of the driver, which it did. He further submitted that as per the goods Regular Second Appeal No.1651 of 2009 9 receipt, the goods were booked at owner's risk and responsibility and, as such, the transporter, defendant no.1, (now appellant) was not at all liable, to pay the amount of loss, if any, suffered by the consignor of the goods, during transit from the carrier or the Insurance Company. He also placed reliance on East India Transport Agency (M/s) v. United India Insurance Co. Ltd. (M/s), 2003(3) RCR (Civil) 7 in this regard. He further submitted that the Courts below, therefore, failed to take into consideration the material evidence, and also mis-read and mis-appreciated the evidence, on record, resulting into recording a perverse finding, leading to decreeing of suit. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. Regular Second Appeal No.1651 of 2009 10 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further Regular Second Appeal No.1651 of 2009 11 held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. Admittedly, 38 bales of viscose staple fiber worth Rs.6,56,556/- were booked and handed over by M/s Grasim Industries Ltd. Birlagram, Nagda (MP) to M/s Rishab Cargo Limited, defendant no.1, vide consignment note No.010464 dated 09.08.1993. These bales (consignment) were not delivered at the destination, even after the expiry of one month. Loss of the truck and the goods in transit, could not be said to be an act of God, nor it could be said to be an act of enemy of State. The loss was on account of the carelessness or negligence of the carriers and their agents. If they caused loss of goods, during the transit, then they were liable to pay the damages for such loss to the consignor. Since the goods had been booked, with the carriers, it did not Regular Second Appeal No.1651 of 2009 12 discharge their liability, despite issuance of notice under the Carriers Act. Thus, the claim was settled by the National Insurance Company, the insurer and receipt was issued. The rights of the consignor, thus, stood subrogated in favour of the National Insurance Company. Under these circumstances there was a privity of contract between the National Insurance Company and the carriers. The Courts below rightly held that a legal notice under Section 10 of the Carriers Act was served upon defendant no.1(now appellant). The Courts below were also right in holding that the mere fact that in the consignment the words at owner's risk, were written, did not absolve defendant no.1 (now appellant) of its liability as there was negligence or carelessness on the part of the carriers. No help, therefore, can be drawn from East India Transport Agency's case (supra) as the facts thereof, are clearly Regular Second Appeal No.1651 of 2009 13 distinguishable, from the facts of the instant case. In that case, the negligence of the owner and the driver of the truck was not proved. The Courts below, thus, rightly held that the plaintiff was entitled to the decree for recovery with interest. The concurrent findings of facts, on the aforesaid points, of the Courts below, being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. Regular Second Appeal No.1651 of 2009 14 12. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed. ( Sham Sunder ) August 13, 2009 Judge dinesh