THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1101 of 1993 Date : 09.12.2010 Between : United India Insurance Company Ltd., Visakhapatnam and another … Appellants and Economic Transport Organisation, Calcutta. … Respondent THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1101 of 1993 JUDGMENT : This appeal is filed by the plaintiffs against the judgment, dated 18.1.1993, in O.S.No.125 of 1987 on the file of the II Additional Senior Civil Judge, Visakhapatnam, in not granting the total claim of the plaintiffs against the defendant. 2. The case of the plaintiffs is that the 2nd plaintiff sent certain items of erecting structures booked to Barauni in Assam and the defendant is the carrier and the goods were insured with the 1st plaintiff under a valid Insurance Policy. The consignment was booked on 30.1.1985 and the goods did not reach the destination. Subsequently it was noticed that the goods have lost in transit and not traceable. Thereafter the 2nd plaintiff addressed a letter to the defendant on 23.8.1985 claiming the value of the goods as Rs.1,20,000/- though its value is Rs.2,00,000-75 ps. The said amount was paid by the 1st plaintiff on 29.8.1986 and the 1st plaintiff subrogated to the rights and remedies of the 2nd plaintiff. The defendant, being the carrier and caused loss because of its negligence, is liable to reimburse the loss. 3. The sole defendant filed a written statement contending that the value of the goods at Rs.2,00,000/- is not correct and, on the other hand, the estimate given by the 2nd plaintiff at the time of reporting non-delivery of the goods is only Rs.1,20,000/- and when subsequent notices were given it was mentioned as Rs.1,20,000/-. Therefore, the present claim of the plaintiffs that the value of the goods is more than Rs.2,00,000/- is not correct. The defendant also raised contentions about the maintainability of the suit, the right of subrogation and the validity of the notice under Section 10 of the Carriers Act. 4. On the basis of the above pleadings, the following issues have been framed for trial:- 1) Whether the 2nd plaintiff has sent parts of total value of Rs.2,00,009-75 ps. to the defendant? 2) Whether the consignment was asked at owner’s risk? 3) Whether for want of notice, claim by the 2nd plaintiff is not maintainable? 4) Whether the 1st plaintiff paid an amount of Rs.2,00,000/- to the 2nd plaintiff and the defendant is liable to pay the amount to the 1st plaintiff? 5) Whether the letter of subrogation is valid and binding on the defendant? 6) Whether the defendant is entitled for compensatory costs? 7) To what relief? 5. On behalf of the plaintiffs, PWs.1 and 2 were examined and marked Exs.A-1 to A-12. On behalf of the defendant, DW.1 was examined and no documents were marked. After considering the evidence on record, the learned Senior Civil Judge found that the 1st plaintiff has failed to prove that the value of the goods is more than Rs.1,20,000/- and rejected the other contentions of the defendant and decreed the suit by judgment and decree, dated 18.1.1993. Aggrieved by the said judgment, the present appeal is filed. 6. The points that arise for consideration are— (1) Whether the value of the goods lost in transit is more than Rs.2,00,000/- as claimed by the 1st plaintiff? (2) Whether the 1st plaintiff is entitled to the said amount and, if so, the decree passed by the lower Court is not sustainable? (3) To what relief? In re. Point Nos.1 to 3:- 7. Evidently, when the value of the goods is disputed, the burden is on the plaintiffs to prove the same. According to the lower Court, the evidence of PWs.1 and 2 is not of much help, because it does not disclose the value of the goods except booking the consignment. Ex.A-1 packing list also does not disclose the value of the goods, which are to be sent. At the earliest point of time, when the 2nd plaintiff found the loss and claimed damages from the defendant, the value was fixed at Rs.1,20,000/- under Ex.A-5. Exs.A-6 and A-7 are repeated with the same value. Therefore, according to the lower Court, the claim over and above Rs.1,20,000/- cannot be accepted. 8. Learned counsel for the appellants contends that, in fact, the 1st plaintiff has paid Rs.2,00,000/- to the 2nd plaintiff and the mentioning of the value of the goods at Rs.1,20,000/- is only a mistake and having incurred the liability and as the policy is open and also as the defendant has to reimburse the same, the 1st appellant is entitled for the said amount. 9. However, as found by the lower Court, the burden is on the plaintiffs to show the exact value of the goods. The best way to prove the value of the goods is by showing the market value of the goods booked on that day. But, no such evidence is placed before the lower Court. In fact, it is the 2nd plaintiff, who has to give the value of the goods and not the 1st plaintiff. At the earliest point of time, the 2nd plaintiff has given the value of the goods at Rs.1,20,000/-. There is no explanation from the side of the 2nd plaintiff as to how it has shown the value of the goods at Rs.1,20,000/-. 10. Therefore, in the absence of satisfactory explanation on the part of the 2nd plaintiff and the 2nd plaintiff having continuously claimed the value of the goods at Rs.1,20,000/- under Exs.A-5 to A-7, it cannot again say that the value of the goods is more than what was stated earlier. If, by mistake or otherwise, the 1st plaintiff has paid excess amount to the 2nd plaintiff, the remedy is otherwise and the defendant cannot be asked to reimburse the said value to the 2nd plaintiff. 11. For the foregoing reasons, I do not find any merit in the appeal and the same is liable to be dismissed. 12. In the result, the appeal suit is dismissed. There shall be no order as to costs. ____________________________ N.R.L. NAGESWARA RAO, J 09.12.2010. Msr THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1101 of 1993 09.12.2010 (Msr)