IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD SATURDAY, THE THIRTIETH OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No. 290 OF 2003 BETWEEN: M/s Transport Corporation of India. …APPELLANT AND The New India Assurance Company Limited and another …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO JUDGMENT: (Per Hon’ble Sri Justice N.R.L. Nageswara Rao) The defendant in O.S.No.31 of 1995 on the file of II Senior Civil Judge, City Civil Court, Hyderabad is the appellant herein. 2. The suit was filed for recovery of Rs.4,50,000/-, which is said to be the amount paid to the 2nd plaintiff by the 1st plaintiff towards the damages caused to the goods, which were entrusted for transport to the appellant. 3. The allegations in the plaint are that the consignment of HMT Milling Machines in perfect condition was booked by the consignor HMT Limited at Pinjore to be delivered to the 2nd plaintiff at Coimbatore vide Letter Receipt No.15389, dated 22.12.1993. The defendant is the transporter of the said goods. The property was delivered in a damaged condition to the 2nd plaintiff. Thereafter, a claim was made by the 2nd plaintiff as the goods were insured with the 1st plaintiff and after assessing the damages, a sum of Rs.4,50,000/- was paid by the 1st plaintiff to the 2nd plaintiff. The 1st plaintiff got rights of subrogation and as the defendant did not make good the damages, which were caused due to the negligence of the defendant, the suit was filed after giving a notice. 4. The defendant filed a written statement contending as follows: Consignment for transportation is admitted. The loading was done at the HMT LTd., at Pinjore by the staff itself. The goods were booked at owner’s risk. The condition of the machines is also not admitted. The negligence attributed to the appellant and his employees is also disputed. It was further pleaded that the Surveyors M/s Radhakrishna Associates, Coimbatore surveyed and submitted the report on 28.05.1994, which clearly goes to show that there were deficiencies in packing and handling and therefore, the damages are not due to the fault of the defendant and its employees. The plaintiffs are put to strict proof of the particulars of the damage and no notice was given to the defendant at the time of the survey. The damages cannot be more than Rs.1,60,000/-, which is the value of the machines and interest at the rate of 18% per annum is excessive. Therefore, the defendant pleaded for the dismissal of the suit. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the first plaintiff is competent to file the suit? 2) Whether the goods were transported at owner’s risk? 3) Whether the defendant has committed negligence and is liable to pay the damages? 4) Whether the plaintiff is entitled to the interest @18% per annum? 5) To what relief? 6. On behalf of the plaintiffs, PW.1 was examined and marked Exs.A.1 to A.18. On behalf of the defendant, DW.1 was examined and no documents were marked. 7. After considering the evidence on record, the learned II Senior Civil Judge, City Civil Court, Hyderabad, has passed the decree for Rs.4,50,000/-. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the appellant is liable to pay the suit amount towards damages? 2) Whether there is negligence on the part of the appellant or its employees? 3) Whether the plaintiff has proved the damages as claimed? 9. POINTS: Though before the lower Court several issues with regard to the maintainability of the suit and the non-liability because of the conditions of the contract and jurisdiction were raised, the lower Court did not accept the contentions. It is not in dispute that the appellant is a common carrier within the meaning of Carriers Act. When once the property is damaged, there is a presumption of negligence and it has to be rebutted only by the defendant. The contention that the goods were transported at the owner’s risk cannot also be accepted because it was not a clear condition and which is not a condition between the 1st plaintiff and the defendant. As can be seen from the documentary evidence produced by the plaintiffs, a survey is said to have been conducted and the survey report is marked as Ex.A-4. The value of the goods as booked is clearly mentioned in the L.R. receipt and there are no conditions absolving the liability of the appellant. The defendant pleads that the loading and unloading was done by the employees of the consignor and consignee and therefore, there is no negligence. To support this there is no material on behalf of the defendant. Even in the written statement the fact that the surveyor had visited and estimated the damages is not in dispute. It clearly goes to show that the appellant has got knowledge about the survey. The report of the surveyor is marked as Ex.A.5, which is the final survey report. The final survey was conducted after the preliminary survey was conducted. As per the survey report, the Surveyor had arrived at the following figures in assessing the damages at Rs.4,50,000/-. a. Horizontal Milling Machine: Value of replacement parts such as vertical arm arbor, spindle side cover plate and other consequential replacements (inclusive of duties & taxes. Rs.37,850/- Add: Labour for replacement, inspection, testing, trial runs (including packing). Rs.28,296/- b. Vertical Milling Machine: Value of replacement of base plate and other consequential replacements. (inclusive of duties & taxes). Rs.2,25,682/- Add: Labour for dismantling, replacement, re-assembling, inspection, testing, trial runs (including packing). Rs.1,18,868/- Rs. 4,10,696 Add: To and Fro Transportation (Coimbatore – Pinjore- Coimbatore Rs. 56,000/- Rs.4,66,696/- Less: Salvage of Hardware (lump sum) Rs. 16,696/- Net Loss Assessed Rs.4,50,000/- The Net Loss is Assessed at Rs.4,50,000/- only. 10. Evidently, so far as the value of the machinery is concerned, there cannot be any dispute so also the incurring of the transport charges and also the labour charges is concerned, it may not be disputable. But the question is about the quantum of said amount, which is arrived at by the Surveyor. In fact, though in the decision reported in M/s. Economic Roadways Corpn., Hyd., Vs. National Insurance Co., Hyd., & Anor.,[1] relied on by the counsel for the 1st plaintiff, it was found that there is no need to examine the Surveyor, in that case, the signature of the defendant was said to have been taken and the damage certificate issued by the Surveyor. But, in this case, there is no such plea or evidence. Therefore, the Surveyor report Ex.A-5 cannot be taken as a conclusive evidence about the loss suffered. Taking into consideration the value of the properties that were damaged and also the incidental expenditure which is likely to be incurred, we feel that amount of Rs.3,75,000/- is ordered to be paid by the defendant will meet the ends of justice. It is also to be mentioned though the defendant has disputed the said amount towards damages, no issue was framed in the lower Court and no particular evidence was adduced to prove the total extent of the claim. Therefore, taking into consideration a reasonable approach to the quantum of damages, we modify the decree of the lower Court for a sum of Rs.3,75,000/- instead of Rs.4,50,000/- as claimed and granted by the lower Court with interest at 15% per annum from the date of suit till the date of decree and at 12% per annum from the date of decree till the date of realisation. Accordingly points are answered. 11. In the result, the appeal is allowed in part and the suit of the plaintiff is decreed for a sum of Rs.3,75,000/- with interest at 15% per annum from the date of suit till the date of decree and at 12% per annum from the date of decree till the date of realisation. Each party shall bear their own costs. ______________ V.ESWARAIAH, J _________________________ N.R.L.NAGESWARA RAO, J Date: 30-04-2011. INL [1] 2002(1) L.S. 128 (D.B.)