THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CITY CIVIL COURT APPEAL No.95 OF 1994 DATED: 05-08-2010 JUDGMENT: This appeal is directed against the judgment and decree, dated 31-12-1993, in O.S.No.554 of 1985 on the file of the learned Additional Chief Judge, City Civil Court, Hyderabad, wherein the suit filed by the appellants herein for recovery of a sum of Rs.42,434/-, towards damages to the consignment was dismissed. 2. Heard learned counsel for the appellants-plaintiffs and the learned counsel for the respondents-defendants. Perused the record. 3. The case of the plaintiffs, in brief, is as follows: 1st plaintiff is the insurer and the 2nd plaintiff is the consigner of 125 bags of D-30 Grade sugar. 1st defendant was the carrier of the goods and the 2nd defendant was the consignee and owner of the goods. The 2nd plaintiff booked the goods i.e. 125 bags of sugar with D1 under two consignment notes bearing Nos.646 and 647, dated 26-08-1981. The goods were carried in a lorry bearing No.ORU.9632. 2nd plaintiff booked the consignment on behalf of the 2nd defendant and also the supplier ‘M/s Tarna Shetkari S.Saknar Kharkana Limited’, Dhoki. The consignment was insured with the 1st plaintiff under policy No.13900/53/1/01494 under declaration No.606/81. The 1st defendant is a public carrier. The lorry met with an accident on its way to Calcutta on 30-06-1981 in Orissa State. The damaged consignment was taken in another vehicle and delivered to the 2nd defendant at Calcutta on 14-07-1981. The 1st defendant informed the 2nd plaintiff about the accident. D1 gave an open delivery certificate on 14-07-1981, duly noting the details of the damage. Out of 125 bags of sugar, 91 bags were in wet condition and 34 bags were partly damaged. A survey was also conducted about the damage caused to the consignment. The 2nd plaintiff lodged a claim with D1 by letter, dated 18-12-1981, claiming damages to the extent of Rs.88,000/-. D1 did not give any reply. 1st plaintiff, as insurer, was forced to settle the claim of the 2nd plaintiff and on such settlement, the 2nd plaintiff executed a letter of subrogation and a special power of attorney on 30-11-1982 in favour of the 1st plaintiff authorizing them to initiate proceedings for recovery of damages from D1. The claim was settled at Rs.45,871.85 ps which was ultimate value finally arrived at. Plaintiff got issued notice, dated 27-02-1984, demanding payment of Rs.45,871.05ps as compensation. D1 did not give any reply. Hence, the suit. 4. D1 filed a written statement contending in brief as follows: D1 is not a carrier at all. D1 is only a commission agent arranging for transportation. Plaintiffs have proceeded on the misconception that D1 is a common carrier. The said consignment was not entrusted for transport to D1 by the 2nd plaintiff. D1 only arranged transport at the request of the parties as a commission agent. D1 denies that the 2nd plaintiff entrusted 125 bags of sugar under consignment notes Nos.646 and 647. D1 also denied that the lorry bearing No.ORU.9632 belongs to them. The said vehicle belonged to one Smt.Amrut Kaur and as such the owner of the said vehicle is a necessary and proper party. The open delivery certificate alleged to have been issued by the office of D1 at Calcutta was only to facilitate the owner of the goods to claim from their underwriters and not as an acknowledgment of the loss. D1 acted only as a broker on commission, which was paid by the parties. There is absolutely no privity of contract between D1 and the plaintiffs. D1 has not received any claim from the plaintiffs. The plaintiffs have no cause of action against D1. The suit against D2 was dismissed. 5. On the strength of the pleadings, the trial Court framed the following issues: 1. Whether the defendant is not a carrier, but only a commission agent who arranged for the transport of 125 bags of sugar through lorry No.ORU.9632 belongs to Smt.Amrut Gowd of Gandarpur of Katak of Orissa State? 2. Whether the open delivery certificate issued by the defendant office at Calcutta is only to facilitate the owner of the goods to claim from their under-writer and not acknowledgement of the loss? 3. Whether the assessment of the loss by the plaintiff surveyor is not binding on the defendant? 4. Whether there is privity of contract between the plaintiff and defendant? 5. Whether the owner of the lorry is a necessary party? 6. Whether the claim letter dated 18-12-1981 is not in accordance with the provisions of the Indian Carriers Act? 7. Whether there is special contract between the transport company and the consigner and whether the consignment was carried at owner’s risk? 8. Whether this Court has no jurisdiction to try suit? 9. Whether the accident was due to an act of God? 10. To what relief? 6. During the trial, P.W.1-Senior Assistant of the 1st plaintiff was examined and Exs.A1 to A6 were marked on behalf of the plaintiffs. D.W.1 was examined and Exs.B1 to B5 were marked on behalf of the defendants. 7. On a consideration of the evidence available on record, the trial Court held that there was no privity of contract between the 2nd plaintiff and the 1st defendant and therefore, the plaintiffs are not entitled to enforce any claim as against the 1st defendant. Accordingly, the suit was dismissed. Aggrieved by the same, plaintiffs preferred the present appeal. 8. The case of the plaintiffs is that the 2nd plaintiff has booked 125 bags of sugar through the 1st defendant under two consignments-Exs.A1 and A2 bearing Nos.646 and 647 to be delivered to the consignee-2nd defendant at Calcutta and on the way the lorry met with an accident resulting in damage to the goods. According to the plaintiffs, the damage was assessed to be in a sum of Rs.88,000/- and the 1st plaintiff-insurer has settled the claim at Rs.42,433.68ps and paid the same to the 2nd plaintiff and the 2nd plaintiff issued a letter of subrogation under Ex.A5 and also special power of attorney in favour of the 1st plaintiff authorizing him to recover the damages from the 1st defendant. Based on the said letter of subrogation under Ex.A5, the suit was filed for recovery of a sum of Rs.42,433/-. The specific plea of the plaintiffs is that the 1st defendant was a public carrier and the consignments were booked with the 1st defendant to be carried and delivered to the consignee-2nd defendant at Calcutta and the lorry belonging to the 1st defendant by which the goods were being transported met with an accident on the way in Orissa. 9. D1 categorically denies that they are public carriers or that any goods were booked with them by the 2nd plaintiff for transportation to Calcutta. D1 further denies that the said goods were transported by their lorry or that the said lorry met with an accident. According to D1, they are not carriers at all and they are only commission agents arranging vehicles for transportation and the lorry belonged to one Smt.Amrut Kaur, R/o Katak and that the plaintiffs have not chosen to implead the owner of the vehicle. In support of their contention, the defendants relied upon a letter-Ex.B1 addressed to the 1st defendant by the 2nd defendant, wherein it is stated that the 1st defendant is only a commission agent for transportation of the goods of the 2nd defendant on commission basis as broker. The letter-Ex.B1 would go to show that the 1st defendant is only a commission agent. In Exs.A1 and 2, the name of the consignor is shown as M/s Tarna Shetkari S.Saknar Kharkana Limited, Dhoki-45, but not the 2nd plaintiff. Secondly, the vehicle number mentioned in the plaint is lorry bearing No.ORU.9632, whereas in Ex.A4- open delivery certificate, vehicle number is mentioned as truck bearing No.OSC.6503. Similarly, the policy number mentioned in Ex.A5-letter of subrogation as 13900/B/1/0539 is also not tallied with the policy number mentioned in paragraph No.3 in the plaint, whereunder it is stated to be 13900/53/1/014194. Thus, neither the registration number of the vehicle nor the number of the policy, as mentioned in the plaint, are tallying with those contained in the documents filed by the plaintiffs. Further, P.W.1, the official of the 1st plaintiff-insurer, the only witness examined on behalf of the plaintiffs, admitted in the cross-examination that he was not present on any of the transactions and he does not know the relationship between the 2nd plaintiff and D2. He further admitted that he was not present when the Surveyor conducted the survey and he does not know whether the Surveyor’s report is filed in the Court or not. Admittedly, the Surveyor’s report is not filed before the Court. He also admitted that he has not filed copy of the policy or the open cover. 10. It is suggested to P.W.l in the cross-examination that the policy is not filed into Court deliberately because the said consignment is not covered by the policy. Though P.W.1 denied the suggestion, there is, however, no explanation forthcoming for not filing the copy of the policy. He also admitted that he has not mentioned the other vehicle number, which has taken the damaged consignment to the destination from the place of accident. 11. The oral evidence of P.W.1 does not also establish that there was any privity of contract between the 2nd plaintiff and the 1st defendant. 12. Section 64UM(2) of the Insurance Act, 1938 ( for brevity, ‘the Act’) states that no claim in respect of a loss exceeding Rs.20,000/- in value on any policy of insurance shall be admitted for payment or settled by the insurer unless he has obtained a report on the loss that has occurred, from a person who holds a licence issued to act as a Surveyor or loss assessor. Without any estimation as to the nature and extent of the loss and quantification of the same by a qualified Surveyor, the 1st plaintiff is therefore not liable to admit any claim in respect of the said loss in view of Section 64UM (2) of the Act. Though in the plaint, it is averred that a survey was also conducted and the loss was assessed by a Surveyor, no such Survey report is filed before the Court nor is the Surveyor examined. 13. In the circumstances, it must be held that the plaintiffs have failed to establish that the 1st defendant is a public carrier in terms of the Carriers Act or that the 2nd plaintiff has booked the consignment with the 1st defendant or that the 1st defendant transported the goods through their vehicle or that the said vehicle belonging to the 1st defendant met with an accident resulting in damage to the goods. In other words, plaintiffs have failed to show that there was any privity of contract between the 2nd plaintiff and the 1st defendant as consignor and carrier. On the other hand, the evidence on record shows that the 1st defendant was acting as a commission agent for the 2nd defendant engaging the vehicles on commission basis and that the 1st defendant was not a public carrier within the meaning of the Carriers Act. The plaintiffs have also failed to establish that the loss was assessed by a qualified Surveyor and that it was quantified in a sum of Rs.42,433.68ps for recovery of which the suit is filed. Plaintiffs, thus, failed to establish their claim as against the 1st defendant. The claim against the 2nd defendant was dismissed for default. The finding recorded by the trial Court, to the effect that there is no privity of contract between the 2nd plaintiff and the 1st defendant and therefore the plaintiffs cannot enforce their claim against the 1st defendant does not therefore call for any interference by this Court. There are no merits in the appeal. 14. In the result, the appeal is dismissed. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 05th August, 2010. Tsy