IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 AS.No. 457 of 1995(D) -------------------- OS.358/1983 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/1ST DEFENDANT: -------------- M/S. KERALA TRANSPORT COMPANY, CALICUT, REPRESENTED BY PARTNER, P.V. CHANDRAN. BY ADV. MR. T.G.RAJENDRAN MR. A.K.ALEX RESPONDENTS/PLAINTIFF/2ND DEFENDANT: --------------- 1. N. CHELLAMMAL, W/O. R. NALISAN, RESIDING AT 126, THURAIYAN ROAD, NAMAKKAL, SALEM DISTRICT. 2. M/S. ANAND AGARWAL OILS PVT. LTD., KAPURTALA, PUNJAB. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.457/95 ORDER ON C.M.P. 3516 OF 1995 IN A.S. 457 OF 1995 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 25.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S. No. 457 OF 1995 -------------------------------------------------- Dated this the 25th day of March, 2009 J U D G M E N T First defendant in O.S.358 of 1983 on the file of Sub Court, Kozhikode is the appellant and the plaintiff and second second defendant are the respondents. Second respondent admittedly entrusted a boiler and accessories to the appellant representing that they are weighing 15 metric tonnes and two metric tonnes respectively, to be delivered at their office at Kapurthala. Appellant engaged first respondent to transport the boiler and the accessories from Punalur to Kapurthala. The boiler and the accessories were delivered by the appellant to first respondent. But while on transit the vehicle capsized at Kottarakkara after travelling a distance of 25 km. The accident was due to the overweight of the boiler. It was thereafter agreed between the appellant as well as the first respondent and second respondent that the boiler would be weighed and additional payment would be made. Ext.A13 agreement was entered into A.S.457/95-D 2 between the appellant and the first respondent. Incorporating the agreement between the appellant and the second respondent, Ext.B11 letter was sent to the second respondent by the appellant. Second respondent agreed to pay the additional charge of Rs.69,000 to appellant subject to the conditions stated in Ext.B11. Rs.69,000/- was paid by the appellant to the first respondent which was later paid by second respondent to the appellant. After taking the consignment to Delhi, as instructed by appellant it was taken to the premises of the second respondent at Kapurthala. Second respondent did not unload the boiler and instead detained the vehicle therein for 52 days. First respondent through his driver filed a suit for an injunction to get the lorry released. But it was futile. A Habeas Corpus was filed before the High Court alleging that the drivers and the cleaner along with the vehicle were illegally detained by the second respondent at their premises. Later the said writ petition was withdrawn. The vehicle was released to the first respondent after 52 days. Contending that by such detention first respondent sustained damages @ Rs.1000/- per day, first respondent claimed Rs.52,000/-. Contending that he has to A.S.457/95-D 3 spend Rs.17,700/- for changing the tyres and the tubes on account of the overturning of the vehicle, Rs.17,700/- was claimed. Contending that the freight charges was paid only for 20 tonnes, Rs.25,052/- was claimed as additional charges, Rs.47,400/- was claimed as the expenses met by first respondent for getting the vehicle released and also the personal expenses. Contending that Rs.1,76,450/- was the actual amount due for which Rs.69,000/- alone was paid, after sending notice, suit for realisation of Rs.1,09,050/- was filed against the appellant and the second respondent before Sub Court, Namakkal. As the registered office of the appellant is at Kozhikode, the suit was returned for presentation before Sub Court, Kozhikode. O.S.358 of 1983 was thereafter instituted. The appellant resisted the suit contending that they are not responsible for the detention of the vehicle at Kapurthala and therefore they are not liable for the plaint claim. It was contended that second respondent represented the weight of the boiler and the accessories as stated in the lorry receipts and as the appellant was not having vehicle in which it could be transported to Kapurthala, appellant contacted first respondent who agreed to transport the same and A.S.457/95-D 4 on 14.10.1980 the two consignments of the boiler and the accessories were entrusted to the first respondent and in accordance with the wishes of the second respondent consignment of the boiler and accessories were transported. It was contended that the loading started on 11.10.1980 and was completed on 14.10.1980 and while trailer was proceeding towards Jullunder it capsized and after contacting the second respondent and the first respondent Ext.A13 agreement was executed between the appellant and the first respondent which provide for payment of additional amount of Rs.15,000/- as detention charges, as the vehicle capsized at Kottarakkara and also additional hire charge @ Rs.20,000/- per tonne for every additional tonne above 15 metric tonnes and Rs.2,000/- was paid to purchase tyres and also to meet immediate expenses and the consignments were to be taken to Delhi office of the appellant from where as instructed by second respondent they are to be delivered and the balance amount due to the first respondent would be paid at Delhi office after delivery of the goods in safe condition. It was contended that when the vehicle reached Salem the trailer and the boiler were weighed and it was found A.S.457/95-D 5 that the boiler was weighing more than 30 tonnes and the actual weight was found while weighing at Balaji weighing company, Salem as 36.7 tonnes and meanwhile second respondent through their representatives agreed with the Deputy General Manager of the appellant at New Delhi office to pay full freight, detention and reloading charges in Delhi and the detention charges would be Rs.15,000/- and the second respondent also agreed to reimburse the extra charges and accordingly provisionally the amount was fixed at Rs.69,000/- to be paid to the first respondent and after adjusting the advance of Rs.56,000/- paid at Punalur and Rs.6,000/- paid at the time of reloading at Kottarakkara, Rs.59,000/- was agreed to be paid by the second respondent and it is based on that agreement the articles were taken to Jullunder. It was contended that trailer was illegally detained by second respondent and therefore only second respondent is liable and first respondent is not entitled to the decree against appellant. Second respondent in his written statement contended that there is no privity of contract with the first respondent and second respondent is not a party to the transaction of the appellant and the first respondent. It was A.S.457/95-D 6 contended that appellant agreed to carry the boiler and the accessories from Punalur to Kapurthala for a consolidated freight charge of Rs.25,000/- and the weight of the boiler and the accessories was 16 metric tonnes and it was the appellant who engaged the first respondent and it was known to the second respondent only later and appellant received Rs.4,000/- from second respondent on 4.10.1980 towards lump sum carrying charges and passed a lorry receipt for Rs.29,052/- as carrying charges and the vehicle traveled safely at Kapurthala on 8.12.1980 and there was a delay of more than one month and as per the agreement with the appellant first respondent has to pay freight charge of Rs.25,000/-, re-loading charge of Rs.9,000/- at Kottarakkara and the excess freight charges of Rs.20,000/- and detention charges of Rs.15,000/- and that amount was paid to the appellant by 2.11.1980 and when the vehicle reached at the premises of Kapurthala on 8.12.1980 appellant did not send any representative for weighment as agreed in Ext.B1 and in spite of repeated requests the trailer was detained therein and the second respondent is not liable for any damages. 2. Learned Sub judge framed the necessary issues. On A.S.457/95-D 7 the evidence of PW1 and Exts.A1 to A17 on the side of the first respondent and DW1 and Exts.B1 to 13 on the side of appellant. Learned Sub Judge granted a decree holding that the trailer was detained at the premises of second respondent for 52 days and therefore first respondent is entitled to get damages @ Rs.1,000/- per day. It was also found that as evidenced by Ext.A1 to A4 bills first respondent is entitled to Rs.9842.43/- being the value of the articles purchased for carrying out the repair of the vehicle. Though Rs.40,000/- was claimed towards the expenses of first respondent to go to Jullunder to stay there and make arrangements for litigation, learned Sub Judge awarded Rs.10,000/- under that head. Finding that under Ext.A3 first respondent is entitled to Rs.9,000/- for excess weight and Rs.15,000/- for detention charges, deducting the amount already paid trial court directed appellant to pay to the first respondent Rs.22,943.43/-. The judgment is challenged in the appeal. 3. Though notice was sent to the first respondent he did not appear. So also, the second respondent. 4. Learned counsel appearing for the appellant was heard. The argument of the learned counsel is that first A.S.457/95-D 8 respondent was entrusted with the boiler and the accessories to be transported to the office of the second respondent as instructed by him on the representation of second respondent that they weigh 15 metric tonnes and 2 metirc tonens respectively and when the vehicle capsized and it was claimed that it was due to overweight Ext.A13 agreement was entered into with the first respondent whereunder the terms were modified and Rs.20,000/- was paid for purchase of tyres and other expenses and Rs.15,000/- was fixed as the detention charges and it was agreed to weigh the boiler and the accessories and if it is found that they were weighing more than 15 tonnes, additional charges @ Rs.2,000/- per tonne is to be paid to the first respondent and second respondent also agreed to the same and when the consignment reached Kapurthala, they were illegally detained by second respondent and therefore second respondent is liable to pay damages and not the appellant and the decree as against the appellant is unsustainable. 5. Learned counsel argued that the learned Sub Judge did not properly appreciate the evidence and on the evidence it should have been found that first respondent is not entitled to a A.S.457/95-D 9 decree against the appellant. The argument of the learned counsel is that as is clear from the facts and the evidence of PW1 the loss sustained by first respondent was on account of the detention of the trailer at the premises of the second respondent at Kapurthala and as it was not due to the fault of the appellant but only due to the act of the second respondent, if at all only the second respondent is liable and the decree as against the appellant is not sustainable. 6. The boiler and the accessories transported by the first respondent from Punalur to Kapurthala admittedly belonged to second respondent. It is also admitted case that there was no privity of contract between first respondent and second respondent. Instead second respondent entrusted the boiler and the accessories with the appellant and it is the appellant who entrusted the consignment to the first respondent. Ext.B4 and B5, goods forwarding notes establish that on 14.10.1980 the boiler and the accessories were entrusted by the second respondent to the appellant. It is admitted by appellant that they entrusted the consignment to Kapurthala office of the second respondent under Ext.B7 and B8 delivery receipts on A.S.457/95-D 10 14.11.1980. It is also admitted case that erlier after the boiler and the accessories were loaded and the trailer was proceeding towards Kapurthala from Punalur and reached Kottarakkara about 24 km from Punalur, the trailer capsized and first respondent raised a contention that it was on account of over weight. Ext.A13 agreement was thereafter entered into between the appellant and first respondent on 20.11.1980. Under Ext.A1 appellant agreed to pay detention charge of Rs.15,000/- and in addition to the freight charges originally fixed, appellant agreed to pay enhanced freight charges at the rate of Rs.2,000/- per tonne for every additional tonne above 15 metric tonnes. It is also seen from Ext.A1 that Rs.20,000/- was paid to the first respondent for purchase of tyres and other immediate expenses as the vehicle was capsized. Ext..B11 letter sent by the appellant to the second respondent shows that there was an oral agreement between the appellant and the second respondent and Ext.B11 was sent pursuant to that agreement. Under Ext.B11 second respondent had agreed to pay freight charges of Rs.25,000/- on the assumption that it weighs 16 metric tonnes and a reloading charge of Rs.9,000/- at Kottarakkara where the A.S.457/95-D 11 trailer had capsized and Rs.20,000/- as additional expenses incurred by the first respondent. It further provides that “It was also agreed upon that in case the weight of the boiler, (which will be reweighed in Kapurthala/Delhi in the presence of the representative of the appellant and second respondent after the consignment reaches, the boiler would be weighed in the presence of the representative of the appellant”. It is also stated that in case the weight increases 26 metric tonnes but does not exceed refund @ Rs.2,000/- per tonne is to be paid and if the weight does not exceed 16 metric tonnes are found @ Rs.2,000/- will be made. It also provides that the weight is less than 16 metric tonnes appellant would refund Rs.11,400/-. It is basing on Ext.B11 second respondent detained the vehicle at Kapurthala. 7. Learned Sub Judge found that it is on account of fault of the appellant the vehicle was detained for 52 days at Kapurthala and therefore appellant is bound to pay that amount. Learned Sub Judge also found that the appellant is also liable to pay the additional charges of Rs.9,000 as stated in Ext.A13 and the expenses of the parts purchased evidenced by Ext.A4 to A6 A.S.457/95-D 12 bills and Rs.10,000/- being the incidental expenses. On the evidence it is clear that under Ext.A13 appellant had agreed to pay Rs.15,000/- as detention charges for the period the vehicle was detained at Kottarakkara and Rs.2,000/- per tonne for the excess weight above 15 metric tonnes and the boiler and the accessories are to be weighed before delivery. Ext.B11 establish that there was an obligation on the part of the appellant to send representative when the consignment reaches at the office of the second respondent so that it could be weighed in the presence of the second respondent and representative of appellant. As stated earlier Ext.B11 enables the second respondent to get refund of a portion of Rs.59,000/-, admittedly paid by him, in case the weight of the boiler is less than 16 metric tonnes. It also casts a liability on the second respondent to pay excess charges for the weight above 26 metric tonnes, in case it is found above the said weight. It is the case of the second respondent that in view of the agreement evidenced by Ext.B11, second respondent is entitled to get the boiler and the accessories weighed and the actual weight fixed before taking delivery. It is precisely for that reason, the vehicle was detained by second A.S.457/95-D 13 respondent at their premises. Ext.B11 agreement justifies that act. The argument of the learned counsel appearing for appellant is that though not in the presence of the second respondent, the boiler was weighed, after it was transported from Kottarakkara, at Salem evidenced by Ext.A1 (Ext.B1 is the copy available with the appellant) and it was found that the weight is above 36 metric tonnes and therefore second respondent is not entitled to claim any refund and therefore there was no justification for unauthorisedly detaining the vehicle at Kapurthala. It was argued that the liability to compensate the first respondent is only on the second respondent and not the appellant. 8. Even though Ext.A1 shows that the trailer and the accessories were weighed at Salem on 9.11.1980, Ext.B11 shows that the oral agreement entered into by the appellant and the second respondent, through the Manager of the appellant at Delhi was subsequent to the weighing evidenced by Ext.A1. Ext.B11 is seen written on 19.11.1980 when Ext.A1 was on 9.11.1980. If the correctness of weighing of the consignment at Salem was agreeable to the second respondent, there was no A.S.457/95-D 14 necessity for making a provision, as seen in Ext.B11 for refund of excess payment, after re-weighing of the boiler and the accessories when it reaches at Kapurthala and that too in the presence of representatives of the appellant. Therefore it cannot be said that the insistence of the second respondent for weighing the boiler and accessories in the presence of the representatives of the appellant was unfounded or unjustifiable. When Ext.A11 agreement between the parties provide for it second respondent is entitled for it. If it is taken that the second respondent was justified in detaining the vehicle, it cannot be said that the vehicle was illegally detained at Kapurthala for 52 days. But first respondent, the owner of the trailer, is definitely entitled to claim the damages for that detention. When there is no privity of contract between the first respondent and second respondent, first respondent cannot sue the second respondent. On the other hand the contract is between the appellant and the first respondent. As per the contract, first respondent has to deliver the consignment at the premises of the second respondent as instructed by the appellant. If while delivering the consignment, second respondent unlawfully detains the A.S.457/95-D 15 trailer, the responsibility is that of the appellant. May be, if the second respondent is not authorised to detain it, appellant could claim indemnification from the second respondent. But as against first respondent, it is the appellant who is liable to pay the damages. Therefore learned Sub Judge was justified in finding that it is the appellant who has to pay the amount to the first respondent. The quantum of damages fixed by the learned Sub Judge was also just and proper. I find no reason to interfere with the quantum. 8. Learned counsel appearing for the appellant argued that even though issue No.10 was framed on whether the appellant is entitled to be indemnified by the second respondent, learned Sub Judge did not render a finding on that issue. The question of indemnification arises only if the first defendant seeks a decree as against second respondent in the event of a decree passed against him and that too on payment of court fee. When the appellant did not pay the court fee and did not seek a decree, as against the second defendant, it is not necessary to decide whether appellant is entitled to be indemnified by second respondent in this appeal. Moreover, it is not taken as a ground A.S.457/95-D 16 in the appeal memorandum. Therefore appellant is entitled to claim the indemnification in the suit. If entitled to appellant is entitled claim it in separate proceedings. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb