IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 RSA.No. 534 of 2008 --------------------------------- AS.347/2005 of II ADDL.DISTRICT COURT, ERNAKULAM OS.2/2001 of SUB COURT, MUVATTUPUZHA .................... APPELLANT/APPELLANT/DEFENDANT: SUPER TRANSPORT COMPANY,, A.M.ROAD, KOTHAMANGALAM, REP. BY ITS MANAGING PARTNER JAMES MATHEW, S/O.LATE MATHEW, A.M.ROAD, ANGADI KARA, KOTHAMANGALAM VILLAGE. BY ADV. SRI.THOMAS M.JACOB SRI.G.RAJAGOPAL RESPONDENT/RESPONDENT/PLAINTIFF: M/S.TATA TEA LTD., MUNNAR REP. BY P/A M/S.UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, MUVATTUPUZHA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.534 of 2008 --------------------------- JUDGMENT The defendant in O.S.No.2/01 on the file of the Sub Court, Muvattupuzha is the appellant in this Regular Second Appeal, assailing the decree awarded in favour of the respondent for recovery of damages by concurrent verdicts of the courts below. 2. The respondent/plaintiff filed O.S.No.2/01 aforesaid for a decree for recovery of damages from the appellant/defendant, who is a public carrier, inter alia, on the allegations that the plaintiff M/s.Tata Tea Ltd., Munnar is a company engaged in the business of Tea and having its office at Munnar and is having a Marine Cargo Transit Policy of M/s.United India Insurance Company Ltd., Munnar Branch, bearing Policy No.101104/21/16/21039/97; that the plaintiff is represented by its special Power of Attorney Holder M/s.United India Insurance Company Ltd.; that the defendant M/s.Super Transport company is a fleet owner and transport RSA 534/08 2 contractor having its office at Kothamangalam and is a public carrier engaged in the business of transporting goods; that the plaintiff despatched 468 cartons of tea, having a net weight of 6926.4 kgs., from its Mattupetty Packing Centre through the defendant to M/s.Vijaya Lakshmi Agencies, the C & F Agents for Tata Tea Ltd., situated in Survey No.186/4 of Pune Village, Thane as per STA No. 9805389 dated 28.6.1998 in the vehicle bearing Reg. No.KL-7/C 6351; that the consignment was packed and entrusted with the defendant in good condition and the defendant should have delivered it to the consignee at Thane in good condition; that the consignment reached the destination on 2.7.2008; that when the consignment reached the consignee's Thane godown, 46 cartons, weighing 912 kgs., were under water damaged conditions; that the above damage was caused due to the negligence of the defendant; that the defendant issued an Open Delivery Certificate admitting the said loss and RSA 534/08 3 damage; that if the defendant had taken proper care and caution, the loss caused could have been avoided and the defendant is liable for the damages caused to them and is liable to compensate the same; that they had issued statutory notice on 3.12.1998 and a bill on 16.12.1998 demanding Rs.79,474/- for the loss sustained by them due to the defendant's negligent handling of the goods in transit; that the defendant had accepted the said notice; that M/s.United India Insurance Company Ltd., Munnar Branch had issued a Marine Cargo Transit Open Policy to them and the subject of insurance was various tea items to be transported from any of their factory, godown, packing centre and estate to any part of India; that the transit in this case from Mattupetty Packing Centre to Thane was also covered by the policy; that when the defendant did not pay for the damages caused, they preferred claim with M/s.United India Insurance Company Ltd., Munnar and the insurer paid a sum of RSA 534/08 4 Rs.81,324/- as per disbursement voucher No.141 dated 10.2.1999 towards the loss sustained by them; that the loss sustained by them was determined by M/s.United India Insurance Company Ltd. on the basis of Survey Report submitted by M/s.Young India Engineers and Surveyors; that thereafter they have subrogated their claim against the defendant in favour of the insurer as per letter of subrogation and special Power of Attorney dated 10.2.1999; that an amount of Rs.81,324/-, being the principal and an amount of Rs.27,447/-, being the interest from 10.2.1999 till the date of suit, is due from the defendant and that thus, they are entitled to realise Rs.1,08,771/- from the defendant. Hence, the suit. 3. The defendant filed written statement resisting the claim contending that the plaintiff has no cause of action against them; that they have no right, title or ownership over the consignment; that as per the provisions of the Sale of Goods RSA 534/08 5 Act, if a consignment is entrusted to the carrier for transportation to the consignee, the right, title and ownership of the consignment will stand transferred to the consignee at the time of entrustment of the consignment and the consignor is left with no right over the goods; that no transaction had taken place within the jurisdiction of the trial court, namely, the Sub Court, Muvattupuzha; that the said court has no territorial jurisdiction to try the suit; that it is incorrect to say that goods were delivered in damaged condition and the plaintiff sustained damage due to their negligence; that the goods were delivered in the condition in which the plaintiff entrusted them; that they have transported the goods with much care and caution; that no loss was caused due to any laches on their part; that it is true that they had issued an Open Delivery Certificate to the plaintiff, but that was not issued admitting the liability of loss or damage; RSA 534/08 6 that the goods were damaged not because of any negligence on their part; that they are in no way liable to give any damage to the plaintiff; that they have not received any statutory notice as stated in paragraph 8 of the plaint; that they are not aware of the statements in paragraph 9 of the plaint; that they do not know whether the plaintiff had insured the goods with M/s.United India Insurance Company Ltd. and whether the insurance company had settled the claim; that they are not aware of the alleged survey; that it is known that survey was conducted after a long delay, that too without giving any notice to them; that during this time the goods were kept in a most careless manner; that if at all any amount is given by United India Insurance Company to the plaintiff, that may be because of some understanding between them and they are not liable to pay any amount to the plaintiff; that the alleged Power of Attorney and the letter of subrogation are not admissible and sustainable; RSA 534/08 7 that the amount claimed by the plaintiff is too high and without any basis; that the plaintiff or the United India Insurance Company has no cause of action against them; that no amount is liable to be received from them; that the goods might have been damaged due to the inherent nature or defective processing or defective packing, which were done by the plaintiff; that the loss and salvage value were fixed arbitrarily and unilaterally and that the suit has, therefore, to be dismissed. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the case in the light of the evidence adduced at trial, which consisted of only oral evidence of PW1 and documentary evidence Exhibits A1 to A13, decreed the suit in favour of the plaintiff as prayed for. A.S.No.347/05 filed by the appellant/ defendant assailing the decree so passed by the trial court was also dismissed, confirming the decree of the trial court. Hence this Regular RSA 534/08 8 Second Appeal. 5. It is vehemently contended before me by the learned counsel for the appellant that the right in the goods entrusted for being transported to the consignee stands transferred to the consignee the moment the consignor entrusts the goods for transportation and therefore, a claim for damages by the consignor or by the insurance company, who got subrogated in the place of consignor, is not maintainable and further that the claim in the suit for recovery of damages for the damages alleged to have been caused to the goods during the transit, quantifying the damages on the basis of surveyor's report got prepared behind the back of the carrier and without notice to the appellant/defendant, is not maintainable. 6. The first contention that has been advanced is on the basis of a Division Bench decision of this Court in Transport Corporation of India Ltd. v. United India Insurance Co. Ltd. (2001 (2) KLT RSA 534/08 9 445), wherein, the contention raised by the defendant was that the consignee has become the owner of the property, which contention was not denied by the plaintiffs and the consignee was not made a party either and the plaintiffs did not prove or give evidence also regarding any contract between the plaintiffs and the defendant and the court held that both plaintiffs were not competent to institute the suit for damages. The position is not the same as far as the present case is concerned. It is the case of the plaintiff that the goods were entrusted with the defendant/carrier for being transported to their C&F Agents at Thane, which was M/s.Vijaya Lakshmi Agencies. Though the appellant/defendant had raised a contention that by entrustment of the goods there is transfer of title in goods in favour of the consignee, they have no case that the consignee, M/s.Vijaya Lakshmi Agencies, is not their C&F Agent. When the consignment is forwarded to a consignee and when RSA 534/08 10 the consignee is the C&F Agent of the consignor or when the consignee is the consignor himself at a different place, the question of title in the goods getting transferred to the consignee does not arise and the decision in Transport Corporation of India (cited supra) has no application to the facts of this case. 7. The second contention advanced before me that based on the report of the surveyor the quantum of damages cannot be fixed, as the surveyor's report was prepared without notice to the appellant/defendant, is relying on a Division Bench decision of this Court in Associated Transport Corporation (P) Ltd. v. National Insurance Co. Ltd. (1989 (1) KLT 386). I am of the view that on the facts of this case, the said decision has no application for the following reasons: Exhibit A8 is the Open Delivery Certificate issued by the defendant to the plaintiff M/s.Tata RSA 534/08 11 Tea Ltd. and is dated 28.12.1998. It is seen therefrom that entrustment of the consignment was on 28.6.1998 and delivery of the consignment was on 2.7.1998. Exhibit A10 Survey Report showed that on 10.7.1998, 11.7.1998 and 23.7.1998 survey was conducted. It is alleged that survey was conducted without notice to the appellant and not in their presence. If the appellant/defendant was not convinced of the damage and loss, they would not have issued Open Delivery Certificate on 28.12.1998, specifying that 100 gms. packing contained in 22 cartons, 25 gms. packing contained in 4 cartons and small packets of Rupee one contained in 20 cartons were in wet condition. Further, the remarks in Column 10(a) of Exhibit A8 show that the above quantity of the consignment was not delivered as per the invoice number noted above. This means that delivery of the consignment on 2.7.1998 was excluding the quantity found in wet condition, as noted in Column 10(b) of Exhibit A8. RSA 534/08 12 Obviously, therefore, it was after the preparation of survey report in the presence of the appellant/ defendant that delivery was effected and that was in any event after 23.7.1998. Though Exhibit A8 is dated 28.12.1998, even according to the counsel for the appellant, the surveyor's report showed that certain quantities were salvaged from out of the cartons found in wet condition and damage was assessed only for the balance. When the damaged cartons were in possession of the appellant/ defendant themselves, the contention that survey was conducted without notice to the appellant/ defendant is devoid of merit. 8. The further argument that is advanced on the basis of the printed endorsements in Exhibit A8 Open Delivery Certificate is that the certificate was issued only to claim loss and that the certificate does not constitute any admission of liability or claim whatsoever on the part of the transport company. One cannot be blind to the RSA 534/08 13 aspect that when damage is caused to the goods at the hands of the carrier, the certificate kept in the format maintained by the transport company alone will be issued and the consignor will not be able to compel the transport company to issue a certificate conforming to the truth and even obtaining such certificate, in the nature of Exhibit A8, will be at the mercy of the transport company. 9. It is further worthy to note that the appellant/defendant, who contends that the report of the surveyor cannot be accepted as one quantifying damages for the actual loss, did not want to summon the surveyor and examine him to establish the contention that the report of the surveyor lacks evidenciary value for reason of any infirmity whatsoever. It is further worthy to note that the defendant has not adduced any evidence in the case, either oral or documentary and has deprived an opportunity for the plaintiff to obtain RSA 534/08 14 the details from the representatives of the appellant company as to the real facts. Thus, the appellant/defendant was contesting the suit raising ever so many contentions available, but, which were all against their own records, which were available with the plaintiff and produced by them. 10. It is seen from the appeal memorandum that a contention is raised on the basis of subrogation that the insurance company alone could come forward as plaintiff, though such a contention was not urged before me. The contention, however, stands answered by the decision cited by the learned counsel for the appellant in Associated Transport Corporation's case (cited supra), wherein, it was held that when the insurance company is subrogated to the rights of the insured, the insurance company is entitled to file a suit in the name of the insured and if the suit is by the consignee, even after its claim is paid by the insurance company, it is still maintainable, especially when the RSA 534/08 15 second plaintiff in that suit was the consignee himself, who has joined along with the insurance company to claim damages. The difference as far as this suit is concerned is that the consignor and the insurance company are the plaintiffs, as there is no transfer of title in the goods in favour of the consignee. Thus, there is absolutely no merit in this Regular Second Appeal and there is no question of law and much less, any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal in limine, refusing admission. 30th July, 2008 (K.P.Balachandran, Judge) tkv