IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 RSA.No. 492 of 2003() --------------------- AS.130/2001 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.858/1999 of II ADDL.MUNSIFF'S COURT, ERNAKULAM .................... APPELANTS/APPELLANTS/DEFENDANTS: ----------------- 1. M/S.TRANSPORT CORPORATION OF INDIA LTD., REG. OFFICE 1.7.293, M.G. ROAD, SECUNDRABAD, ANDHRA PRADESH. 2. M/S.TRANSPORT CORPORATION OF INDIA LTD., DOOR NO.38/292, T.D. ROAD, ERNAKULAM. BY ADV. SRI.T.V.GEORGE RESPONDENTS/RESPONDENTS/PLAINTIFF: -------------------- 1. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, NO.2, OPP: PADMA, M.G. ROAD, ERNAKULAM, KOCHI-34, REP. BY ASST. DIVISIONAL MANAGER. 2. THE KERALA STATE CO-OPERATIVE RUBBER MARKETING FEDERATION LTD., REP. BY THE SPECIAL POWER OF ATTORNEY HOLDER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, NO.2, M.G. ROAD, KOCHI-35. ADV. SRI.T.J.LAKSHMANAN IYER FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A..NO.200 OF 2003 IN R.S.A. NO.492/2003 --------------------------------- DISMISSED 28/3/2011 Sd/- HARUN0-UL-RASHID, JUDGE. TRUE COPY HARUN-UL-RASHID,J. ------------------------------- R.S.A. NO. 492 OF 2003 ------------------------------- DATED THIS THE 28TH DAY OF MARCH, 2011 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “1) Can Ext.A2 special power of attorney to be treated as a valid power of attorney, in view of the fact that the same has neither been executed before a Notary Public nor authenticated by a Notary Public as contemplated U/s.85 of the Evidence Act? 2) Can the contents of Ext.A5 open delivery certificate be looked into by the court, when the same has been got merely marked as an exhibit by a third person, who has no connection with the execution of that document? 3) Is the court competent to fix the quantum of damages and award damages in a suit for recovery of loss an damages to the goods in transit, in the absence of a proper survey report or other reliable evidences? 4) Does the mere issuance of a letter of subrogation by the insured give any right to the insurer to sue in his own name? 5) Is an assignment of a marine policy by endorsement necessary to constitute an assignment of policy contemplated u/s.52(3) of Marine Insurance Act? 6) Can an officer of the lst plaintiff-company verify and sign the plaint on behalf of the 2nd plaintiff consignee in the absence of a valid power of attorney? -2- R.S.A.No.492/2003 2. Defendants in O.S.No.858/99 on the file of the II Additional Munsiff's Court, Ernakulam are the appellants. The appeal is directed against the judgment and decree in A.S.No.130/01 on the file of the VI Additional District Court, Ernakulam. The suit is for realisation of money. The trial court decreed the suit and declared that the plaintiff is entitled to realise an amount of Rs.21,905/- with 12% interest from 22/11/1997 till the date of decree and 6% future interest till realisation on the principal amount. The Lower Appellate Court confirmed the decree and judgment passed by the trial court. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 3. The case of the plaintiffs is that M/s. Meenachil Rubber Marketing and Processing Co-operative Society Ltd., who is the consignor and authorised agent of the 2nd plaintiff, entrusted a consignment of 60% concentrated rubber latex of 42 drums as per sales Bill No.8403 dated 1/11/1997 for safe carriage from Pala to the branch office of the 2nd plaintiff at Faridabad. The consignment was short delivered and was found in damaged condition. On -3- R.S.A.No.492/2003 receipt of the consignment the consignee noticed that two drums have totally been leaked out and 5 drums were partially leaked. According to the plaintiff, the leakage was caused solely due to the negligence of the defendant and its employees. It is the further case of the plaintiff that on noticing the damages caused to the goods, the defendants issued an open delivery certificate on 22/11/1997 accepting the incident. A Surveyor was appointed. He assessed the damages worth Rs.21,905/-. It is also pleaded that the defendants have agreed to the quantum of the loss in transit and issued a short delivery certificate on 22/11/1997. The demand of the 2nd plaintiff for payment of the amount was rejected by the defendants and therefore the 2nd plaintiff along with the lst plaintiff, who being the insurer, lodged a claim. The Insurance Company issued a letter demanding payment from the defendants. Since the amount was not paid by the defendants, the suit was filed for realisation of Rs.22,129/- with interest. 4. The defendants filed a detailed written statement denying the plaint averments and prayed for dismissal of the suit. -4- R.S.A.No.492/2003 According to them, the consignment entrusted with them was properly delivered to the consignee, that no damage was caused to the goods and therefore no loss was caused to the plaintiffs. It is also contended that there was no negligence on the part of the officers of the defendants, that they have not issued any open delivery certificate and that the open delivery certificate relied on by the plaintiffs is a fabricated document. It is also contended that the suit is liable to be dismissed on the sole ground that the suit has not been properly signed and properly verified by a competent person and that the person, who signed and verified the plaint, has no right or authority to verify or sign the plaint on behalf of the 2nd plaintiff. 5. The trial court examined all the contentions of the parties with reference to the materials on record. The plaintiffs alone have adduced oral and documentary evidence. PW1 was examined on the side of the plaintiffs. No oral and documentary evidence was adduced by the defendants. 6. The definite case of the plaintiff is that the -5- R.S.A.No.492/2003 consignment was short delivered and was in a damaged condition. The plaintiffs adduced evidence in support of their case that the damage caused to the goods is due to the negligence of the defendants and their employees. The lst plaintiff issued Ext.P10 notice demanding payment, which the lst plaintiff had made to the 2nd plaintiff towards the damages caused due to the negligence of the defendants. The court below relied on Ext.A10 and held that the plaintiff had issued notice as contemplated under Section 10 of the Carriers Act. Plaintiffs also produced Ext.A5 open delivery certificate dated 22/11/1997 issued by the defendants after the incident. It has come out in evidence that immediately after the incident, a Surveyor was appointed and he assessed damages at Rs.21,905/-. On the basis of the survey report the defendants issued short delivery certificate dated 22/11/1997. It is not disputed that the lst plaintiff settled the claim of the 2nd plaintiff and paid Rs.22,129/-. The lst plaintiff-Insurance Company issued notice to the defendants demanding the amount paid to the 2nd plaintiff. All the contentions raised by the defendants were examined by the trial -6- R.S.A.No.492/2003 court in detail. The fact of entrustment of the goods to the defendants for delivery to Faridabad is not disputed. The trial court as well as the Appellate Court examined as to whether any damage is sustained to the goods before delivery at Faridabad. The fact finding courts relied on the oral evidence of PW1 and the documentary evidence adduced by the plaintiffs. The court below also heavily relied on Ext.A5 certificate issued by the defendant. The defendants pleaded that Ext.A5 is a fabricated certificate. The court below also noticed the fact that no oral or documentary evidence was adduced by the defendants in support of any one of their contentions. The fact finding court on facts held that Ext.A5 open delivery certificate issued by the defendants stands proved. The court below also observed that since the defendant did not enter the box and adduce evidence, the only inference that can be drawn from the circumstances is that Ext.A5 is issued by the defendants and as per the recitals in Ext.A1, it is crystal clear that the goods were damaged and the 2nd plaintiff sustained loss. The court below also examined the contentions of the defendants -7- R.S.A.No.492/2003 regarding the validity of the power of attorney executed by the 2nd plaintiff in favour of the lst plaintiff. The lst plaintiff is represented by the Assistant Divisional Manager, who according to the him, is the competent person to sign the plaint and institute the suit for and on behalf of the Company. The defendants contended that the plaint has not been properly signed and verified by the competent person and therefore the suit is liable to be dismissed on that sole ground. The trial court as well as the Appellate Court examined the power of attorney marked as Ext.A2 and followed the principles laid down in the decision reported in (AIR 1995 Himachal Pradesh 107) in which it was held that a close perusal of this document shows that endorsement in the form of certificate has been appended to this document, which shows that it was presented by the executant before the Notary Public. It also shows that the contends thereof were read over and explained to the executant which he admitted to be correct and thereafter it had been attested by the Notary Public, Chandigar. The trial court also discussed in detail the facts and circumstances with reference to the legal -8- R.S.A.No.492/2003 principles laid down by the different High Courts and observed that the intention of authentication is only that the executant is understood the facts of the document as true and admitting the power of attorney, discussed the evidence on record and concluded that the power of attorney executed is a valid document. The insurer is the lst plaintiff and the insured is the 2nd plaintiff and in chief examination PW1 deposed that the suit is instituted by the lst plaintiff on behalf of the 2nd plaintiff. The court below rightly held that since the insured and insurer are plaintiffs, it cannot be said that the lst plaintiff had sued in his own name alone. Therefore, the contention of the defendant that in order to maintain an action in his own name there must be an assignment of the name by the insured in favour of the insurer and therefore the insurer has no right to sue in a court of law in his own name, was rightly repelled. 7. On an appreciation of the evidence the fact finding courts also noticed the fact that the 2nd plaintiff had entrusted the consignment of 60% concentrated rubber latex of 42 drums with the defendants for safe carriage and that contrary to the undertaking -9- R.S.A.No.492/2003 the consignment was short delivered and was in damaged condition. The trial court also held that the survey report was not marked in this case and therefore the report was not relied on by both courts. At the same time, the court below relied on the oral and documentary evidence adduced by the plaintiffs in support of the claim for realisation of money from the defendants. The court on facts held that Ext.A5 is executed by the defendants and they are liable to pay the amount stated in Ext.A5 and that the plaintiff is entitled to realise the plaint claim with interest. 8. The Lower Appellate Court after considering all the materials on record, agreed with the findings of the trial court in all respects. All the contentions raised by the defendants have been re- agitated. The Appellate Court, after appreciating the evidence on record, held that that the Assistant Manager of the lst plaintiff, who signed the plaint, has authority as per Ext.A1 to file the suit on behalf of the Company and thus agreed with the findings entered by the trial court in this regard. The Appellate Court also examined all other contentions on merits including the genuineness of Ext.A5. -10- R.S.A.No.492/2003 The Lower Appellate Court on facts held that Ext.A5 would show that it was signed by the Branch Manager of the defendant Company and counter signed by the 2nd plaintiff. The Appellate Court on facts concluded that Exts.A3 sales bill and the Ext.A5 certificate would show that 42 drums were delivered and the total quantity of 42 drums was 8610 lts. and that only 8021 lts. of raw rubber latex were delivered. Therefore, the Appellate Court concluded that there was shortage of 589 lts. of raw rubber latex. The Appellate Court also concluded on facts that the defendants have failed to explain, who signed on behalf of the transporting company in Ext.A5 and that the defendants have not adduced any evidence in the matter to explain the same. The Appellate Court also noticed that Ext.A10 claim notice was sent by the lst plaintiff to the defendants on 24/6/1998; but the defendant did not send any reply to that notice. On the basis of the materials on record, the courts below rightly concluded that the plaintiffs are entitled to a decree. The findings entered by the trial court, which was -11- R.S.A.No.492/2003 confirmed by the Appellate Court, are solely based on facts. No question of law much less any substantial questions of law arise for consideration in the appeal. The appeal is devoid of any merit and therefore dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -12- R.S.A.No.492/2003 HARUN-UL-RASHID, J. ------------------------------------ S.A.NO. 492 OF 2003 ------------------------------------ JUDGMENT 28th March, 2011