THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.1667 OF 1993 Between: M/s.Raju Oil Mills, Hindupur, rep. by its Proprietor O.A.Adiraju ..Appellant Vs M/s.Bright Transport Company, No.411 Ashirvad Building, P.D.Meolo Road, Bombay and another …Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.1667 OF 1993 JUDGMENT:- The second defendant in O.S.No.18 of 1986 on the file of the court of Additional District Judge, Hindupur is the appellant herein. The suit was filed for recovery of an amount of Rs.1,71,052-50 paise being the value of the goods lost in transit. The allegations in the plaint goes to show that the plaintiff has despatched 53 drums of ground nut oil at the request of the M/S.Sha Some Chand Kanji & Company at Bombay on 08-02-1983. The goods were insured with second defendant for a sum of Rs.1,30,000/-. The necessary premium was also paid and the policy covered road risks, theft, non-delivery etc. The first defendant is the transport company and a common carrier was engages to transport the above goods. One Balbirsingh was driver along with another cleaner by name Sivadesan Vidyullatha. The property was entrusted on 08-02-1983 under an invoice and necessary bills were issued and loaded in the truck MHB 4424 from Hindupur to consignee. The goods should have reached Bombay within two or three days but did not reach the consignee and by letter dated 11-02-1983 the consignee informed the goods have not reached. Thereafter, a police report was given by the plaintiff to Hindupur police on 12-02-1983 and the plaintiff came to know that the truck was found empty and abandoned near Devpadu Taluq, Penvel District, Rajgad, Maharastra and driver and cleaner was absconding. Consequently, a second complaint was also given on 18-02-1983. Subsequently, one Ranjit driver of the first defendant went to the place where truck was abandoned and gave a complaint to the police. The plaintiff also reported the matter to the second defendant on several times and claim forms were sent on 02-05- 1983 and first defendant was also called upon to make goods the loss and as both defendants did not respond, the suit was filed. The first defendant remained ex parte and second defendant filed the written statement contending that the suit is not maintainable and second defendant is not aware of the transaction and the loss of the goods. Issue of the policy in favour of the plaintiff is admitted and the liability is subject to conditions. The second defendant is not aware as to the truck MHB 4424 belonging to the first defendant. The plaintiff has entrusted the goods to the driver of the truck and not to the common carrier. The second defendant further contended that as per their information collected by the Surveyor the first defendant has no knowledge about entrustment of the goods by the plaintiff and the driver had been specifically instructed to bring back the tanker empty after unloading the chemicals at Ranipet and the act of the driver in accepting this consignment is not valid. Therefore, there is no contractual obligation enforceable against the second defendant. The value of the goods is also disputed. The information from the first defendant gathered by the Surveyor shows that there was no branch for them at Hindupur and the documents produced by the plaintiff are not true and there is no liability for the second defendant and therefore pleaded for dismissal of the suit. On the basis of the above pleadings, the following issues have been framed for trial. 1. Whether the entrustment of 53 drums of weighing 9540 Kgs of ground nut oil to D-1 to be transported to Bombay at the instance of M/s Krishna & Co. Bangalore is true? 2. Whether the plaintiff entered into any contract of carriage with D-1 for transport of goods? 3. Whether the plaintiff contracted with the driver of D-1 company and if so, whether he had no authority to transport the goods? 4. Whether the hired tanker carried the ground nut oil drums as alleged by the plaintiff to be delivered to M/s Sha Some Chand Kanji & Company, Oil and Oil Seeds Merchants and Commission Agents, Bombay? 5. Whether the suit is bad for non-joinder of parties viz., driver of the vehicle? 6. Whether the value of the ground nut oil transported is Rs.1,25,928/- as claimed by the plaintiff? 7. Whether D-2 is liable for the suit claim? 8. Whether the plaintiff is entitled to a decree for the suit amount? 9. To what relief? On behalf of the plaintiff PWs. 1 to 3 were examined and marked Exs.A-1 to A-5. On behalf of the second defendant, legal officer was examined as DW.1 and marked Exs.B-1 to B-5. After considering the evidence on record, the learned District Judge decreed the suit of the plaintiff for Rs.1,25,928/- with proportionate costs. Aggrieved by the said judgment the present appeal is filed. The points that arise for consideration are:- (1) Whether the plaintiff is entitled for the value of the goods which were lost in transit? (2) Whether the second defendant is liable to make goods the loss under the policy of the insurance? (3) Whether the judgment and decree passed by the learned District Judge is legal and sustainable? (4) To what relief? POINTS:- The learned Additional District Judge after consideration of the evidence on record clearly found that there was entrustment of consignment to the first defendant and the second defendant has also issued a policy covering the risk. In fact after assessment of the evidence, the learned District Judge came to the conclusion that the Surveyor’s report clearly goes to show that tanker was abandoned by the driver and it was loaded with the goods and there is no unnaturality of the tanker coming to Hindupur empty and the loading of the tanker there when it is going. The first defendant was not summoned by the Insurance Company to explain the circumstances as to how the tanker was employed. Therefore, the learned District Judge came to the conclusion that the tanker was engaged with the knowledge of the first defendant and it is not a direct transaction between the plaintiff and the driver of the lorry. When once the claim of the plaintiff that there was a proper authorisation to the driver of the first defendant and it is not a private transaction is accepted, the appellant cannot escape the liability under the insurance policy. In fact even the Surveyor’s report does not show that there was any collusion between the plaintiff and the driver of the tanker. Further more, the tanker was found abandoned and Ex.A-2 is way bill and Ex.A-4 policy clearly shows that the consignment is despatched to oil tanker bearing No.MHB 4424 on or about 06-02-1983. Having issued the policy and having accepted the transport under the said tanker, it is not open for the appellant to contend that the driver was not authorised and that there is a contract only between the plaintiff and the driver excluding the carrier. The learned counsel for the appellant contends that the policy was effective from 09-02-1983 and the despatch was on 06-02-1983 and if really the plaintiff is a bona fide the policy should have been taken when the goods were despatched. But it is also the duty of the appellant before the issuing the policy to know about the bona fides or mala fides if any. In fact the policy Ex.A-4 clearly shows that the tanker left on 06- 02-1983 from Hindupur and it covers the road risk, theft, non-delivery. The policy is evidently dated 09-02-1983 and there is no restriction about the effectiveness of the policy. The evidence of DW.1 clearly goes to show that Ex.A-4 policy was taken at Bangalore covering the vehicle. He also admits that the policy shows that the goods were despatched on 06- 02-1983. Therefore, it is quite clear that the insurance company has entered into a policy of insurance after the despatch of the goods and its intention to exclude the liability from 06-02-1983 is not clear. It is also admitted by the appellant in letter dated 04-03-1985. In fact under that letter the Divisional Manager requested the Insurance Company to settle the claim early. Further, it is to be mentioned that when the issuance of the policy is not seriously disputed, the fraud if any has to be corrected by defendant. The defendant has failed. Learned counsel for the appellant relied on a decision reported in M/s. Economic Roadways Corpn. Hyderabad Vs. National Insurance Company, Hyderabad and another ([1]) and contends that there is no need to examine the Surveyor and the report can be taken into consideration. It is true that the report of the Surveyor may be relevant but in order to accept, it should be proved. It is not a verification of fact shown by the Surveyor but is the investigation said to have been done from the statements of the witnesses who are not before the court. If the Surveyor is to estimate the loss etc., it is a different matter but opinion about the particular fact said to have been gathered from the witnesses has to be proved. Therefore, the facts in the decision relied on by the learned counsel for the appellant are different from the facts of the present case. Learned counsel for the appellant contends that under Section 10 of the Carriers Act, 1865 notice also be given to the Insurance Company and in the absence of notice, it is not valid. He relied on a decision reported in P.Rama Rao Vs. P.Nirmala and others ([2]) contending that mere marking of a copy of notice to the Insurance Company is not sufficient when it was not issued within six months as laid down in Section 10. Therefore, according to him, the suit is bad. On the other hand, the learned counsel for the respondent contends that the plea now sought to be canvassed was not pleaded before the lower court and it amounts to a waiver because it is a question of fact and it cannot be permitted to be raised. Further more, according to him, the report of the Surveyor under Ex.A-4 clearly goes to show that on instructions of the appellant only the survey was conducted and the complaint was lodged by the plaintiff about the loss. Therefore, it cannot be said that the appellant has no information or notice of the claim of loss to the appellant and on the other hand, matter was reported to the appellant by the plaintiff and thereafter only the survey investigation was taken up on 12- 02-1983. Therefore, it is quite clear that the appellant had accepted the notice of the loss and missing of the goods and further more on 02-05- 1983 the notice was given to the first defendant under Ex.B-4 and copy of it was marked to the appellant which is a document filed by the appellant. Therefore, in view of the above circumstances, it is not correct on the part of the appellant to contend that there is no proper notice as contemplated under Section 10 of the Carriers Act. Sofar as the liability is concerned, evidently the policy clearly shows that the goods were loaded on 06-02-1983 and the goods were entrusted only on 08-02-1983 and evidently by the time they reach the place where it was abandoned is on 10-02-1983 and by that time there was a valid insurance coverage and the defendant cannot deny the liability. The acceptance of the policy even if it is to be taken has effect only from 09-02-1983 the risk is covered and the decision relied by the counsel for the appellant have no relevancy. Therefore, the learned District Judge has rightly decreed the suit of the plaintiff and it does not call for any interference. Accordingly the points are answered. The Appeal Suit is therefore dismissed with costs. _______________________ N.R.L.NAGESWARA RAO,J 31-12-2010 TSNR [1] 2002(1) LS 128(D.B) [2] 1997(4) ALT 279 (S.C)