IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 AS.No. 609 of 2000(C) --------------------------- O.S.130/1995 of ADDL.SUB COURT, N. PARAVUR .................... APPELLANT(S)/DEFENDANTS 1 TO 3 ------------------------------------------- 1. M/S. WESTERN CARRIERS, 67/28, STRAND ROAD, CALCUTTA - 700 006, REPRESENTED BY ITS REGIONLA MANAGER. S.L. JAIN, MADRAS REGION. 2. M/S. WESTERN CARRIERS, REGIONAL OFFICE, 88, N.S.C. BOSE ROAD, MADRAS, REPRESENTED BY ITS REGIONAL MANAGER, S.L. JAIN. 3. M/S. WESTERN CARRIERS, BRANCH OFFICE, MATTANCHERRY, COCHIN, REPRESENTED BY COCHIN BRANCH MANAGER, K. SIVANANDA BHAT. BY ADV. SRI.T.A.NARAYANAN NAIR RESPONDENT(S)/PLAINTIFFS & 4TH DEFENDANT --------------------------------------------------------- 1. M/S. ANNA ALUMINIUM VESSELS, KIZHAKKAMBALAM P.O., ALUVA, KERALA, REPRESENTED BY THEIR SPECIAL POWER OF ATTORNEY M/S. NEW INDIA ASSURANCEE CO. LTD., NEW INDIA ASSURANCE BUILDING, 87, M.G. ROAD, FORT BOMBAY. 2. M/S. NEW INDIA ASSURANCE CO. LTD., NEW INDIA ASSURANCE BUILDING, 87, M.G.RAOD, FORT BOMBAY, REPRESENTED BY DIVISIONLA MANAGER, KADAVATH SHOPPING COMPLEX, SUB JAIL ROAD, ALWAYE. 3. M/S. BHARATH ALUMINIUM CO. LTD., BALCO TOWNSHIP P.O. COBRA DISTRICT, BILASPUR (M.P.). R2 BY ADVS. SRI.GEORGE KARITHANAM VARGHESE, SRI.JOSEPH A.VADAKKEL. SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.C.I.ABRAHAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. ........................................... A.S.NO.609 OF 2000 ............................................. Dated this the 13th day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Additional Subordinate Judge, North Paravur in O.S.No.130/1995. The suit is one for compensation. The brief facts necessary for the disposal of the appeal are stated as follows: 2. The first plaintiff is carrying on business at Kizhakkambalam, Aluva and the second plaintiff is the company doing insurance business. Defendants 1 to 3 are carriers. The plaintiffs have entrusted the carriers to carry C.R.P coils of alumnium. It is the contention of the plaintiffs that the consignment when reached the destination was destroyed to a great extent and therefore, they had incurred a damage of Rs.1,18,331/=. Of this Rs.58,428/= was adjusted towards salvage value and the damage sustained is Rs.59,903/=. The insurance company had paid the amount and had got a letter of subrogation and thus the suit is instituted with the junction of the first plaintiff. : 2 : A.S.NO.609 OF 2000 3. On the contra, the carriers would contend that they are not responsible for the damages. The claim is not properly proved. No notice of inspection had been given by the surveyor, the first plaintiff is not registered and hence incompetent to file the suit. The quantum estimated is high. 4. On an analysis of the entire materials, the court below found that the plaintiffs are entitled to decree and granted 18% interest. It is against that decision, the carriers have come up in appeal. 5. The learned counsel for the appellants would contend before me that the defendants have contended that the first plaintiff is an unregistered firm and therefore there is bar under Section 69 of the Partnership Act to file the suit. It is also contended that no survey notice has been given and therefore, the damage assessed is also improper. It has to be stated that when a suit is instituted under the Carriers Act, a common carrier is liable for the loss or damage caused by neglect or fraud of himself or his agent. Section 9 : 3 : A.S.NO.609 OF 2000 of the Carriers Act makes it very clear that there is no necessity to prove negligence on the part of the person claiming because it is the duty of the carrier to deliver the goods safely in the destination. Section 10 of the Act stipulates that a claim has to be made before the authority within a period of six months or so. 6. Now the first question raised by the learned counsel for the appellants is regarding non registration of the firm. At the outset, I may like to state that the pleadings are not very specific and clear. As usual, in the opening paragraph of the written statement it is contended that the suit is not maintainable and later in another paragraph it is stated that the firm is not registered. The contention that the suit is not maintainable under Section 69 of the Partnership Act is not properly registered. I am saying so for the reason that whether it is a registered firm or an unregistered firm is a matter of evidence and unless real pleadings specifically to that effect, it will be difficult for anybody to arrive at a decision. On this score a specific issue is also not seen : 4 : A.S.NO.609 OF 2000 raised. 7. The learned counsel for the appellants had cited before me a decision of the Patna High Court reported in Basant Lal Jain v. Union of India (AIR 1965 Patna 426). In that case it can be seen that the plaintiffs' firm was not registered. Therefore an issue was raised whether the suit was maintainable in its present form. Even if that contention is accepted, on a reading of the commentary by Pollock & Mulla, the Indian Partnership Act 7th edition, the authors had considered various decisions in page 298 (ix) which is extracted as follows: “The assignment of its rights to indemnification by the consignor would not be invalid on the ground that the consignor, being an unregistered firm, could not institute a suit to recover damages from the carried on account of the bar engrafted under S.69(2), because there is no prohibition against an unregistered firm assigning its rights to third parties and the third parties suing on the basis thereof. In other words, the embargo under S.69(2) would not apply to third party assignees of the rights of an unregistered firm. It was, therefore, held that, the suit against the carrier for recovery of damages would be maintainable individually by the assignee insurance company alone without impleading : 5 : A.S.NO.609 OF 2000 the consignor unregistered firm as a co- plaintiff”. 8. So the principle laid down therein is to the effect that even if it is an unregistered firm, when it assigns its right in favoaur of the insurance company, the insurance company is not governed by Section 69 can institute suit. Further I may also like to point out that the suit is not really based on a contract but is based on a statutory liability. Section 69 of the Indian Partnership Act only prohibits a suit of contractual nature. When it is a statutory right, I hold the view that Section 69 will not operate as a bar. Since there is a power of attorney as well as a letter of subrogation is there, I hold that the plaintiffs are entitled to the relief prayed for. 9. The other point highlighted is regarding non issuance of notice before serving. The trial court had considered the decision reported in Associated Transport Corporation v. National Insurance Company (1989 (1) KLT 386). It was a case where there was no other material on record other than the survery's report. It was not even properly proved. But : 6 : A.S.NO.609 OF 2000 here is a case where the survey report has been submitted before the court and it has been proved by examining the surveyor and survery's report gives the entire particulars necessary for consideration. Similarly the plaintiffs' representative had also spoken about the damages sustained. The damage sustained to 1623 Kgs is also given by carrier but subject to without prejudice. So the fact that emanate from the materials available are that aluminum materials were loaded and transported and there was damage and the court below has found that there is real damage sustained on account of the conduct of the carrier. It has only awarded a reasonable amount as per the value and has given its on reasons for awarding so. But I find that the court below has granted interest at the rate of 18%. It is improper. It is true that the matter should have been settled but the rate of interest cannot be at this rate and therefore I reduce the interest to 12% from the date of suit till realisation. 10. In the result, the judgment and decree of the trial court are confirmed with the modification that the : 7 : A.S.NO.609 OF 2000 plaintiffs are entitled to interest at the rate of 12% per annum from the date of suit till realisation with costs. parties are directed to bear their respective costs in the appeal. The appeal is disposed of as above. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.609 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.609 OF 2000 ............................................. 13th day of September, 2010. J U D G M E N T