BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 17.07.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.847 of 1998 M/s.Caravan Goods Carriers .. Appellant / Defendant Vs. 1.M/s.Corborandum Universal Ltd., rep by Power Agent Subragi, M/s.National Insurance Company Limited, Rajaji Road, Chennai-1. 2.National Insurance Co., Ltd., Division No.II, No.28, Rajaji Salai, Madras-1. Rep. by Senior Divisional Manager. .. Respondents / Plaintiffs Prayer:-This appeal has been preferred under Section 96 of CPC against the decree and judgment dated 10.03.1997 made in O.S.No.8688 of 1996 on the file of II Additional Judge, City Civil Court, Chennai. For Appellant : Mr.V.Bhiman, Advocate For Respondents : Mr.G.Guruswaminathan, Advocate JUDGMENT This appeal has been directed against the decree and judgment in O.S.No.8688 of 1996 on the file of the II Additional Judge, City Civil Court, Chennai. 2.The suit for damages was filed by the plaintiffs. The first plaintiff had purchased a 200 tone capacity 4 pillar Hydraulic compacting press with two shuttles valuing Rs.12,57,971/-, from Electro Pneumatics and Hydraulics (I) (P) Limited, as per their invoice dated 28.03.1989. The said consignment was entrusted to the defendant, carrier at Bombay, for safe carriage and delivery at Madras to the first plaintiff. The second plaintiff is the Insurance Company under which the first plaintiff had insured the said consignment. According to the plaintiffs, during transit the said consignment got damaged due to an accident. After the accident the https://hcservices.ecourts.gov.in/hcservices/ damaged consignment was brought to the first plaintiff factory to assess the extent of damage to the consignment. The damaged consignment was packed and despatched to the suppliers at Bombay on 11.05.1989. As per the survey report the damage caused to the consignment due to the accident during transit comes to Rs.2,82,153/-. After deducting Rs.7,500/- towards salvage value, the amount due under the head of damages to the consignment comes to Rs.2,74,653/-. The plaintiffs have also claimed a sum of Rs.4,100/- towards reloading of the damaged press into lorry for onward transportation of Bombay for repairs, and a sum of Rs.32,044/- towards packing charges for damaged press at Madras & packing charges for replaced press at Bombay. Under the head Freight from Madras to Bombay the plaintiffs have also charged another sum of Rs.15,513/- and a sum of Rs.15,640/- was claimed towards freight from Bombay to Madras. Apart from this, the plaintiff have also claimed a sum of Rs.9,734/- towards transit premium. After deducting a sum of Rs.2,000/- towards cost of handling at Madras port, the plaintiffs resisted their claim to Rs.3,44,084/- towards damages caused to the consignment during transit by the defendant. On 13.04.1989 a claim was lodged under Section 10 of the Carriers Act, which was duly served on the defendant, but the defendant has failed to comply with the demand. Another demand was made on 27.04.1989, which was also served on the same date to the defendant, who issued their certificate confirming damage to the consignment. As per the provisions of the Carriers Act, the defendant being the Carrier of the suit consignment, which met with an accident and sustained damage, is liable to compensate the loss to the first plaintiff. As per Section 64 UM of the Insurance Act the damaged consignment soon after the accident was surveyed by a licensed surveyor. The consignment was insured with the second defendant under a policy of insurance bearing No.440001 and as per the terms and conditions of the policy of insurance the second plaintiff had paid a sum of Rs.3,44,084/- being the proportionate insured value after duly surveying the consignment damaged by a licenced surveyor. On receipt of such indemnity, the first plaintiff executed a letter of subrogation and special power of attorney in favour of the second plaintiff. Under such circumstance, the second plaintiff is entitled to maintain the suit against the defendant. Hence, the suit. 3.The defendant in his written statement would contend that the trial Court has no jurisdiction to try the suit as per the terms of the contract and there was no cause of action to the plaintiffs to file the suit. The lorry which carried the consignment met with an accident on the process of avoiding a buffalo being hit and that the accident occurred beyond the control of the driver of the vehicle and that there was absolutely no negligence on the part of the driver. Hence, the defendant would contend that he is not liable for the loss incurred due to the first plaintiff. According to the defendant, he is not aware of the goods being surveyed after the accident. The first plaintiff is put to strict proof that they incurred loss https://hcservices.ecourts.gov.in/hcservices/ amounting to Rs.3,36,350/. There is no privity of contract between the parties for payment of interest. Proper notice under Section 10 of the Carriers Act was not issued. The suit is barred by limitation. Hence, the suit is liable to be dismissed. 4.Before the trial Court, on the side of the plaintiff the Accounts Officer of the first plaintiff / company was examined as P.W.1 and the surveyor, who had conducted survey on the damaged consignment soon after the accident, was examined as P.W.2 and Ex.A.1 to Ex.A.11 were marked on the side of the plaintiff. Promotive Executive of the defendant's company was examined as D.W.1, but no exhibit was marked on the side of the defendant. After meticulously scanning the evidence both oral and documentary and after giving due consideration to the submissions made by the learned counsel on both sides, the learned trial Judge has decreed the suit as prayed for with costs, which necessitated the defendant to approach this Court by way of this appeal. 5.The points that arose for consideration in this appeal are as follows:- 1)Whether the amount of damage claimed by the plaintiffs under the plaint on the basis of survey reports Ex.A.6, Ex.A.7 & Ex.A.8 can be allowed? 2)Whether the decree and judgment in O.S.No.8688 of 1996 on the file of the II Additional Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal? 6.Point No.1 :- According to P.W.1, 200 tones of Hydraulic compacting press machine was purchased by the first plaintiff from Electro Pneumatics and Hydraulics (I) (P) Limited Bombay under Ex.A.1 and under Ex.A.2 - lorry receipt the said consignment was agreed to be transported to Chennai from Bombay by the defendant. In the cross-examination P.W.1 would admit that while the suit consignment was on transit the carrier met with an accident near Belgaum and that the first plaintiff had received the consignment in a damaged condition and they took delivery of the consignment after producing the original of Ex.A.2. The learned counsel for the respondent would contend that as per the terms and conditions in Ex.A.2 in case of any dispute only the Courts at Bangalore got jurisdiction to try the same. Admittedly Ex.A.2 is a Goods Consignment Note issued by the defendant. The first plaintiff has signed in Ex.A.2 for having taking delivery of the consignment in a damaged condition that does not mean that the plaintiff has agreed to the terms and condition printed on the back of Ex.A.2. The jurisdiction of the Court has been enshrined under Section 20 of CPC. As per Section 20(c) of CPC, the plaintiffs have got every right to file the suit in the place where the cause of action had arisen. Even in the cause of action column in the plaint, the plaintiff has stated that the cause of https://hcservices.ecourts.gov.in/hcservices/ action for the suit arose on 28.03.1989 when the consignment was entrusted to the defendant – carrier for safe carriage and delivery at Madras to the first plaintiff. Even Ex.A.5-damaged delivery certificate was also issued by the Territory Manager of the defendant only at Madras. The address given in Ex.A.5 for defendant is No.67, Moore Street, Madras-600 001. Under such circumstance, it cannot be said that the plaintiffs have chosen a wrong forum under a wrong jurisdiction to file the suit. Ex.A.5 the defendant would take a stand that the accident, which had occurred to the carrier lorry bearing Registration No.MEI 5512 during the transit of the suit consignment from Bombay to Madras on 1.4.1989 was not due to the negligence of the driver. But absolutely there was no material placed before this Court to show that the accident was only due to mis-major or due to act of god. 6(a)Relying on a ratio in 2000 (III) CTC 59 (Patel Roadways Ltd., Vs. Birla Yamaha Ltd), the learned counsel for the defendant would contend that at the time of accident there was rain at the place of accident and suddenly a buffalo crossed the road and to avoid hitting the said buffalo the driver of the lorry swerved the lorry, which resulted in the accident causing damage to the consignment and that the accident was not due to any negligent act of the driver, but only due to the act of God. The facts of the said case are that the respondent in that case viz., Birla Yamaha Ltd., had booked 237 consignments containing 267 generator sets at Ghaziabad in the State of Uttar Pradesh, with the appellant M/s.Patel Roadways Limited for transportation. Shortly after booking of the consignments, the goods booked by the respondent were destroyed in a fire, which took place in the godown of the appellant. The respondent made a claim for the value of the goods, for refund of freight charged and compensation for the loss. The matter was also referred to National Consumers Disputes Redressal Commission. The Commission held that under Section 9 of the Carriers Act the complainant is relieved from the burden of showing that the loss or non-delivery was owning to any negligence or criminal act and hence, the carrier is liable for the negligence and that the loss to the consignment was prima facie due to the negligence of the carrier. Aggrieved by the said order, the carrier / appellant filed the appeal under Section 23 of the Consumers Protection Act. After referring to various decisions and an elaborate discussion the Honourable Supreme Court, after quoting the passage from Halsbury's Laws of England, Third Edition, Vol 4 at PP 141- 143 that :- "A common carrier is responsible for the safety of the goods entrusted to him in all evens, except when loss or injury arises solely from act of God or the Queen's enemies or from the fault of the consignor, or inherent vice in the goods themselves. He is, therefore, liable even when he is overwhelmed and robbed by an irresistible number of persons. He is an insurer of the safety of the goods against every https://hcservices.ecourts.gov.in/hcservices/ thing extraneous which may cause loss or injury except the act of God or the queen's enemies and if there has been an unjustifiable deviation or negligence or other fundamental breach of contract on his part, he will be liable for loss or injury due to the Queen's enemies or, it would seems, due to act of God" held as follows:- "The question that remains to be considered is whether the principles of law discussed in the preceding paragraph is applicable in a proceeding before the consumer disputes redressal agency, particularly the National Commission. In this regard the contention of Shri Desai is that the use of the term 'suit' in section 9 of the Carriers Act shows that the provision is applicable only to cases field in civil Court and does not extend to proceedings before the National Commission which is a forum which is to decide complaints by consumers following a summary procedure. Elucidating the point Shri Desai submitted that in a proceeding before the National Commission the general principle that the burden to prove negligence lies on the party alleging negligence should be applicable thought he position may be different in a suit filed in a civil Court. The term 'suit' has not been defined in the Carries Act nor is it provided in the said Act that the term 'suit; will have the same meaning as in the Ciivl Procedure Code. Therefore, the ordinary dictionary meaning of the term will have to be taken for ascertaining its meaning." Ultimately the Honourable Apex Court held that the petition filed before the National Consumers Disputes Redressal Commission under the Consumers Protection Act is to be treated as a suit and dismissed the appeal. 6(b) The learned counsel appearing for the appellant relying on 2001 (2) MLJ 131 (The Glenmorgan Tea Estates Company a registered Partnership firm, owner of Glenmorgan Tea Estates and another Vs. Philip Mathew ) would contend that when the consignment got damaged due to heavy rain on its way to the destination, it will relieve the carrier from the burden of giving damage to the purchaser of the goods. The short facts of the said case are that the appellant had transported the cargo containing tea leaves through the respondent's lorry. During transit there was heavy downpour and there was flood everywhere and the driver of the lorry could not proceed further and hence, he stopped at a point. At that time the rain water entered into the cargo and damaged the entire tea leaves. Only under such circumstance, it has been held in that case that the driver of the carrier is noway responsible for the damage caused to the consignment, holding that the damage caused to the consignment was only the act of God. But in the case on hand, there is https://hcservices.ecourts.gov.in/hcservices/ absolutely no material placed before the trial Court to show that the consignment was damaged only due to the rain during the transit. There was also no material placed before the trial Court to show that due to heavy downpour lorry in the process of avoiding to hit the buffalo, which crossed the road, toppled down resulting damage to the consignment. 6(c)The next decision on which reliance was placed by the learned counsel for the appellant for the act of God is AIR 2002 RAJASTHAN 157 (State of Rajasthan Vs. Mehta Transport Company and others), wherein the damage to the consignment occurred due to an accident which resulted due to burst of a tyre of the vehicle. The Court held that no negligence can be foisted on the driver for the accident which occurred due to busting of the tyre of the vehicle. The relevant observation in the said judgment runs as follows:- "A common carrier is responsible for safety of goods except when loss is caused by an act of God. If the carrier wants exoneration from the liability he has to prove that he had taken such care which under the circumstances of the case, was reasonably and practically possible to ensure the safety of the goods." 6(d) The last dictum relied on by the learned counsel appearing for the appellant is 2004(3) MLJ 306 (Bond Food Products private Limited., Registered Office, Bangalore and another Vs. M/s.Planters Airways Limited, Bangalore). The above said dictum was relied on by the learned counsel for the appellant for his stand that the trial Court has no jurisdiction to try the suit. But as I have already observed in the earlier paragraph that in Ex.A.2 there is no acknowledgment of liability of the first plaintiff by signing the terms and conditions, which are seen on the reverse page of Ex.A.2, wherein it has been printed "Subject to Bangalore jurisdiction only". The first plaintiff has signed only for having taken delivery of the consignment in a damaged condition. In the absence of an agreement between the parties regarding the jurisdiction for filing a case in case of dispute, Section 20 of CPC will be applicable and as per Section 20(c) of CPC, since the cause of action of the suit transaction had arisen at Chennai under Ex.A.5, which was issued by the first plaintiff to the defendant at Madras, the suit filed before the City Civil Court at Madras by the plaintiffs cannot be said to be barred for want of jurisdiction. 6(e)The next objection raised by the learned counsel appearing for the appellant is that while a surveyor was appointed to survey the damages caused to the consignment, the defendant was not aware of it. But D.W.1, the Promotive Executive of the defendant – company, would admit in the cross-examination that a notice was given under Ex.A.4 by the first plaintiff to the defendant informing that the damaged goods are going to be surveyed by a surveyor. https://hcservices.ecourts.gov.in/hcservices/ 6(f)The learned counsel appearing for the 1st respondent in this appeal / first plaintiff would contend that P.W.2, a licensed surveyor, was appointed by the first plaintiff to assess the damages caused to the consignment during transit and that he after inspecting the damaged consignment had issued Exs.A.6 to 8 – reports and that the said licensed surveyor, P.W.2, is bound to file survey reports Exs.A.6 to 8 as per Section 64 UM of the Insurance Act, 1938, and that the survey reports filed by the licensed surveyor, who is bound to file the same under Section 64UM of the Insurance Act, are to be accepted in toto. For this proposition of law, the learned counsel for the respondents would rely on a ratio decidendi in the ratio reported in 2004(4) CTC 103 (Bond Food Products Private Ltd., Registered Officer at No.80, 4th Block, Koramangala, bangalore-560 034 and another VS. M/s.Planters Airays Ltd., 13/5, Kalasipalayam, New Extension I Floor, Bangalore-560 002), wherein after referring the observation made in Gwalior Transport Co. Lt., Vs. National Insurance Co. Ltd., (1991 ACJ 811) that : "The surveyor is an expert in the field of survey and unless there be something positive to discredit him, his assessment has to be accepted. It would have been better if he had assessed the quantum of damages in thepesence of the appellant. However, the plaintiff would not be non suited and the survey conducted by C.P.Sarwahi would not be discarded solely for this reason. A civil case has to be decided on preponderance of probabilities. The goods were delivered from the custody of the carrier to the consignor who was also the consignee and there was nothing which prevented the carrier from employing a surveyour for assessment of damages specially when an open delivery was being insisted upon. The carrier could also have insisted on a survey being conducted in this presence which was not done. In the matter of assessment of partial loss to the goods, some guesswork has to be allowed. The price of the contents of bales is based on the invoices. Discount has been given for the value of the salvage. Primarily, the payment was to be made by the insurance company because the consignor was claiming from it. There is no reason to assue that any extra or unreasonable assessment would have been acceptable to the insurance company" it has been held by this Court as follows:- "When the defendant/carrier failed to employ a surveyor for the assessment of the damages on his own and also failed to prove that they have not committed any negligence, the evidence of the Surveyor (P.W.2), the report of the surveyor (Ex.A.4), and his assessment with respect to the quantum of damages have to be accepted." https://hcservices.ecourts.gov.in/hcservices/ 6(g)The learned counsel appearing for the respondent would contend that the second plaintiff is the Insurance Company, under whom the first plaintiff had insured his suit consignment and that after the accident the damage caused to the consignment was surveyed through P.W.2 and as per Exs.A.6 to 8 – survey reports, the second plaintiff – Insurance Company has paid the damages to the tune of Rs.3,44,084/- to the first plaintiff, who in turn had executed the letter of subrogation under Ex.A.9 in favour of the second plaintiff to claim the amount paid by the second plaintiff to the first plaintiff from the defendant. In support of this claim the learned counsel for the respondents would rely on a ratio in 1988(1) LW 327 (Thiruppathi Venkatachalapathy Lorry Service Vs. The New Inida Assurance Company Limited), wherein the relevant observation runs as follows:- "The first plaintiff company is a statutory body. There is no necessity to create a false receipt under Ex.A.18 in favour of the second plaintiff. Even though the surveyor is not examined, the compensation amount paid by the first plaintiff to the second plaintiff is sufficiently proved as per Ex.A.18 receipt. It is not stated that the compensation paid to the second plaintiff is excessive. The Insurance Company has only filed the suit on the basis of the subrogation deed obtained from the second plaintiff. The subrogation arrangment entered into between the plaintiffs is binding on the first defendant. The amount claimed in the suit seems to be just, proper and correct. The first plaintiff is entitled to the decree amount as claimed in the plaint. The second defendant is added as a party to the suit so as to avoid multiplicity of proceedings." 6(h)Now the only point to be decided is whether the second plaintiff is entitled to a decree for the amount as claimed in the plaint. In the plaint, the plaintiff has claimed Rs.3,44,084/-. The basis for the suit claim is only on Exs.A.6 to 8 – survey reports. In Ex.A.8 - revised assessment, the surveyor has assessed the damages caused to the consignment in the accident as Rs.2,34,385/-. He has added 15% excises duty, 5% surcharge and 4% CST to the said amount and arrived at a total sum of Rs.2,82,153/-. Apart from this, he had deducted Rs.7,500/- towards salvage value. Thus the net amount under the damages to the consignment comes to Rs.2,74,653/-. To the said amount, he had added Rs.6,100/- on the basis of Bill No.10/89-90 and another Bill No.25/89-90. Under the head of 'repacking charges' the surveyor had added Rs.42,725/- to the above said sum. But he would state in the report that only on the basis of Bill No.116 dated 28.10.1989 from M/s.Specific Packers, he had included a sum of Rs.23,100/- and for the balance sum of Rs.19,625/- out of the claim of Rs.42,725/- under the head 'repacking charges', there is no bill produced. So for this amount of Rs.19,625/- the second plaintiff cannot make any claim since there was no bill referred to for the said amount by the surveyor under Ex.A.8. The freight charges amounting Rs.39,879, are all on the https://hcservices.ecourts.gov.in/hcservices/ basis of the Bill No.0012 dated 19.6.1989 and the Lorry Receipt No.D78 & D079 date 7.11.1989 and also on the basis of insurance premium on the basis of copy of the policy. So from the total assessment of damages for the consignment of Rs.2,34,385/- as per Ex.A.8, a sum of Rs.7,500/- towards salvages value is to be deducted, then it comes to Rs.2,26,885/- with this amount, a sum of Rs.39,879/- towards freight and insurance amount and a sum of Rs.6,100/- towards handling charges and a sum of Rs.23,100/- are to included, which comes to Rs.2,95,964/- only. Hence, I hold on Point No.1 that the second plaintiff is entitled to get a decree for a sum of Rs.2,95,964/- only. Point No.1 is answered accordingly. 7.Point No.2:- In view of my discussions in the earlier paragraphs, I hold on Point No.2 that the decree and judgment in O.S.No.8688 of 1996 on the file of II Additional Judge, City Civil Court, Chennai, is to be modified. 8.In fine, the appeal is partly allowed and the suit is decreed for a sum of Rs.2,95,964/- (Rupees two lakhs ninety five thousand and nine hundred sixty four) only in favour of the second plaintiff. In other respects the findings of the learned II Additional Judge, City Civil Court, Chennai, is confirmed. The second plaintiff is entitled to 9% interest on the said amount Rs.2,95,964/- from the date of suit till the date of realization, with proportionate costs through out. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar ssv To. 1. The Registrar,City Civil Court, Chennai 2. The Section Officer,V.R.Section, High Court, Madras. + 1 cc to M/s.Sampath Kumar,Advocate,SR.38403 + 1 cc to