IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 AS.No. 682 of 2001(E) --------------------- OS.26/1995 of SUB COURT, CHERTHALA .................... APPELLANT/DEFENDANT: --------------------------- BEEJAY ROADWAYS (RGD), REPRESENTED BY ITS PROPRIETOR - REGISTERED OFFICE, KADALUVALLIL, PANANGAD P.O., KOCHI BRANCH OFFICE IN SEVERAL PLACES AMONG OTHERS AT ALAPPUZHA. BY ADV. MR.S.DILEEP RESPONDENTS/PLAINTIFFS: ------------------------------ 1. ORIENTAL INSURANCE CO.LTD., REGISTERED OFFICE AT JEEVAN UDYOGA ASAF ALI ROAD, NEW DELHI, DIVISIONAL OFFICE, THIRUVALLA, ALAPPUZHA DISTRICT, REPRESENTED BY ITS PRINCIPAL OFFICER AND DIVISIONAL MANAGER, SABU LONAPPAN, DIVISIONAL OFFICE, MARTHOMA BUILDINGS, 1ST FLOOR, THIRUVALLA. 2. ST.MARY'S OIL MILLS, AROOR, ALAPPUZHA, REPRESENTED BY ITS PROPRIETOR P.V.ALEXANDER, ST.MARY'S OIL MILLS, P.B.NO.13, DEVELOPMENT AREA, AROOR. ADV. MR.GEORGE CHERIAN (THIRUVALLA) FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ A.S.No.682 Of 2001 ---------------------- Dated this the 13th day of July, 2010. J U D G M E N T The defendant in O.S.No.26 of 1995 on the file of the Sub Court, Cherthala is the appellant. Suit is for realisation of damages. Suit is decreed and the first plaintiff is allowed to realise an amount of Rs.35,098/- together with 12% interest. Parties are hereinafter referred to as the plaintiffs and defendant as arrayed in the suit. 2. The suit was filed by the plaintiffs for realisation of damages from the defendant alleging that due to rash and negligent act of the defendant plaintiffs sustained damages. The second plaintiff had entrusted a consignment of 520 packages of coconut oil to the defendant, the contracting carriers namely, M/s.Beejay Roadways (Regd) in good order and sound condition for carrying the same from Aroor and delivery at Patna to the consignee, M/s.Jaiswal and Sons, Haldi Patty, Maroofganj, Patna. The allegation of the plaintiffs is that the defendant failed to carry and deliver the same in the same condition as they were entrusted to the consignee. According to the plaintiffs, due to A.S.No.682 Of 2001 ::2:: the rash and negligent driving of the driver of the lorry some of the containers were found to be in leaking condition which caused shortage in the consignment. Consequently, the consignee M/s. Jaiswal & Sons demanded open delivery. Ultimately it was found that 922 Kilograms of coconut oil was found short and oil tins were also found damaged. According to the plaintiffs the damage of the consignment was due to gross negligence and utter carelessness of the carriers. 3. The defendant in the written statement denied the plaint allegations and prayed for dismissal of the suit. The defendant contended that the suit is not maintainable for the reason that the person who signed the plaint has no competency to represent the plaintiff's firm; that the second plaintiff has transported the consignment at his own risk and the defendant is not liable to pay damages and plaintiffs have sustained any loss or damages due to the negligence on the part of the defendant and that the leakage was caused due to poor quality of the packing materials. Ext.A1 is the insurance policy issued by the first plaintiff company. The amount insured was for Rs.4,80,000/- with lorry Beejay Roadways, LR.No.1931 dated A.S.No.682 Of 2001 ::3:: 23.4.1993. Ext.A2 is the letter issued by the defendant company to the plaintiff wherein the defendant has stated that the consignment as per lorry receipt No.1931 dated 23.4.1993 booked by the defendant company to be delivered at Patna and the following items were found in leaking condition while delivering the goods. The details are narrated in Ext.A2. Ext.A3 is the claim bill placed by the second plaintiff before the first plaintiff for settlement of the claim. Ext.A4 is the letter issued by the second plaintiff to the transporting company claiming damages of Rs.51,651.24/-. Ext.A5 is the acknowledgement card and Ext.A6 is the letter of subrogation. 4. The survey report has not been marked in evidence. The trial court held that there is admission on the part of the defendant that 920 kilograms of coconut oils were lost during transportation of the goods therefore, there is no necessity for marking the survey report in this case. The court further held that it is quite unbelievable to hear that the defendant carrier has no responsibility while transporting the goods from the destination of consignor to the consignee's destination. When there is leakage of the oil during the transit the burden is upon A.S.No.682 Of 2001 ::4:: the defendant to prove that it was beyond his control. But no evidence has been let in by the defendant to prove that it is occurred due to reasons beyond its control. The trial court after appreciating the evidence on merits held that the defendant carrier is liable for the damages sustained. 5. The trial court examined the oral and documentary evidence and found that the plaint allegations stands proved. DW1 has admitted the quantity of damages sustained to the plaintiff. The defendant failed to prove that the packing was not in good condition and the damages has been caused due to bad road condition. The burden is on the defendant to prove that it was beyond his control. After analysing the evidence on record it is found that the damages was caused due to negligence of the defendant carrier. The appellant has not made out any valid grounds to interfere with the findings of the court below. I fully agree with the findings recorded by the trial court. In the result, appeal fails and accordingly, it is dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-