IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 AS.No. 543 of 1998() ----------------------------- OS.458/1994 of SUB COURT, PALA .................... APPELLANT/1ST DEFENDANT: --------------------------------------------- V.P. KABEER, VYSAMPARAMBIL, S/O.CHARITHA RUBBERS, ERATTUPETTA. BY ADV. SRI JACOB THOMAS VELLUKUNNIL RESPONDENTS/PLAINTIFFS: ------------------------------------------ 1. M/S.MANUEL CARGO SERVICES, CHERPUNGAL P.O., PALAI, REPRESENTED BY THE MANAGING PARTNER, MATHEW MANNUEL, KOLADIYIL, CHERPUNGAL P.O., PALAI. 2. MATHEW MANUEL, KOLADIYIL HOUSE, CHERPUNGAL P.O., PALAI. 3. JESSY SEBASTIAN, NADAKKAL HOUSE, PERINGALAM P.O., POONJAR. R1 & R2 BY ADV. SRI.BECHU KURIAN THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 543 of 1998 ORDER ON C.M.P.NO.4669/1998 IN A.S. NO.543/1998 DISMISSED 30/09/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 543 OF 1998 = = = = = = = = = = = = = = = Dated this the 30th day of September, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Pala in O.S.458/94. The suit is one for realisation of damages. The brief facts necessary for the disposal of the appeal are stated as follows. The first defendant had entrusted rubber with the plaintiff Cargo Services for transportation of the same from Erattupetta to Bangalore. According to the first defendant it has to be carried to New Delhi and proper documents were given to the plaintiff's Cargo Services. Whatever it may be when it reached the Valayar check post on 20-10-92 it was detained by the Sales Tax authorities and later the vehicle was seized with the rubber and ultimately it resulted A.S. 543 OF 1998 -2- in detention of the vehicle without use for a period of 52 days and therefore the plaintiff's Cargo Services has filed a suit for damages. 2. On the other hand the first defendant would contend that nine tones of rubber was entrusted for transportation to Bangalore from Erattupetta with relevant documents and the vehicle was detained at Valayar check post and it was found that it was having more than 11 tones of rubber when it was weighed and the vehicle could not proceed to the destination on account of the conduct of the Cargo Services and its driver and therefore the plaintiff is not entitled to any relief. 3. The trial court on appreciation of the materials found the first defendant negligent and granted damages of Rs.36,057/- with 12%. It is against that decision the first defendant has come up in appeal. A.S. 543 OF 1998 -3- 4. Heard the learned counsel for both the sides. Learned counsel for the appellant would contend strongly before me that the materials available would indicate that the negligence is on the part of the driver of the Cargo Services and it was on account of his inaction the vehicle could not get clearance from the check post which resulted in the detention of the vehicle. It is also contended that all the documents were supplied to the driver and the said documents were seized from the vehicle by the authorities after the vehicle was seized. So it was only on account of the mal-practice played by the driver of the plaintiff that the whole incident took place and therefore being the act of its servant the Cargo Services is not entitled to any damages. 5. On the other hand the learned counsel for the respondents would submit that no proper A.S. 543 OF 1998 -4- documents were available and it is most probably on account of the same the tax authorities had retained and detained the vehicle which resulted in the non usage of the vehicle for a period of 52 days. Now it has to be stated that another person was travelling in the lorry at the time of the incident right from Erattupetta and his destination was Bangalore. According to the first defendant he has nothing to do with the 2nd defendant and he was only a passenger who was getting a lift from Erattupetta to Bangalore. On the contra the plaintiff would contend that he was a representative of the first defendant and therefore he is in the know of things. The crux of the matter is as follows. 6. When the vehicle reached Valayar check post it is submitted that the 2nd defendant got down from the lorry and went to the Sales Tax Office got a token and was about to proceed A.S. 543 OF 1998 -5- further. On seeing the token permission was not granted and it was intimated to the Sales Tax authorities who came there took both the driver and the 2nd defendant to the police station and thereafter had detained them and further actions were contemplated. 7. Now the learned counsel for the appellant would highlight before me that no document being given as contended by the plaintiff, certainly the authorities could not have seized those documents from the dash board of the lorry. Immediately one has to understand if really there were valid tangible acceptable documents the first conduct of the first defendant should have been to rush to the spot immediately on the knowledge of the detention of the vehicle, place them before the appropriate authorities and get clearance for further movement. It was absent. Further it is A.S. 543 OF 1998 -6- strengthened when it is stated by the trial court that the Rubber Board sanction has been obtained and it is dated 20.10.92. The trial court held that the said document could not have been issued prior to 10 a.m. on 20.10.92. Rubber was transported on 19.10.92. So it is very clear that the said document was not in existence when the vehicle started from Erattupetta to Bangalore. Therefore that solitary document would prove that what is stated by the first defendant is not correct. As stated by me earlier it would have been the attitude of the first defendant to get clearance if really there were proper documents. The tax authorities had issued notices wherein the irregular practice of the first defendant is highlighted and even it is alleged that the first defendant is in the habit of attempting to transport goods without the clearance from the A.S. 543 OF 1998 -7- Sales Tax Authorities. Therefore the case of the first defendant that all was well with him cannot be acceptable and therefore I agree with the trial court in holding that the first defendant is negligent or has not acted properly. That does not mean that the Cargo Services should be simply let free. They are responsible persons and when they are transporting materials from one State to other, the material documents necessary should be meticulously scrutinized and only on satisfaction of the same they should transport the materials. Here it is stated that though some documents were there and the driver was illiterate he thought that they would be proper and therefore did not pursue further. So there was laxity to some extent on the part of the driver but at the same time as highlighted by the learned counsel for the respondents being an A.S. 543 OF 1998 -8- illiterate man one cannot blame him totally for the same. It appears to me the 2nd defendant has some thing to do with the transaction but nothing has come out to prove it against him. Therefore taking into consideration the stock of the entire circumstances I find that the major contributory part is by the first defendant and there is some minor contribution on the part of the cargo driver as well. Similarly when the vehicle is detained and the driver is unable to drive the vehicle the Court below has awarded Rs.100/- each per day for 52 days. There is no case that the Cargo Services did not have any other vehicle for providing duty to the driver. Similarly there is some negligence on the part of the cargo services as well. Therefore considering all materials I deduct the damages awarded by Rs.10,000/- and fix it at Rs.26,057/-. Interest awarded at the rate of A.S. 543 OF 1998 -9- 12% is on the higher side because there is fault with both the parties and therefore I reduce it to 6% and therefore the appeal is partly allowed and a revised decree is passed as follows. 8. The plaintiff is given a decree for realisation of Rs.26,057/- with 6% interest on the said sum from the date of suit till realisation from the first defendant with proportionate costs. Parties are directed to bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. ul/- A.S. 543 OF 1998 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 543 OF 1998 = = = = = = = = = = = J U D G M E N T 30th September, 2010.