IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 AS.No. 13 of 1997(E) -------------------- OS.803/1991 of SUB COURT, THRISSUR .................... APPELLANT/1ST DEFENDANT: -------------------------------------------- N.M. BHUVANANANDHAN, S/O.MADHAVAN, RESIDING AT NETTUVETTY HOUSE, PAZHUVIL WEST, THRISSUR DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADV. SRI.T.C.SURESH MENON. RESPONDENTS/PLAINTIFF/2ND DEFENDANT: -------------------------------------------------------------------- 1. NEW INDIA ASSURANCE COMPANY LIMITED, REPRESENTED BY ITS AUTHORISED AGENT DIVISIONAL MANAGER, DIVISIONAL OFFICE, PALACE ROAD, THRISSUR. 2. K.T. THOMAS, AGENT, MARKET ROAD, THRISSUR. R1 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 13 of 1997(E) ORDER ON C.M.P. NO.96/1997 IN A.S. NO.13/1997 DISMISSED 18/05/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... A.S.NO.13 OF 1997 ............................................. Dated this the 18th day of May, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.No.803/1991 of the Subordinate judge's Court, Thrissur. The plaintiff had filed a suit for reimbursement of the money paid under the insurance policy. The brief facts necessary for the disposal of the appeal are as follows: 2. The second defendant has entrusted the first defendant to carry luggage to a safe destination. On account of an accident, the coconut oil so transported suffered loss and thereafter the second defendant, who had insured the goods with the insurance company, settled the claim and also gave a letter or subrogation authorising the insurance company to move in accordance with law. On the basis of the authorisation of subrogation, the plaintiff has instituted a suit and the court below has granted a decree for Rs.50,824/= with 12% interest from the date of suit till the date of decree and 6% thereafter. It is against that decision, the first defendant has come up in appeal. 3. Learned counsel Sri. Appu very strongly contends : 2 : A.S.NO.13 OF 1997 that the court below has erred on the following grounds that; (1) it has no jurisdiction as it is one which will come under Section 165 of the Motor Vehicles Act. It is submitted that when the cause of action comes under Section 165, then Section 175 of the Motor Vehicles Act come into play. So the civil court has no jurisdiction. (2) Learned counsel then contends that the appellant is not a common carrier and (3) it is further submitted that Section 10 of the Carriers Act is not complied with and therefore, the matter has to be reconsidered and the suit has to be dismissed. 4. So far as the contention regarding the Motor Vehicles Act is concerned, learned counsel for the insurance company would contend that it is not a claim coming under the provisions of the Motor Vehicles Act for the reason that it is not a property belonging to a third party. Now what are the remedies for the plaintiff have to be looked into. If the second defendant has got a remedy on the civil side, then by virtue of the subrogation, the plaintiff also will get that right and also will be competent to institute the suit. : 3 : A.S.NO.13 OF 1997 The second defendant has entrusted the first defendant to transport the goods. It is the bounden duty of the transporter to deliver the goods safely at the point of destination. Provisions of the Carriers Act, 1865 defines a common carrier. A common carrier denotes a person, other than the Government, engaged in the business of transporting property under multimodal transport document or of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately. Here the appellant is a carrier. He is transporting the goods of others for hire. So, there cannot be any doubt that he will come within the ambit of common carrier defined under the Carriers Act, 1865. 5. Learned counsel would contend before me that though he has raised a contention that he is not a common carrier, it has not been properly answered by the court. When the facts are very clear as day light, no further material is to be pumped in to find out an answer. The first defendant namely the appellant, owner of a lorry : 4 : A.S.NO.13 OF 1997 transporting goods for hire, has to be held as a common carrier for the purpose of the Act. Then regarding jurisdictional aspect. When a claim is to be adjudicated under Section 166 of the Motor Vehicles Act, question of negligence may be of importance and unless that tortious act is established, provisions of the Motor Vehicles Act does not entitle a person to claim compensation. But it has to be claimed under the provisions of the Carriers Act, 1865. The only defence available for a carrier is act of God or special terms of the contract. Here there is no case that there was an act of God or that there was any special contract to the contrary. Section 9 of the Carriers Act very clearly states that in any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage it shall not be necessary for the plaintiff to prove that such loss, damage or non delivery was owing to the negligence or criminal act of the carrier, his servants or agents. Therefore the suit is perfectly within the ambit of the provisions of the Carriers Act. When the suit : 5 : A.S.NO.13 OF 1997 is maintainable on behalf of the second defendant under the provisions of the Carriers Act and if subrogation is done, the person who got himself subrogated certainly will be entitled to have all the rights of the second defendant. 6. Therefore, the next question to be considered is regarding the subrogation. Subrogation means substitution. The plaintiff and the second defendant independently had entered into a contract with respect to the goods and it was on the basis of that contract, the second defendant claimed against the plaintiff. But at the same time, the second defendant did have right against the carrier as well. When the second defendant opted to settle the matter with the plaintiff and thereby decided to transfer his right to get recovery of the amount from the first defendant, he had entered into a letter of subrogation thereby giving all the powers to the plaintiff to proceed in accordance with law. 7. The next contention raised is regarding notice of loss or injury which has to be given within a period of six months. It has been complied with. Here the second : 6 : A.S.NO.13 OF 1997 defendant had issued a notice in time and later had transferred that right in favour of the plaintiff. So, as the plaintiff gets substituted, any action taken by the previous person will be also beneficial to the plaintiff and therefore there is absolute compliance of Section 10 of the Carriers Act. So far as the quantum of damages is concerned, I had gone through the judgment of the learned Subordinate Judge. He had considered it on the basis of the documents available and also report and had arrived at a figure of 50824. It does not suffer from any infirmity as it is based on facts. 8. Learned counsel for the appellant would submit that non-junction of the insurance company of the lorry is fatal to the suit. As held by me since the suit is being decreed under the provisions of the Carriers Act, then certainly a question of indemnification does not arise and if the appellant has got any independent right, it is for him to pursue the same and one cannot compel the plaintiff to implead the insurance company in such a suit. Learned counsel for the appellant : 7 : A.S.NO.13 OF 1997 strongly pleads for some leniency on interest. I am persuaded to grant him some concession on the same. Therefore, I modify the decree of the trial court by granting interest at the rate of 6% from the date of suit till realisation. All other findings of the trial court stand confirmed. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.13 OF 1997 M.N. KRISHNAN, J. ........................................... A.S.NO.13 OF 1997 ............................................. 18th day of May, 2010. J U D G M E N T