IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 AS.No. 488 of 1995(C) --------------------- OS.667/1992 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/1st defendant -------------- M/S.KERALA TRANSPORT COMPANY, REP. BY ITS MANAGING PARTNER, P.V.CHANDRAN, Y.M.C.A ROAD KOZHIKODE BY ADV. SRI T.G.RAJENDRAN RESPONDENT(S)/PLAINTIFFS/DEFENDANTS: --------------- 1. M/S.NATIONAL INSURANCE CO. LTD. REP. BY ITS DIVISIONAL MANAGER, KOZHIKODE 2. M/S.PLY SAMRAT, CHANDIGARH 3. M/S.PLY SAMRAT, PANCHKULA 4. M/S.HUNSUR PLYWOOD WORKS PVT. LTD., HUNSUR, KARNATAKA STATE. R1 BY ADV. SRI.K.N.SIVASANKARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO. 3843/95 IN AS 488/95 DISMISSED 25/3/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ A.S.NO.488 OF 1995 ------------------------------------------ Dated 25th March 2009 JUDGMENT First defendant in O.S.667/1992 on the file of Sub court, Kozhikode is the appellant. Respondents 1 to 3 are the plaintiffs and fourth respondent is second defendant in the suit. Appellant is a common carrier. First respondent is a subsidiary of General Insurance Corporation and respondents 2 and 3 the two partnership firms at Chandigarh and Panchkula of Haryana district. Fourth respondent entrusted plywood sheets to appellant to be delivered to respondents 2 and 3 at Chandigarh and Panchkula respectively on 13/8/1990. Exts.A1 and A2 are the invoices. Under Ext.A1, 323 plywoods worth Rs.1,45,570.13 were entrusted to be delivered to second respondent and under Ext.A2, 295 plywood sheets worth Rs.1,20,735.97 were entrusted to be delivered to third respondent. Exts.A3 and A4 are the lorry receipts issued by the appellant to the second respondent. When the plywood sheets were delivered to respondents 2 and 3, finding AS 488/95 2 they were damaged that, as insisted by respondents 2 and 3 Exts.A6 and A7 open delivery certificates were issued by the appellant on 5/10/1990 stating that the damage may be due to heavy rain en-route. Surveyor was appointed to assess the damages caused to the consignments. Under Exts.A8 and A9 reports, surveyor fixed the damages caused to the consignments respectively at Rs.11,900/- and Rs.53,000/-. That damages were paid to respondents 2 and 3 by first respondent under Ext.A5 marine policy. Exts.A12 and A13 letters of subrogation were obtained from respondents 2 and 3. Exts.A10 and A11 notices were issued respectively by respondents 2 and 3 to the appellant demanding the amount. Earlier Ext.A14 notice was sent by first respondent under Ext.B1 reply notice appellant denied the liability. On the strength of Exts.A12 and A13 letter of subrogation first respondent instituted the suit claiming the amount paid to respondents 2 and 3 based on Exts.A8 and A9 reports of surveyor. (Judgment of trial court shows that there was a mistake in the index as Exts.A8 and A9 were wrongly shown as Exts.A6 and A7 and Exts.A6 and A7 are wrongly shown as Exts.A8 and A9). Respondents 1 to 3 instituted the AS 488/95 3 suit for realisation of Rs.67,658/- with interest at 18% per annum. Though fourth respondent was impleaded no relief was claimed against fourth respondent. Appellant/first defendant filed written statement admitting that the two consignments of plywood sheets entrusted to them to be delivered to respondents 2 and 3 at Chandigarh and Panchkula for which Exts.A3 and A4 lorry receipts were issued and they were delivered to respondents 2 and 3 on 5/10/1990 evidenced by Exts.A6 and A7 open delivery certificates issued and at that time the plywood sheets were found damaged. It was contended that the damage was not on account of negligence of the appellant but on account of failure of fourth respondent to pack them properly, even though it was rainy season. It was also contended that Exts.A3 and A4 lorry receipts contained special conditions and under Condition No.5 appellant is not liable for any loss or damage due to weather condition and as damage was on account of heavy rain, appellant is not liable. It is also contended that first respondent is not entitled to claim the amount under Exts.A12 and A13. 2. Learned Sub Judge on the pleadings formulated AS 488/95 4 necessary issues. On the side of respondents 1 to 3, PW1 was examined and Exts.A1 to A14 were marked. On the side of the appellant, no oral evidence was adduced. Only Ext.B1 reply notice sent to Ext.A14 notice of respondents was marked. 3. Learned Sub Judge on the evidence found that as evidenced by Exts.A1, A2, A3 and A4, two consignments of plywood sheets for Rs.1,45,570.13 and Rs.1,20,735.97 were entrusted to the appellant by fourth respondent to be delivered to respondents 2 and 3 respectively at Chandigarh and Panchkula of Haryana on 13/8/1990 and when they were delivered to respondents 2 and 3 on 5/10/1990 as proved by Exts.A6 and A7 open delivery certificates, plywood sheets were damaged and as evidenced by Exts.A8 and A9, damages caused to the plywood sheets was estimated by the surveyor and claimed in the plaint. Learned Sub Judge found that appellant did not adduce any evidence to prove that they have taken reasonable precautions to keep the goods properly to avoid damages due to rain and as the damage was caused due to rain, it is due to their negligence and therefore appellant is liable to pay for the damages caused. Finding that under Exts.A12 and A13 letters of AS 488/95 5 subrogation, first respondent is entitled to the damages under Ext.A5 policy, which was paid to respondents 2 and 3, learned Sub Judge held that first respondent is entitled to the decree as appellant is liable to reimburse the damages. Judgment is challenged in this appeal. 4. In the appeal memorandum appellant contended that trial court should have found that damages caused to the consignments was not due to the negligence of the appellant and therefore appellant is not liable for the damages. It was also contended that appellant had taken all reasonable steps to prevent any damage and the damage resulted was not due to any negligence on the part of the appellant but that of fourth respondent who did not pack the consignments properly to avoid damage during heavy rain and therefore appellant is not liable for the amount and the suit should have been dismissed. 5. Learned counsel appearing for appellant and first respondent were heard. 6. Learned counsel appearing for appellant relying on Section 6 of Carriers Act argued that on the reverse side of Exts.A3 and A4 lorry receipts the AS 488/95 6 conditions which were accepted by fourth respondent while entrusting the consignments are shown and it is a special contract as provided under Section 6 of Carriers Act. Exts.A3 and A4 show that if any damage was caused to the consignments, due to weather condition appellant is not liable and as damage was caused due to heavy rain, which is a weather condition, trial court should have found that appellant is not liable for the damages and therefore the decree is not sustainable. Learned counsel argued that fourth respondent was not examined and there is no evidence to prove that consignments were properly packed when the consignments were entrusted to appellant during rainy period and as consignments were not properly packed the damage was not due to negligence of the appellant and therefore the decree granted is to be set aside. 7. Learned counsel appearing for first respondent argued that even though special contract is pleaded in the written statement and was pressed into service based on Exts.A3 and A4 lorry receipts, and the terms of the contract are shown on the reverse side of Exts.A3 and A4, in the absence of evidence to prove that those conditions were brought to the notice of AS 488/95 7 fourth respondent/consignor, the conditions cannot be valid against fourth respondent or respondents 1 to 3 and therefore based on those conditions appellant is not entitled to avoid the liability. Learned counsel has relied on the decision of a learned Single Judge of this court in Economic Transport Organisation v. United India Insurance Co. Ltd. (1986 KLT 220) to support his arguments and submitted that the conditions printed in small letters on the reverse side of Exts.A3 and A4 cannot be taken as a special contract. Reliance was also placed on the decision in Oriental Fire & General Insurance Co. Ltd. and another v. New Suraj Transport Co.(P) Ltd.(1986 ACJ 259). Learned counsel relying on the decision of Division Bench of this court in Kerala Transport Co. v. Kunnath Textiles (1983 KLT 480) which was relied on by learned Sub Judge argued that when the appellant did not adduce any evidence to prove that sufficient precaution was taken to avoid damage to the consignments entrusted to them, trial court was perfectly justified in granting a decree based on Exts.A8 and A9 survey reports, when Exts.A6 and A7 open delivery certificates establish that there was damage as assessed by the surveyor under Exts.A8 and A9. AS 488/95 8 8. Appellant is admitting the entrustment of consignments under Exts.A3 and A4 covered by Exts.A1 and A2 invoices by fourth respondent on 13/8/1990. It is also not disputed that when the consignments were delivered to respondents 2 and 3 at Chandigarh and Panchkula on 5/10/1990, evidenced by Exts.A6 and A7 open delivery certificates, many of plywood sheets were damaged and were in a wet condition. In Exts.A6 and A7 it is also stated that lorry was covered with three tarpaulins and damage was due to heavy rain en-route. It is for that reason first respondent Insurance Company appointed a surveyor to assess the damages based on which Exts.A8 and A9 survey reports were filed. Exts.A8 and A9 survey reports establish that damages were caused to the plywood sheets in the consignments entrusted to appellant by fourth respondent and delivered to respondents 2 and 3. On those aspects there is no dispute. The question is whether damage to the plywood sheets sent under Exts.A3 and A4 were due to the negligence on the part of the appellant and if so, whether appellant is liable to re-imburse the damage paid by first respondent to respondents 2 and 3 and claim it under Exts.A12 and A13 letters of subrogation. AS 488/95 9 It is also to be decided whether there is a special contract as claimed by the appellant under Exts.A3 and A4 and if so whether due to the conditions appellant is not liable to re-imburse the first respondent. 9. Under Section 8 of Carriers Act every common carrier shall be liable to the owner for loss or damage to any property or article of transport and delivered by carrier where such damage was arisen from the negligence of the carrier or any of his agents or servants. Section 6 provides that liability of any common carrier for the loss or damage to the property shall be subject to any special contract signed by the owner of any such property so delivered to the common carrier. Evidence establish that when plywood sheets sent by fourth respondent under Exts.A3 and A4 receipts and delivered to respondents 2 and 3 under Exts.A6 and A7 certificates were damaged. Exts.A6 and A7 certificates establish that they were damaged due to heavy rain en-route. Question in such circumstances is whether damage was on account of negligence on the part of the appellant or not. Though appellant had contended that consignments were not properly packed and damage was caused on account of the said failure, no evidence AS 488/95 10 was adduced to prove that consignments were either not packed properly or was due to reasons beyond the control of the respondent. Exts.A6 and A7 open delivery certificates themselves establish that there was heavy rain en-route and it is due to that heavy rain damage was caused. Exts.A8 and A9 survey reports show that when consignments reached Gujarat, there was rain and it was stuck up at Gujarat in four feet water. In such circumstances, it is for the appellant to establish that sufficient precaution was taken to avoid such damage caused by the rain. Even if, it is taken that conditions written on the reverse side of Exts.A3 and A4 are valid and constitute special contract as provided under Section 6 of Carriers Act, and under condition No.5 damages due to weather condition is exempted, damage caused due to heavy rain as in this case cannot be termed weather conditions. It could only be a damage caused while transporting the consignments which was caused not due to weather condition but water entering the trailer as proper preventive measures to avoid leakage of water was not taken. When appellant did not adduce any evidence to prove that sufficient steps to avoid any entry of rain water into the articles carried AS 488/95 11 on transit and it is proved that damage was caused only due to the heavy rain en-route, it can only be found that damage was due to the negligence on the part of the appellant. Hence even if condition No.5 relied upon by the appellant in Exts.A3 and A4 are taken as valid contracts, it could only be found that the damage was caused due to negligence on the part of the appellant and not due to weather condition exempted thereunder. On the facts, learned Sub Judge was perfectly correct in holding that the damage was caused due to negligence of the appellant and appellant is liable to re-imburse first respondent insurance company for payment of damages caused to the consignments, on the strength of Exts.A12 and A13 letters of subrogation. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. AS 488/95 12 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.488 OF 1995 25th March 2009 ============================