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Judgment
This appeal is preferred against the judgment of the learned Subordinate Judge, Dindigul, passed in O.S.No.15 of 1985, dated 13.8.1987. The
defendant is the appellant herein.
The plaint averments are summarised as follows.
The first plaintiff entrusted 140 bags of Special Combed Cotton 100% Hosiery Cone Yarn valued at Rs.2,55,500 to the defendant''s branch at
Dindigul on 30.6.1984 for safe carriage by road from Dindigul to Calcutta, to be delivered to the first plaintiff''s depot-keeper M/s.Yarn Syndicate
Limited, Calcutta. Having accepted the entrustment, the defendant''s branch office at Dindigul issued Goods Consignment Note No.151-1816,
dated 30.6.1984, confirming the contract of carriage. The first plaintiff insured the above consignments with the second plaintiff under Marine
Open Policy to be compensated and indemnified by the second plaintiff against any probable loss that may occur during transit.
The consignment reached the destination on 7.7.1984 in water damaged condition. Out of 140 bags, 3 bags were short delivered and in 66
bags, the contents were badly water stained, discoloured and the cones were deshaped and twisted resulting loss in strength and quality. The
consignee immediately arranged for survey and M/s.Ghoah and Ghosh, Calcutta has assessed the damage at 60% of the value of the damaged 66
bags and submitted the report on 17.7.1984. The damage to the consignments is only due to the carelessness, negligence and wilful misconduct on
the part of the defendant, its men and agents. The first plaintiff lodged its claim to the defendant by its letter, dated 2.8.1984. The defendant
acknowledged the same on 4.8.1984 and sent a Damage Certificate dated 6.9.1984 confirming the shortage and damage as assessed by the
Surveyor, but however, the defendant denied its liability.
The second plaintiff, in pursuance of contract of insurance, settled the claim of the first plaintiff at Rs.79,025 being the value of the short
delivered and damaged consignments. The first plaintiff executed the letter of subrogation and Special Power of Attorney, dated 9.11.1984, in
favour of the second plaintiff. The defendant is legally liable not only as a Common Carrier, but also as an insurer of the consignments . The
plaintiffs jointly issued a lawyer''s notice, dated 22.11.1984, to the defendant to make good the loss. The defendant acknowledged the same on
24.11.1984, but has not chosen to liquidate the claim. Hence, the plaintiffs have filed the suit for directing the defendant to pay a sum of Rs.79,025
with interest thereon at the rate of 12% per annum and costs.
The defendant, in the written statement, contended as follows.
The first plaintiff engaged the defendant to deliver the goods of 140 bags of Special Combed Cotton 100% Hosiery cone yarn on 30.6.1984
intended to be delivered to the consignee M/s.Yarn Syndicate Limited, Calcutta and the first plaintiff assured that the intended delivery to be made
on the ''owner''s risk''. The first plaintiff has also assured that the goods were insured with the second plaintiff and the defendant issued the Goods
Consignment Note No. 151-1816, dated 30.6.1984, specifically stating ''on the owner''s risk''. It was agreed that the goods in transit would be on
the owner''s risk and hence the defendant is not liable even if any loss was sustained by the first plaintiff. The defendant delivered the goods on
7.7.1984 and the consignee accepted them without making any complaint. While the goods were in transit, due to heavy rain, accompanied by
ghastly winds, rain water might have entered through beneath the platform of the lorry without the defendant''s knowledge and due to unforeseen
circumstances. The defendant did not know about the survey conducted by M/s.Ghosh and Ghosh in the godown of consignee. No notice has
been given to the defendant before the survey and the consignee has not taken any steps to inspect the goods in the presence of the defendant. The
defendant is not accepting the survey report and the same is not binding on it. No particulars of damage have been given in the report and it is not
valid. The rain, which caused damage when the goods were in transit, is caused due to natural calamities and the same is act of God. Since the
goods were in transit on the owner''s risk and the goods were insured, the second plaintiff alone is liable to pay the losses. The damage was not
caused due to the negligence of the defendant or its men. Since the goods were in transit on owner''s risk, the defendant would not come under the
category of ""common Carrier and Insurer"". The defendant has issued certificate of damage on the consignee''s compulsion to get the losses from
the Insurance Company and the certificate was issued without prejudice, and it would not amount to acceptance of the survey report by the
defendant. The damage was caused due to act of God. There are dealers for damaged yarn and no account was mentioned for the salvage goods
in the plaint.
The learned Subordinate Judge, Dindigul, framed seven issues and after considering the oral and documentary evidence, concluded that the
defendant is liable for the suit claim and decreed the suit as prayed for with costs. Aggrieved by the same, the defendant has preferred the present
appeal. In this judgment, the parties are described as arrayed in the suit.
The points for consideration in this appeal are.
(1) Whether the defendant is absolved of its liability as contended by it.
(2) Whether the plaintiffs are entitled to the suit claim.
Points 1 and 2: The defendant admits the entrustment of 140 bags of Special Combed Cotton 100% Hosiery cone yarn valued at Rs.2,55,500
by the first plaintiff with its branch at Dindigul on 30.6.1984 for safe carriage by road from Dindigul to Calcutta to be delivered to M/s.Yarn
Syndicate Limited, Calcutta. Ex.A-1 is the Stock Transfer Challan, dated 30.6.1984, of the first plaintiff transferring the consignment of 140 bags
of cone yarn to the account of the consignee and the details of despatch through the defendant is also mentioned.
There is no dispute with regard to the delivery of the consignment in the destination on 7.7.1984. According to the plaintiffs, out of 140 bags, 3
bags were short delivered and in 66 bags, the contents were badly water stained and discoloured and cones were deshaped, resulting lose in
strength and quality and the surveyor M/s Ghosh and Ghosh, Calcutta had assessed the damage at 60% of the value of the damaged 66 bags and
submitted their report.
The first plaintiff lodged its claim on the defendant by its Ex,A-2 letter dated 2.8.1984 and in it, the first plaintiff had clearly mentioned about
the assessment made by the surveyor with regard to the damage and Shortage in the goods delivered and called upon the defendant to make good
the loss immediately. The defendant received the same and Ex.A-3 is the Postal acknowledgement. The defendant has given Witness Certificate,
dated 6.9.1984, to the first plaintiff which is marked as Ex.A-4 and in it, the defendant had certified that the consignment on reaching the
destination was partly water damaged and 3 bags were short delivered and the surveyor M/s.Ghosh and Ghosh has assessed the damage at 60%
of the original invoice value and in the remark colum, the defendant has stated that the consignment was booked at owner''s risk and due to heavy
rain, accompanied by ghastly winds in transit, the rain water might have entered through beneath the platform of the lorry and might have affected
the goods due to the unforeseen circumstances.
The first plaintiff preferred a claim to the insurer-second plaintiff and the second plaintiff settled the claim at Rs.79,025. Ex.A-5 is the receipt
given by the first plaintiff, to the second plaintiff for the settlement of the claim. Consequently, the first plaintiff has executed, Ex.A-6 Letter of
Subrogation in favour of the second plaintiff. Ex.A-7 is the suit notice issued by the plaintiffs through their counsel to the defendant calling upon it to
pay the amount claimed and Ex.A-8 is the Postal Acknowledgement.
The contention of the defendant is that the goods were in transit on the ''owner''s risk'' and the carrier is not liable for any damage, particularly
due to heavy rain accompanied with ghastly winds, which is act of God.
The learned counsel for the respondents/plaintiffs contends that the defendant, being a Public Carrier, is not entitled to contend that he was
carrying the goods at owner''s risk and the contention is against the provisions of the Carriers Act and he relies on the decision of this Court in
Thiruppathi Venkatachalapathy Lorry Service and Another Vs. The New India Assurance Company Limited and Others, . A Division Bench of
this Court has held as follows:
24 The next contention raised on behalf of the appellants is that in Ex.A-1 lorry receipt, there is a clause that the goods were transported at
owner''s risk"" and that since the second plaintiff agreed to transport the goods through the first defendant''s lorry at owner''s risk, he is not entitled
to claim any damages. Under the law of public carriers, the public carrier is not entitled to say that he is carrying the goods at the owner''s risk. It is
very specifically staled that the goods transported through public carrier is only at the risk of the lorry owner and not at the risk of the owner of the
goods. No signature of the second plaintiff was obtained in Ex.A-1 receipt to prove that he agreed to transport the goods at the owner''s risk.
D.W.1 the first defendant''s agent has stated that everything was negotiated through the Managing Director of the second plaintiff''s company. So,
there is no record produced that the second plaintiff, agreed to transport the goods at owner''s risk. So, the entry in Ex.A-1 receipt that the goods
were transported at owner''s risk is against the provisions of the Public Carriers Act, and it will not bind the plaintiffs.
The defendant, as a Public Carrier, is not entitled to contend that it transported goods at the owner''s risk and the contention is devoid of merits.
Yet another contention raised by the defendant is that it did not Know about the survey conducted by M/s.Ghosh and Ghosh and the Survey
Report, with the lack of particulars, is not binding on it. This contention cannot be accepted for the reason that the defendant had issued Ex.A-4,
Certificate of Damage, in which it had certified that the part of the consignment, at the time of delivery, was partly water damaged and 3 bags were
short delivered and on the basis of the Survey conducted by the surveyor M/s.Ghosh and Ghosh, Calcutta, the assessed damage was 60% of the
original invoice value. The defendant had not only admitted the deficiency in the goods at the time of the delivery, but also accepted the Survey
Report of M/s.Ghosh and Ghosh regarding the damage and issued the Damage Certificate. The stand taken by the defendant that it had issued the
certificate without prejudice is of no value. Based on Ex.A-4 Certificate only, the insurer viz., the second plaintiff had settled the claim of the first
plaintiff.
The learned counsel for the respondents/ plaintiffs relied on a recent ruling of the Apex Court in Patel Roadways Limited v. Birla Yamaha
Limited, , for the proposition that the liability of a Common Carrier under the Carriers Act is that of an insurer. The Apex Court has held as
follows:
From the conspectus of views taken in the decisions of different High Court noted above it is clear that the liability of a common carrier under
the Carriers Act is that of an insurer. This position is made further clear by the provision in Section 9, in which it is specifically laid down that in a
case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even
assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the
said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the
parties. These principles have held the field over a considerable length of time and have been crystallized into accepted position of law. No good
reason has been brought to our notice to persuade us to make a departure from the accepted position. Therefore, we reiterate the position of law
noticed above.
The Supreme Court, in the above decision, has reiterated the position of law with regard to liability of Common Carrier. Hence, it is clear that
the liability of the defendant, as a Common Carrier, under the Carriers Act is that of an insurer with regard to the goods of the first plaintiff
entrusted to it and the defendant is liable for the loss and damage caused to the goods of the first plaintiff. As rightly held by the trial Court, the
defendant is liable for the suit claim.
In the result, the appeal fails and it is dismissed with costs. Connected C.M.P''s. also dismissed.