AI Structured Summary
Not yet generated for this judgment
Judgment
I. David Christian, J.—Appeal against the judgment and decree made in A.S. No. 414 of 1986, on the file of IX Addl. Judge. City Civil
Court, Madras dated 21.7.1987 confirming the judgment and decree and granted in favour of the plaintiff in O.S. No. 5380 of 1980, on the file of
II Assistant Judge, City Civil Court, Madras dated 2.2.1985. The twice defeated first defendant M/s. Deepak Transport Agency is the appellant in
this Second Appeal.
Plaintiff M/s. Transformers & Switch Gears Limited, Madras filed the suit against the defendants M/s. Deepak Transport Agency and 2 others
alleging that on 26.3.1977 at Madras, the first plaintiff entrusted with the defendant, who is a common carrier, a consignment of two 100 K.V.A.
Transformers to be transported to Gwalior, that the consignment was intended to be delivered to the Assistant Controller of Stores, Madhya
Pradesh State Electricity Board, Gwalior, that the consignment was transported by the first defendant in a lorry bearing Registration No. AAT
2313, that the said lorry met with an accident on 30.3.1977 near Khandwa in Maharashtra State, as a result of which damages have been caused
to the consignment and that this was confirmed and acknowledged by the first defendant to the first plaintiff by his letters dated 12.4.1977 and
15.4.1977, that the first defendant had the damaged consignment surveyed by competent independent surveyors and the consignment was again
sent back to Madras for rectification and repairs, that the value of the damage caused was surveyed and valued at Rs. 19,011/- with incidental
charges including the cost of transportation, insurance etc., that the first plaintiff preferred a claim to the first defendant claiming the damages under
The Carriers Act, but the first defendant has not paid the amount and raised frivolous pleas, that the damage caused to the consignment was due to
gross negligence on the part of the first defendant and or its representative or agent that therefore the first defendant is liable to compensate the first
plaintiff for the said loss, that the second plaintiff has insured the consignment against loss or damage under Policy No. 104/83/1/01041/77 and has
paid the first plaintiff 75% of the damage i.e., Rs. 14,060/-, that the second plaintiff had got himself subrogated to the reliefs to which the first
plaintiff is entitled and therefore, the first defendant is liable to pay the first plaintiff a sum of Rs. 19,011/- being the amount of damage assessed
which includes the transport of the goods been to Madras for repairs and insurance and other expenses and thus a sum of Rs. 19,011/- is due from
the first defendant to the plaintiffs which the first defendant has failed and neglected to pay inspite of demands, that the plaintiffs is therefore
constrained to file the suit praying for a decree for Rs. 19,011/- with interest at 12% per annum from the date of the plaint till date of decree and
thereafter at 6% per annum and also the costs.
The first defendant filed a written statement contesting the claim of the plaintiffs by contending as follows:-
The suit claim is speculative, vague and without necessary particulars and is lacking in merits. The suit as framed is not maintainable. This defendant
denies the plaintiffs right to sue and this Court has no jurisdiction to try the suit. The first plaintiff booked with this defendant at Madras one
consignment consisting of electric transformers for carriage and delivered from Madras to Gwalior under Lorry Receipt No.013379 dated
26.3.1979 and the consignment was loaded in the lorry bearing Registration No. AAT 2313. Said lorry belongs to Manghisingh, who was
operating the same through Delhi-Hyderabad. The first plaintiff is the consignor and the Assistant Controller of Stores, Madhya Pradesh Electricity
Board, Gwalior is the consignee and the suit consignment was transported from Madras on 26.3.1977 and delivered to the consignee on
21.4.1977. The vehicle AAT 2313 which was carrying the consignment met with an accident near Burhanpur on 31.3.1979 as a result of which
the suit consignment was damaged. The details of damages have been furnished to the first plaintiff by this defendant by a letter dated 15.4.1977.
In that letter, this defendant has asked for instructions from the first plaintiff as to whether the first plaintiff wanted the consignment to proceed to its
destination or to be brought back to Madras for making effective repairs. But the first plaintiff did not send any reply to the first defendant''s letter
dated 15.4.1977. This defendant again wrote a letter to the first plaintiff on 23.4.1977 along with which he has enclosed photographs of the lorry
AAT 2313 which was involved in the accident to enable the first plaintiff to get his claim from the second plaintiff. The suit consignment was
transported from Madras to Gwalior under owner''s risk and it is clearly mentioned in the terms and conditions of the Contract of Carriage that the
court at Hyderabad only will have jurisdiction in respect of all claims and matters arising under the consignment entrusted to this defendant. As per
the invoice which accompanied the lorry receipt, the ownership, right, title and interest in the property has already passed on to the Assistant
Controller of Store, Madhya Pradesh Electricity Board. Gwalior u/s 23(2) and Section 39 of the sale of Goods Act. The Lorry Receipt or the
Goods Consignment Note issued by this defendant is not a document of title to the goods within the meaning of Section 2(4) of the Sales of Goods
Act as decided in AIR 1968 Mys 133. The risk and responsibility of the goods can be passed on to the Chief Accounts Officer, Madhya Pradesh
Electricity Board. Japalpur as per the first plaintiffs invoice No.326 dated 26.3.1977. Therefore, the present suit filed by the plaintiffs is not
maintainable. It is only the owner of the goods who has right to file the suit against the first defendant. The first plaintiff has no longer any right in the
damaged property and therefore the suit filed by the plaintiffs against the first defendant is not maintainable and the seller cannot maintain the suit
against this defendant. The suit is also barred by limitation in as much as the first plaintiff did not file his claim within six months from the date of
booking of the goods. The consignment was booked on 26.3.1977 and the last date to prefer the claim with the first defendant was 26.9.1977.
The first plaintiffs filed the claim only by his letter dated 23.11.1978, after a lapse of 20 months. Since the notice required u/s 10 of the Carriers
Act was not given within the period of six months, there is no proper notice to the first defendant from the first plaintiff and on this ground also the
suit claim is liable to be negatived. This defendant is not liable to pay loss or damages to the plaintiff as they are not the owner of the lorry involved
in the accident and one Manghisingh is the owner and he must be impleaded as a party for which an application has also been filed. The first
defendant has acted only as a Booking Agent for forwarding or distributing the goods carried by the public common carrier. As a transport
contractor and bailee, the defendant is not liable for any loss, or destruction or damage to the goods since they have taken as much care in
transporting the goods as an ordinary prudent person would under similar circumstances Under the terms and conditions of the contract of carriage
stipulated in the lorry receipt, the consignment was carried at owner''s risk and therefore this defendant is not liable for any loss or damages. Even
though survey report was given on 25.6.1977, it does not mention any estimate of the repairs required to set right the damages caused. The first
plaintiff by the letter dated 23.11.1978 for the first time sent the claim invoice for a sum of Rs. 19,011/- and by this time the claim has become time
barred u/s 10 of the Carriers Act. The claim was not accompanied by subrogation letter in favour of the Insurance company. The first plaintiff has
not submitted with this defendant the receipt for the payment made by the Insurance company to the first plaintiff. The damages caused are nominal
and minor and the first plaintiff should not have proceeded to repair the damages without prior approval of this defendant. There was no negligence
or misconduct on the part of this defendant. The plaintiffs have not explained as to how the claim is made for Rs. 19,011/- when the second
plaintiff is said to have paid only Rs. 14,050/-. The first plaintiff has no right to file the suit against this defendant since he has already sold and
delivered the goods to the purchasers. The claim is also barred by limitation since the claim has not been preferred with this defendant within the
period of six months.
On the application made by the first defendant, Manghisingh and his driver were impleaded as defendants 2 & 3 and the second defendant filed
a written statement stating that he is the owner of the lorry AAT 2313, that the driver was not authorised to take goods for delivery or transport
from Madras, that this defendant did not accept the consignment either from the first defendant or from the first plaintiff and that therefore he is not
liable to pay any compensation. That the first plaintiff has no right to prefer the claim that no claim was made to this defendant and that the suit is
therefore, liable to be dismissed.
The third defendant filed a written statement stating that he is not concerned with transportation of goods of the lorry which carried it and that
therefore, no claim can be maintained against him.
On the above pleadings, the trial Court framed issues as to whether the plaintiffs can file and maintain the suit, whether the suit is barred by
limitation. Whether the first plaintiff is entitled to the damages claimed, whether the accident was due to the negligence of the defendants or their
servants, whether the first plaintiff has got right to maintain the suit against the defendants and whether the court has no jurisdiction to try the suit.
On behalf of the plaintiffs, two witnesses were examined as P.Ws.1 & 2 and they have filed Exs.A-1 to A-23 documents. On behalf of the
defendants, D.W.1 was examined and Exs.B-1 to B-14 documents have been filed.
On consideration of the evidence, oral and documentary, the trial Court gave findings to the effect that the claim has been preferred within the
period of limitation, that the plaintiffs can maintain the suit since there was contract of carriage between the first plaintiff and the first defendant and
therefore, the first defendant is liable to pay damages, that the second plaintiff has got a subrogation agreement in his favour since he has paid the
insured amount to the first plaintiff, that the plaintiffs will be only entitled to a sum of Rs. 14,060/- as damages and that the court has got jurisdiction
to try the suit. In view of these findings, the suit was decreed in favour of the plaintiffs directing the first defendant to pay a sum of Rs. 14,060/-
with 6% interest from the date of the plaint till realisation and also the proportionate costs. The claim against the defendants 2 & 3 was dismissed.
Aggrieved at the said findings and the decree granted in favour of the plaintiff, the first defendant preferred Appeal in A.S. No. 414 of 1986 and
the learned IX Additional Judge, City Civil Court, Madras by the impugned judgment dismissed the appeal confirming the judgment and decree of
the trial Court. Aggrieved at the said findings and the decree granted by the first appellate court, the first defendant has come with this Second
Appeal.
At the time of admission of the appeal, the following substantial questions of law were formulation as arising for consideration:-
(1) In as much as the plaintiff has not incurred any loss by way of demand by the purchaser for any alleged damage to the goods or by any other
way, can he make the suit claim against the defendant?
(2) Is the suit maintainable in the absence of a statutory notice required u/s 10 of the Carriers Act?
The questions that have to be decided in this Second Appeal are as to whether the plaintiffs can maintain the suit, whether the defendants are
liable to make good the loss caused due to the damages in the accident, while the goods are being carried from Madras to Gwalior. Another
question which survives for consideration, is whether there has been proper notice under S.10 of the Carriers Act.
It cannot be now disputed and it is also not disputed that two transformers were entrusted with the first defendant, a public carrier, for being
transported from Madras to Gwalior and the consignee was Madhya Pradesh Electricity Board, Gwalior. While the vehicle belonging to the first
defendant was proceeding in Maharashtra, it met with an accident as a result of which damages were caused to the two transformers, being
transported. The survey has been arranged at the instance of the first defendant himself and the Surveyor was only able to point out the damages
caused to the transformer and he was not able to fix the actual value, because there was nobody to evaluate the damages on the cost of repairs
that would require to set right the damages, caused.
It is now mainly contended that the plaintiffs are not the owner of the goods and therefore cannot maintain the suit for damages, as against the
carriers viz. the first defendant, an attempt has also been made on behalf of the plaintiffs to contend that suit was not based on Carriers Act and the
suit is filed on the strength of the original contract, as per which the first plaintiff entrusted the goods to the first defendant to be carried to its
destination. But a reading of the plaint would definitely disclose that the suit was filed only against the carrier and the claim is also only under the
Carriers Act. Therefore, we have to find out whether the first plaintiff not being the owner of the goods, can still claim damages caused during the
course of the goods, being carried by the carrier.
S.8 of the Carriers Act reads as follows:
Notwithstanding anything herein before contained, every common carrier shall be liable to the owner for toss of or damage to any property
delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or
servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of Section 3
apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the
negligence of the carrier or any of his agents or servants.
The Carriers Act, while restricting the powers of a common carrier of exempting himself from his common law liability, by Section 8 creates a
liability and gives the benefit of that liability to the owner. It is only the owner that is entitled to the benefit of that section. So far as the present case
is concerned, it is established that the consignment was, no doubt, entrusted for carriage with the first defendant by the first plaintiff himself. But the
consignee of the goods was the Chief Store Keeper, Madhya Pradesh Electricity Board, Gwalior, P.W.1 also admitted that the goods were
ordered by the Madhya Pradesh Electricity Board and the goods were consigned, accompanied by an Invoice, drawn in favour of Madhya
Pradesh Electricity Board. The title in respect of the three transformers has been conveyed by the first plaintiff to the Madhya Pradesh Electricity
Board and it was in pursuance of order of supply, made by the Board. Ex.A2 is the invoice, which would also show that so far as the transformers
are concerned, they have been already sold to the Board and the taxes also have been paid and the sale has become complete. The first plaintiff
has not specifically pleaded that an order was placed by the Electricity Board to the plaintiff on condition that the goods will be accepted after safe
delivery to them.
It is also not the definite case of the plaintiff, as spoken to by P.W.1 that sale has not been completed till delivery is effected to the Board.
There is neither specific plea that ownership of the goods has not passed to the Board and the oral evidence and documents also would establish
that the goods have been already sold to the Madhya Pradesh Electricity Board and the latter is the owner of the goods. I have already stated that
suit itself is filed against the first defendant in his capacity as public carriers and the claim is made only by virtue of the provisions of the Carriers
Act. So the defendant has rightly objected to the claim of the plaintiff stating that once the goods have been entrusted to them for carriage to the
consignee, the latter is the proper person to maintain a suit for damages, caused during transit, since the latter is only the owner of the goods and
not the plaintiff. This has been subject matter of number of decisions and the learned counsel appearing for the appellant has drawn my attention to
those rulings of our High Court and also the Hon''ble Supreme Court of India.
In D.P. Narasa Reddy Vs. Ellisetti China Venkata Subbayya and Another, it has been held that the Carriers Act, while restricting the powers
of a common carrier of exempting himself from his common law liability, by S.8 creates a liability and gives the benefit of that liability to the owner.
It is only the owner of the goods, therefore, who is entitled to the benefit of S.8. An agent of the owner, to whom goods are entrusted for carriage,
who entrusts them to a common carrier to carry, cannot maintain a suit for recovering damages for loss of such goods against the common carrier
employed by him.
That was a case where the plaintiff is the owner of a motor lorry and first defendant also is the owner of the lorry and the second defendant
was an employee of the first defendant. One M/s. Syed Trading Company, manufacture of a brand of beedies, known as ''Copuram Beedies''
entrusted a consignment of beedies to the plaintiff to be carried from Madras to Proddatur. The plaintiff entrusted the goods to be carried by the
second defendant in the lorry belonging to the first defendant and the goods were not delivered to the consignee. The plaintiff who has entrusted
the goods filed the suit for damages for loss of the goods in transit as against the carrier viz. Dl and his employee D2. The same objection was
raised that the goods have been sold to the consignee by the company, manufacturing the beedies and neither the company nor the manufacture of
beedies have filed the suit and the person, who was entrusted with the goods and who actually delivered them to the carrier was the plaintiff and
the Carrier took the defence that he is not answerable to the claims, since the goods belonged to the consignee and the plaintiff is not the owner of
the goods. The contention was upheld and it was held that the plaintiff not being the owner of the goods, is not entitled to maintain the suit under
S.8 of the Carriers Act, against the second defendant carrier. Whether the plaintiff has employed the first defendant as carrier on his own account
was considered as a question of fact to be decided and on evidence available, it was found that the plaintiff has not specifically pleaded and the suit
was also not filed on the basis of entrustment or on the basis of a contract. It has been specifically stated that a person other than the owner, may
employ a common carrier on his own account and then sue him for loss on his account on contract either inferred on implied and whether such a
person has employed the common carrier on his own account or not is a question of fact, depending upon the circumstances of each case. So if the
plaintiff in the present case wants to succeed on the basis of such special contract, he must have plead and proved the same. But the pleading and
the evidence available do not warrant a conclusion that it was a special contract between the plaintiffs and the defendants with regard to the
carriage of goods to the owner viz. Madhya Pradesh Electricity Board.
The Hon''ble Supreme Court of India in Union of India v. West Punjab Factories Ltd and another (1958 A.C.J. 602) has dealt with these
points. That was also a case, where two suits were filed against the Union of India, claiming damages for loss of goods, which were destroyed by
fire on the railway platform at Morar Road Railway Station. One of the suit was filed by Birla Cotton Factory Limited, represented by West
Punjab Factories Limited which related to six consignments of cotton bales booked from six stations on various dates in February and March
1943 by the factory to Morar Road Railway Station. In five of the cases, the consignment was consigned to J.C. Mills while in one it was
consigned to self. The consignments arrived at Morar Road Railway Station on various dates in March. Delivery was given of a part of one
consignment while the remaining goods were still in the custody and possession of the Railways. A fire broke out at Morar Road Railway Station
and these goods were damaged in the fire. The Factory, the consignee filed the suits claiming damages for the loss caused. In one case, the railway
receipt was endorsed in favour of one Ishwara Nand Sarswat and he has also filed one suit. One of the contentions raised by the Railways is that
the plaintiff being not the owner of the goods and since the railway receipt would show the consignee as J.C. Mills, the suit filed by the Factory
consignor is maintainable. The trial Court found that the Factory cannot maintain the in suit and decided accordingly. The trial Court granted a
smaller amount than what was prayed for in the suit filed by the consignee the matter was taken up in appeals to the High Court. The Railway also
filed appeals. The High Court affirmed the finding of the trial Court that there had been negligence on the part of the railways which resulted in
damage to the goods. On the question whether suit could be maintained by the plaintiff, the High Court affirmed the finding of the trial Court that
both the suits were maintainable and on special leave granted, the matters were taken to the Supreme Court and one of the four points raised
before the Supreme Court was as to whether the suit as filed were not maintainable.
In that case, regarding the first point, the contention of the appellant viz. railways Union of India was that the Factory being the consignor could
not bring the suit atleast in respect of five of the consignments, in which the consignee was J.C. Mills and therefore only J.C. Mills could maintain
the suit. The Supreme Court has held that a railway receipt is a document of title to the goods covered by it, but from that alone it does not follow,
there the consignor and consignee are different, that the consignee is necessarily the owner of goods and the consignor in such circumstances can
never be the owner of the goods. The mere fact that the consignee is different from consignor does not necessarily pass title to the goods from the
consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is
quite possible for the consignor to retain title in the goods himself, while the consignment is booked in the name of another person. Ordinarily, the
consignor is the person who has contracted with the railway for the carriage of goods and he can sue and it is only where title to the goods has
passed that the consignee may be able to sue. Whether title to goods has passed from the consignor to the consignee will depend upon the fats of
each case and one has to look at the evidence produced to decide the question.
In Marwar Tent Factory Vs. Union of India (UOI) and Others, the Supreme Court held that property in goods together with the risk passed
from the seller to the buyer i.e. by the consignor to the consignee as soon as the goods were loaded in the railway wagons at place of dispatch as
per the terms of delivery. Therefore, it could not be said that the risk throughout remained with the firm until the goods were actually delivered to
the consignee. It could not also be said that the property in tents did not pass until the same has actually delivered to the consignee and the
consignee was not liable for loss of tents during the period of transit by the railways.
In AIR 1991 Kar 385 (M/s. Oriental Fire & General Insurance Co. Ltd. v. Union of India and others), the Division Bench of the Karnataka
High Court held that ""as the booking was on P.O.R. basis and the transformer was in a deliverable state, the property in the transformer passed on
to the consignee. The consignor or the insurance company as his assignee could not file suit for damages. In the absence of any particular showing
how, why and who exactly took out the insurance, the mere taking of insurance by the consignor would not in any way militate against the normal
position that the property in goods passes to the buyer the moment the contract is completed as provided u/s 20 of the Sale of Goods Act.
Similarly from the fact that the consignor had revoked the consignment for the purpose of getting the transformer repaired, it could only be said that
rebooking was done by the consignor only as the agent of the consignee and nothing more can be inferred from this circumstance alone.
As against these rulings, the learned counsel for the respondents would rely upon a ruling reported in St. Joseph Union Tile Works Vs. Rappai
wherein a single Judge of the Kerala High Court has held that a consignor of the goods can recover the value of the goods from the carrier, who
failed to deliver the goods to the consignee, because the consignor is entitled to sue the carrier either on the basis of title, if the property in the
goods has not passed from him, or on the basis of privity of contract between himself and the carrier for the carriage of goods. The single Judge
has chosen to differ from the decision of the Division Bench of this Court made in J.K.M. Yacob Rowther Sons, Mettypalayam Vs. Union of
India, .
The Division Bench of this Court held in the said case that the consignee alone was entitled to sue and the consignor had no locus standi. I am
bound by the decision of the Division Bench of this Court and therefore, the respondents cannot press into service the abovesaid authority to
succeed in the appeal.
On going through the pleadings and evidence, it is clear that title of the goods has passed on to the Electricity Board and it is not the case of the
plaintiff that there was a special contract between himself and the carrier viz. the first defendant and the suit also in only filed on the basis of the
Carriers Act. Therefore in view of these authorities, it is clearly established that the consignee alone can maintain a suit for damages against the
public carrier in cases where title in respect of goods has passed on to him. The present suit filed by consignor is not maintainable and on this point,
the appeal has to be allowed. In the result, this Second Appeal is allowed and the decree granted by the lower Court is set aside. However, there
shall be no order as to costs.