JUDGMENT
R.C. Lahoti, J.
1. The defendant, a common carrier, has come up in appeal, aggrieved by a decree awarding damages against it for the loss caused to the goods in its custody for the purpose of transportation.
2. It is not disputed that the respondent No. 2 booked 60 bales of viscose staple fibre with the appellant for the purpose of transportation from Birlanagar, Nagda to Gwalior. At the destination, 11 bales were found wet. The respondent No. 2 insisted upon open delivery. The survey of water soaked bales was conducted by C.P. Sarwahi, PW 2, a licensed surveyor. The bales were insured with the respondent No. 1, an insurance company. The respondent No. 2, M/s. Jiyajee Rao Cotton Mills, Birlanagar, Gwalior, lodged a claim with the insurance company. The cost price of contents of 11 bales was Rs. 12,688.50. The salvage was valued at Rs. 3,172/-. An amount of Rs. 9,516.50 was paid by the respondent No. 1 to respondent No. 2 by way of damages for the loss caused to the staple fibre. The claim of the respondent No. 2 having been satisfied, by a deed of subrogation, right to recover damages came to be assigned to the plaintiff respondent No. 1. The respondent No. 1 served a notice on the common carrier, the appellant and then filed a suit for recovery of Rs. 9,516.50 and interest calculated at the rate of 12 per cent per annum, making a sum total of Rs. 10,953/- on the date of the suit.
3. The respondent No. 2 admitted the claim of the respondent No. 1. The appellant denied the claim and contested the same on very many grounds. The quantum of damages was disputed by submitting that the survey was conducted by the surveyor in the absence of the appellant and therefore was not binding on it. The maintainability of the suit was also objected to on the ground that the plaint was not properly signed and verified. The trial court found the plaintiff to be entitled to a decree and granted the same.
4. The learned counsel for the appellant attacked the decree on two counts which shall be presently noticed. Firstly, it is submitted that the plaint was signed and verified by one Sant Prakash Gupta in the capacity of Administrative Officer of the company, but it was not proved that he had authority to do so. This submission has to be rejected because power of attorney, Exh. P-2, has been exhibited to show that Sant Prakash Gupta was appointed an attorney of the company and he was competent to sign and verify the plaint and also to appoint an advocate on behalf of the company. This fact deposed to by him in his examination-in-chief as witness No. 3 for the plaintiff, has not been challenged in cross-examination and hence no fault can be found with the signing, verification and presentation of the plaint.
5. The next submission is that C.P. Sarwahi, PW 2, made an assessment in the absence of the appellant and without noticing it and hence the appellant was not bound by the assessment. This contention too has to be rejected. C.P. Sarwahi is an independent surveyor, licensed by the Government and was engaged by the insurance company for assessment of the damages. Merely because he had been a surveyor in several claims of the respondent No. 2 would not mean that he was interested in that respondent and would go to the extent of making a false survey or giving a false report. The surveyor is an expert in the field of survey and unless there be something positive to discredit him, his assessment has to be accepted. It would have been better if he had assessed the quantum of damages in the presence of the appellant or would have at least noticed the appellant. However, the plaintiff would not be nonsuited and the survey conducted by C.P. Sarwahi would not be discarded solely for this reason. A civil case has to be decided on preponderance of probabilities. The goods were delivered from the custody of the carrier to the consignor who was also the consignee and there was nothing which prevented the carrier from employing a surveyor for assessment of damages specially when an open delivery was being insisted upon. The carrier could also have insisted on a survey being conducted in his presence which was not done. In the matter of assessment of partial loss to the goods, some guesswork has to be allowed. The price of the contents of bales is based on the invoices. Discount has been given for the value of the salvage. Primarily, the payment was to be made by the insurance company because the consignor was claiming from it. There is no reason to assume that any extra or unreasonable assessment would have been acceptable to the insurance company. For all these reasons there appears to be no difficulty in accepting the assessment made by the surveyor specially when the trial court has also chosen to accept it. The finding of the trial court that the respondent No. 2 had suffered a loss of Rs. 9,516.50 has to be confirmed and is confirmed.
6. Lastly, it was submitted by the learned counsel for the appellant that the trial court was not justified in awarding interest. There is substance in this submission. In the plaint no foundation is laid for claiming interest. The plaintiffs have not at all proved as to how and in what manner they were entitled to the award of interest from the appellant, as such the decree for interest till the date of the suit shall have to be set aside.
7. The appeal is partly allowed. In supersession of the decree passed by the trial court, it is directed that the plaintiff/respondent No. 1 shall be entitled to a decree for Rs. 9,516.50 and costs of the trial court with interest at the rate of 6 per cent per annum from the date of the suit (i.e. 23.7.1975) till realisation from the defendant No. 1/appellant. Costs of this appeal shall be borne by the parties as incurred. Counsel’s fee as per schedule.