ORDER
1. The judgment-debtor/defendant and the decree holders/plaintiffs in O.S.No.131 of 1982 on the file of the sub- Court, Srivilliputhur are the appellant and the respondents respectively in this appeal. In this judgment the parties to the appeal would hereinafter be referred to as the ‘plaintiffs’ and the ‘defendant’. The plaintiffs filed the suit for the recovery of a sum of Rs 63,500 with interest representing the loss of goods entrusted to the defendant for carriage. On merits the suit was decreed. Hence the present appeal. Heard Mr.S.Sethuraman, learned counsel appearing for the defendant and Mr. Rosi Naidu learned counsel appearing for the plaintiffs.
2. The allegation in the plaint are as hereunder:
On 27.8.1979 the second plaintiff booked 100 bundles of match boxes with the defendant to be delivered to their consignee at Vijayavada in Andhra Pradesh.
The second plaintiff had paid Rs 150 as freight charges and the defendant also issued lorry receipt No.4837, dated 27.8.1979 evidencing the said payment. Again on the same day the second plaintiff booked 500 bundles of match boxes with the defendant to be delivered to their named consignee at Guntur in Andhra Pradesh. A sum of Rs 750 was paid towards freight charges and the defendant also issued lorry receipt No.4836 dated 27.8.1979 evidencing the same. Another 400 bundles of match boxes were again booked on the same day with the defendant for onward carriage to be delivered at Vijayawada. For this also freight charges of Rs 640 was paid and the defendant issued lorry receipt No.4835 dated 27.8.1979. The three consignments were loaded in the defendants lorry bearing registration No.TNR 4524 and the lorry was in the custody of the driver of the defendant. It appears that on 31.8.1979 when the lorry was nearing Vadlapedeu in Andhra Pradesh, it was driven rashly and negligently and consequently the lorry capsized and fell down on the left side of the road. The lorry caught fire. Since the goods were match boxes all the match bundles caught fire. The entire goods including the lorry were burnt down to ashes. The accident was solely due to negligence on the part of the driver of the defendant. Had the driver of the defendant been little more careful and slow in driving the vehicle the accident would have been avoided. The defendant informed the accident to the second plaintiff. Since the goods were insured with the first plaintiff under a valid policy the second plaintiff reported the matter to the first plaintiff. Therefore the first plaintiff arranged for a spot survey and on the completion of the inspection the surveyor estimated the loss at Rs 66,363.80. The second plaintiff by his three letters each dated 17.9.1979 claimed a sum of Rs 7,338.80, Rs 30,375 and Rs. 28,600 from the defendant. But the defendant by his reply dated 28.9.1979 reputed his liability. So, the second plaintiff made a claim for that sum on the first plaintiff. The first plaintiff therefore settled the claim of the second plaintiff and got a letter of subrogation. Now, the first plaintiff is subrogated to the right of the second plaintiff and the defendant under law is liable to pay the amount to the first plaintiff. The first defendant’s liability as public carrier is absolute and total. The defendant is vicarioulsy liable for the conduct of the driver for rashly and negligently driving the vehicle. The plaintiff issued a notice on 30.4.1982 to the defendant calling upon him to settle the claim. The defendant sent a reply dated 18.5.1982 by a registered letter stating the claims as intenable. Hence the suit.
3. The defendant filed a written statement contending inter alia as follows:
It is true that the second plaintiff entrusted 1000 bundles of safety matches to be transported and delivered to the consignee at Vijayavada and Guntur under the lorry receipts mentioned in paragraph 6 of the plaint. However the plaintiffs have suppressed the existence of a special contract between the second plaintiff and the defendant. Under the contract the goods were carried at owner’s risk. At the time of booking the second plaintiff had known all the terms and conditions and in token of having accepted the terms has signed in the forward note that the goods were booked subject to all the terms and conditions printed at the back of the way bill. The second plaintiff appears to have insured the goods to safeguard their own interest. It is denied that the
lorry was driven rashly and negligently and consequently capsized, fell down and caught fire. The truth is that the accident to the vehicle is not due to rash and negligent driving of the vehicle, when the lorry was proceeding near Yadlapedu in a normal speed of 35 K.M. per hour another lorry was coming in the opposite direction in the middle of the road and without dimming the head light. The driver of the defendant’s lorry to avoid collision turned the vehicle to the extreme left side of the road. Due to the very bad condition of the road the lorry TNR 4524 capsized and as a result of which the vehicle as well as the goods caught fire and they were totally damaged. The accident was not due to any fault on the part of the defendant or his employee and the accident was due to unavoidable and unforeseen circumstances as stated above. As the contract of carriage is by a special contract and the damage to the goods was not due to any negligence or rashness or any other fault of the driver of the vehicle the defendant is not liable or answerable to the plaintiff’s claim. The defendant is not aware of the survey stated to have been arranged and the report of the surveyor on the completion of the survey. The defendant does not admit the value of the goods alleged to have been damaged. Though the liability of the defendant as a owner of the public carrier is absolute and total, the defendant cannot be termed as a public carrier burdened with the responsibility stated in the plaint a in this case the goods were carried by the defendant only under a special contract. Hence the suit may be dismissed.
4. On the side of the plaintiffs one witness was examined as P.W.1. 29 exhibits were marked as Ex.A.1 to A.29. On the side of the defendant, the defendant was examined as D.W.1 and three exhibits were marked as Ex.B.1 to B.3. On the pleadings and on the materials available, the learned trial judge framed the following issues:
(1) Is not the description of the defendant in the short cause title and in the long cause title erroneous?
(2) Whether the person who had verified had authority and necessary author-isation to verify the plaint?
(3) Whether the first plaintiff would be a legally constituted agent of the second plaintiff?
(4) Is not the plaint liable to be rejected in the absence of the prior permission from the court enabling the first plaintiff to sue as the agent of the second plaintiff.
(5) Whether the second plaintiff had issurable interest on the date of taking insurance in the goods?
(6) Is there not a special contract between the second plaintiff and the defendant?
(7) Is there not rashness and negligence on the part of the driver of the lorry belonging to the defendant?
(8) Whether the letter of subrogation given by the second plaintiff in favour of the first plaintiff are in accordance with law?
(9) Whether the amount claimed in the plaint is correct?
(10) Whether the goods were carried by the defendant in his capacity as a common carrier?
(11) Whether the first plaintiff is entitled to the amount claimed in the plaint?
(12) Whether the alleged consignees are necessary parties to the suit?
(13) To what are the reliefs the plaintiff are entitled to?
It appears from the judgment under challenge that issues 1, 5 and 12 were not pressed by the defendants and therefore they were taken out of consideration. On issues 2,3 ,4 and 8 the answer went in favour of the plaintiffs. On issue 6 the learned trial Judge found that there was a special contract between the second plaintiff and the defendant. On issues 7 and 10 the answers went against the defendant. On issues 9 and 11 the answer went in favour of the plaintiffs. Accordingly the suit came to be decreed.
5. Mr. Sethuraman, learned counsel mainly argued two points and they are as follows:
Exs.B1 to 3 are the documents evidencing the entrustment of the goods by the second plaintiff to the defendant for onward transfer to a destination in the state of Andhra Pradesh. The terms and conditions printed at the reverse of the documents contain the clause that the goods are carried at ‘owner’s risk’ and therefore for loss are damage to the goods the defendant cannot be held liable, as the said contract has the overriding effect on the statutory duties of the common carrier as contemplated under the Carrier’s Act. The second point argued by the learned counsel for the appellant is that there is absolutely no evidence to support the findings of the learned trail Judge that the vehicle was driven in a rash and negligent manner. The doctrine of Resipsa Loquiter would not apply to the case on hand and the burden is on the plaintiffs to establish rashness and the negligence on the part of the driver of the lorry of the defendant. Lastly, the learned counsel would also contend that the plaintiff have not proved the actual damage sustained by them, in that the value of the goods damaged as to been established. Contending contra the learned counsel for the respondents would state that even though Exs.B1 to B3 may amount to special contract between the parties, yet the incorporation of the condition that the goods were carried at the owner’s risk will not absolve the carrier’s liability. As far as the proof of negligence is concerned, the learned counsel would contend that it is for the defendant to establish that there was no negligence and the plaintiff is to expected to prove the same. Inasmuch as the driver of the defendant lorry had not been examined the evidence of D.W.1 is not worth the paper on which it is written. As far as the value of the goods is concerned, the learned counsel would contend that the invoiced of the goods in question Ex.A.26 to Ex.A.28 establish the value of the goods lost in the accident. He would also state that the insurance policies, namely Exs.A1 to A3 the estimated value of the goods is mentioned. Even in Ex.A.21 the subrogation letter the value of the goods is mentioned.
7. In the background of the arguments advanced by the learned counsel on either side on the pleading and on the evidence available on record. I am of the opinion that the following issues alone arise for consideration in this appeal:
(a) Whether the defendant as a common carrier can avoid his liability to the plaintiffs based on the special contract Exs.B.1 to B.3 containing a clause that the goods are carries at owner’s risk?
(b) Whether there, is any evidence to substantiate the finding of the learned trial Judge that there was negligence and rashness on the part of the driver of the lorry belonging to the defendant?
(c) Whether the plaintiffs had established the actual damages suffered by them?
As far as issue (a) is concerned it should not detain this court even for a minute more than it is required. This issue is covered by two judgments of this court in Thiruppathi Venkatachalapathy Lorry Service v. New India Assurance Company Ltd., 1988 (I) MLJ 64 and The Divisional Manager, The New India Assurance Company Ltd v Murugan, 1996 TLNJ 127. In these cases a similar argument has been raised and this court had repelled the argument of the common carrier and held that the liability of the common carrier is absolute. Therefore this issue goes against the defendant. As far a the issue (b) is concerned under section 9 of the Carriers Goods Act, any suit brought against the common carrier for loss, damage, etc. etc. entrusted to the carrier for carriage, it shall nor be necessary for the plaintiff to prove that such a loss or damage etc. was due to negligence or criminal act of the carrier his servant or agent. Therefore it is clear that the burden is on the carrier to prove that there was no negligence or nay criminal act. Under section 8 of the Carriers Act the common carrier is made liable to the owner for loss or for damage to any property delivered to such a carrier to be carried when such loss or damage shall have arisen from the criminal act or negligence of the carrier or of his agent or servants. Reading sections 8 and 9 of the Carriers Act together it is clear that the burden is on the carrier to prove that there was neither a criminal act nor any negligence committed by either the carrier or by his agent or his servant. In this case, the driver of the vehicle had not been examined at all and he would be the competent person to speak about the accident. The evidence of D.W.1 who was not in the vehicle at the time of the accident is no use. At best his evidence regarding the manner in which the accident took place would be only hear- say. Going by the materials available on record I am of the opinion that the carrier had not discharged the onus or proved that there was neither negligence nor any criminal act on his part or on the part of his servant or agent. The issue of negligence goes against the carrier. As far as the last issue namely the value of the goods is concerned Ex.A.26 to A.28 being the primary documents, namely invoices and Exs.A.1 to A.3 and A.21 clinchingly establish the value of the goods lost in the transit. The evidence available on the defence side is not worthy of acceptance in preferring to the evidence of the plaintiffs on the value of the goods. Accordingly this issue also goes against the defendant. As a result of the finding on the three issues framed by this Court I am in entire agreement with the learned trial judge who held against the defendant. Accordingly I find no merits in this appeal and it is dismissed with costs.