IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 8" day of D€C.€II1b€1'. 2009 PRESENT . TI-IE HON'BLE MR. JUSTICE N A
AND _ _ fj _ L.
THE HON’!-‘SLE MR. JUSTICE C ZRT f
REGULAR FIRST v.r~;_;?EAL”N.o’.'” 2.77 :2
BETWEEN: 4 A H
Shiva Transport. Fleet g ‘ H’
and Transport Contractors’ ;
Door N0.1O9, T.VChan(i.17a:an=.LayQ%..n.’ ”
RMC :’R0a.d. I3Veii’.Fiff1L£:§€:ajé’.”~}§ép1*<:s-émed
Hereinby its Pa1'U1__i:r_ Sr; Khan …AppeI1am
~ VV'(ByV 'VS1fi",G.V"€3VhaI1ka1' Goud, Advocate]
A …..
_ ‘V’N_ati611;ii’Textiles Corporation
K,’f{V.””and M} Linmed, No.20/2
Nagé._;)A;321 Mansion. K.I'”‘l. Road
..Shar~i’thinaga1*. Bangalore M 560 027
.. By its Unit Mills Sri Yaliamma Cotton
“WOOIQI1 and Silk Mills, Tolhunse
ii/’
Davangere Taluk. by its Subrogee
the 2″” Plaintiff.
2 National Insurance Company
Limited, having its registered Office
At No.3, Middleton Street
Calcutta — 700 071 ~
Representecl by its 1
Regional Office, .
Chigateri Mercantile Buildirtg
Davangere. ._ _ ._
by its Divisiortai NIaI’lE1g€I:’*~__ V’ t V}.’.Res’por1dents
(By Sri O .}Tv’£a11(3Vsl1.. A’d.\_roe;1–€:e for R2:
Responder1f’§’;41 s’er:\V/ed}, _
Ttus zaryx {fled thidcf Sectunz EH3 of (zpc: agahist the
judgment a;11Ci”«T:._decre_e :; dated “30~9_g2002 passed In OS
DkL103/1997 ofi the rue of flfieil Addfihnnfl (nvu Judge
(Sr.Dn.}. E’21vajig.e1’e;’–«deeaéeeihgAt-hezsuit for recovery of damages.
TthisétRFA’=Coh:iin:,g§’zyirt for hearing this day, N. KUMAR J
delivered the foltowingz
%tgJUDGMENT …..
V T. is by the ciet”er1d2mt challe-r1gi11g the judgment
deC1’ee–.Voi£ the trial Court which has decreed the suit of the
p1aintivfi”:.fo1* a sum of Rs.2,45,408–00 with cost and future
V’ iraterest. at 18% pa. from the ciate of the suit till realisation.
Lu
2. For the purpose of convenience. the vpa1_ftfie_Vs are
referred to as they are refe1*red to in the c)1’iginal__sti’it.;.’ .. ” »
3. The first plaintiff is the
Corporation and the second
Company Ltd, The first plaintif’fIobt.:ained ajoolicty.
Insurance with Inland iron] llplaintifi
covering the risk of t1fe:’;1.sport.at’ion:’oi:”go’odslrom Un.it Mills
and Marketing Divisions to any where in
India and \r’iee–lt!e–rsa inter depot, inter
division, i_n1.ei'”~sho_wi7oonIilti.espa’:.Ches and inter processing units
and from various”siipf)i–i.ei’s. ali over India to its Unit Mills and
Marketingtinits tii_1’oL1ghQ-tit India. The defendant. is a common
carrier engaged in the business of carriage of goods from one
place on hire or reward. The Unit Mills at the Eirst.
“_.Yellamma Cotton Woolen and Silk Mills.
‘l’e.Ia.l’1unse.’;L:..DaS}anagge1’e Taiuk entrust.ed on Ii.07.l994 the
SC’I*i’t’3CI1;!.I.f,’.-iZ”.”I§__{OO(jS under stock transfer memo to its sales depot.
at nie1.a”gaon of Nasik Dist,riet, Maharashtra State. for
Ly.
transportation from Davanagere to Melagaon V_\ri_de the
defendants goods consignment note hearing
dated 11.07.1994. The Schedule -~A
vehicle bearing No. CTU 3804s.: “Fhe ‘toe.
defendant got wet in rain water
delivered the wet and damaQ;e_d’-bValesA’tri_theV
Melagoan and the Same the goods
consignment. note of damaged goods were
got. assessed Uii”0l,tgh and surveyor.
Sri. RR. Melitta fthjevllsaidlllsunreyrir inspected the
da1nal5Ied’- survey report cum assessment of
loss rep«ci1″1.=_l._’ Filed a claim with the defendant
()r1u3?2.0~8.i99’4’~Alr’hit>l4: was duly served on the deiendant. on
.A ’26.:O8,l9S4f’and there was no reply. However. the defendant
said damage by letter dated 20.07.1994.
Thereafter» the first plaintiff lodged their claim with the second
np,1aintif1″.for the loss of goods due to the above said reason. The
“‘._set.*ond plaintiflfl after coxnplianee of at} the formalities of the
~”CC)T1diti0l1S oi” the above referred policy, settled the Claim of the
‘JV
first plaintiff for Rs.2.45.408-00. The payment was made
through cheque and the relative disbursement. yo.u_ehder_vwas
obtained. Thereafter the first plaintiff
right. title, interest in the
schedule goods in favour of t.he:’».__seo’ond
company. The suit is filed hay “the sec;.r._)nd
of the unit of the first plaintiff. ff
4. The defei’1’da1j1t _asm_ae’:ll;.oVri*1-moii clarrifer is legally
bound to reimburse the loss vxt;he’_1plai11t’:ii’f because of
its Iiegligeitt .aeli:vi:’n..loss. as the defendant failed to take
due careland preeautionélllifahieh a prudent man could take while
trat,t’s1ljorti11gltheilgoods entrusted to it and also failed i.o
.A ‘1*e.ir;1btl1′:se,tii..e loss. The second plairtiifi proposed 60% of the
~los_s_«and”_~vsei’it:”letters to defendant. to settle the matter out of
the defendant did not respond. Therefore the
hi AAp?:esen’L”.s1.1it was filed for recovery of a sum of Rs.2,45.408-O0.
”’._being the aniount ofioss sustained by the first plaintiff.
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5. After service of summoris. the del’eridlaht. filed
detailed written statemeiit. It was specifically
the allegations in the plaint that the
carrier engaged in the business
place to another on hire or Vreyvardl§’—-\§/last speeifiCa’lly
false. They admitted that U11itV”iiitlLills atrii§1ah§i11V§;;;eVVtithe first
plaintiff on l1.07.l994%’er1trt_isteddo-:tthe–ly’dE’;.ehedille¥Al’goods Lilldfil’
stock and t.ransfei’ memo Melagoan of .Nasik
District, Mahgarashtra from Davanagere
to l\/lelagoéii railed'”é1’e~iTe1ict;ftnt”s.._QCRNote bearing No.OO353 dated
1 l.’7.lV99z€t theme and the schedule A. goods
were loaded ihi.y_a-,Vehit:le’« bearing No.CTU 3804 are hereby
admitted t.r”L:eVa–1’1d=.eo1<i'ect. However. they denied the damage
olv7V:i._lhe;b_goo.dS ()r1"aee–o'L1ni of rain, delivery of wet and damaged
' ybalye and said damage being assessed by surveyor and
his report. They also denied lodging of the
Claim plaiiitill with the defe-iida1'1t and thereafter claim
it *he__i'ng settled by the deferidazitz. They have denied their liability
,, to. rriake good the said loss.
6. Alter denying the allegations made in the plaint.
they have out their case in detail. They contend that
defendant is a transport commission agent and been
engaged in introducing the goods owner to the
any such transporters for the purpose of
goods from one place to another it.
On 11.07.1994, the ol”ficia1s_ot’ pi§,mtiI’;’s
approached this defendant to av.tr11_el’c.i”or lpnrposellof
transportation of theirtproduietlllirontltkiyanagere Melagaon.
The defendant introduceddO–fA’_’thet__truck bearing No.
cm 13804.,’A”sits.__°Mui<gi1d,_1:ar.' Behal. S/o KG. Behai of
Davanagere tor of the said consignment". by
recen/i"11g his eornitiisston. After the truck was taken by the
first .pl'el1l1I1tVit7£'«_ ofiiciallly to their Mill premises. their workers
lloadedstne and sent a stock transfer memo to the official
of this Vdei'§g;mdAa11t' through the truck owner. Accordingty for the
purposefof payment of hire or transportation charges a.nd for
1,/.llj,,v*ertifi.;?ation of the goods in the truck by the tax authorities. this
ll u defendant. issued a goods consignment note for tiansportation
of the said goods with risk of the owner. Accordingly the
second plaintiff transported his goods through oi'
the owner as stated above. in short, this ~21'
common carrier as alleged by the p;la»in_t.it'f his
neither the owner nor common l:C."'r'lI'l'§.L€lI"':l()l"'
No. CTU 3804. Any of thel__e'iaui'n1slltnade_bfirlllt»h:e–»…p}alintii'i'*in
collusion with each other is n_ot:A'inavihtainablehasvliiagainst this
defendant. This dei'endalnE, is agent. This
defendant has 'i1{)v'l§I1():'.IL"'l'f';'(..Zl-gt'? between the
plaintiffs alleged claim and
disbtilrvsentenffi-"fifigze' were transported at the owners
risk. lIl'S_tl(',h the first plaintill" has no right to
nial;e"a.ny elair_n'beea'use the transportation was not made at
V ' the CE1;i'.*t'VAl{"l'l;S,.'_l'lSl{. In Case of any claim made by the owners of
the heViYo.i'e any insurance eonipany and before settlement
oi"'*-ai1yv_v::lain=1; the claim should be approved and eonfirrned by
the ealirier or transporter. otherwise there will be no lawful
ll settlernent of any claims. it at all there being any claim, it
___should be made against the owner of the vehicle. Muralidhar
9
Behal. The defendant contends that he is not liable to pay
anything to the plaintifl’ as Claimed by the plaint.itl’. The suit is
defective. The plaint is not properly verified and
7. The alleged da.mage caused of
percolation of rain water is concerned,
the control of human agency. by.’
llamalies of the first plaintiff pac1l;.,eil.larid
the first plaintiff company. even
touching the cover ol”*~the _«golodsl;f?-yo’-3,gl1e t.rans”porter or his
employee will iitgflaiay oi7lfei’i.{.:e and if there is any change in the
Coverage or -the”ti:ah«s’porte1* will be held liable. Under
such _CiI’C1ll’i1Sxt:’c11″i(J.&*3S. “eitl’1:er the transporter or his employee will
3l.Q.t:.’j_l1 the”‘go–o.ds al’ter coverage and seal from the startirig
‘ ,poi.z1t.~._ 29tt”de”st_inaii0ii point the employees 01’ the first plaintiff
‘–w.ill.7reino_ve”the seal by making a note in the godown stock
register tliere2il’tei’ removing the coverage and unload the
V *oo_;1sigi’i1neI1t,. Hence. the alleged negligent act on part of this
dlefendant is mere imagination by the plaintiff to suit’ their
EV/o
H}
Claim. Sufi is barred by Iimitation. Therefore. they sought for
dismissal of the silii.
8.
On the aforesaid pieadings. the fi’;ina.ed
the following issues:
Whether Plaintiffs prove ‘Af “goods
entrusted to D’ef_er1dar’ii_ ‘jor 1$ransVport.a;i’ion “in
Malegoan were gc;’:’u}e-:; due torain fin t.heVVi3ransii’?
Whether Pihciintiffezh’fiirt–h}erj”prove assessment of
V ” T. a sum o__fRs.2.45.408/- with
‘ the the Defendant?
WhetherDeikenaani, proves that he is not {table to
VPirzuirViii'[f’s’V’ claim. since transportation vehicle of
xscI1.ediiie”V goods was owned by third person
i ‘ Miiralidfiar Behalf?
Whether this Court has no territorial jun’sd.ict’ion to
entertain the Suit as stated in W.S. Para No.5?
ta/r
5. Whether Plainttfl’s Suit is defective due to non
impleading of the owner of goods vehi_Cl.e_l even
barred by limitation’?
6. What reliefs the parties are er1tit_le__djto?’
9. To substantiate ‘the’~e1ain1A.’v-on -Vgoiaintfif.
the official of the insu__rance c_o_rrip.211’iy_ was ‘exa.mir$§ed as P.W-1
by name Ajay Kumar”S’riarri3.a.{_’ Adproduced 9 documents
which are marked as Vto_:[.beha1[‘ of deferidams.
one p_a:’tiie1* of the defendants firm was
examiried “as produced B~Register extract of
A.R_fT_,C. olTice. llavariagelre as Ex.D~1. showing the ownership
. , oi”-tklie i.t17u(tlg ii1\»’olve’ti”i:’1 the trarisaction.
‘ trial Court on appreciation of the aforesaid
‘=oral’azidudLoeiT::ii1enta1~y evidence on recrord held that the plaintiff
has that A schedule goods entrusted to defendant for
2 “L.ransportai.io1i to lvlelagaon were got wet due to rain in the
‘X/,
t.r2msit.. The plaintifl” has also proved the toss 0t’_.__’darI121ge
eemsed to the goods in d sum of is
within the knowtedge of the defendant.
faiied to establish its ease of C<)n'm__1tssiQr1
truck in question was owned by 'd
the defertdant. is 'liable t.'d__15'e1y the'V-rttorteyfdttdttjfifivteiq
Court has territorial jLtrisdicttortxtie:_adj_t,1dieate_ :t:t1eVAvvdtspute. The
suit of the p1ai1'1tift' is no1':tdeAfectt'i;fe; t'o'15r:ot"tmpteadirlg the owner
of the goods vehtele. v_tt1:efé;t:1tt is not barred by
time.
11. dd said judgment. and decree of the
t1’tatC<)_;1rt, t'.t1e_ det'e11d.:mt 113$ preferred this £tpp€:2'd.
A.’1’t1e’VIe’etrtied Counsel for the appeitant assatltng the
.4fi£3,d'””de(:1*ee of the trial Court contended that the
de_Ienda13te”§y’aVs onty E1 eommisstort agent and not a transporter.
Theretforite the defendant cannot. be held liable for the toss or
.det1″tjage Caused to the goods while t.ransi.t. Seeondty. it was;
contended ihai. the defendant. received ihe ctolisignfiiexli for
i.ransport.ati0n with an express condition that fi:ies:fe~nt!.§1111
will not be liable for any such occasioned’7du1’i:1gvi’it’af:’si1v;«.,
Therefore, even if there is any clianiéige, .;the’ «goods were?’
transported ai. the risk of the first
‘liable to make good the loss.
13. In the light of _i’.heu._aierese1’id-[.scis and rival
contentions, the pointsihai. agrise£fo19’e§m»si:1eraii0n are:
defendant is a
i ._ cVummI.'”Sesi<")n_. or a public carrier ?
A{2'}a ".–«i1¥ie3r1 there is an express stipulation in
agreemeni ihai" the defendant is not
i to make good the loss, wheiher the
ma! Court' wasjiistified in decreeing the suit
Qf the piainiiff '?
POINT NO: 1
I4. Ex.P–i. the Goods Consignment. Note–“‘–..Ioearing
No.0O353, which bears the signature ofD.Ww1
Partner of Shiva Transport. Agency. shows
Rs.4.71.0vO0 received as Freight céh-ai'”ge’s«c
noted in the document. like desti>f;.;tt.i’o_1i’.’V 2
Malagaon, particuiars of ._i_s’ yarn
[Cotton], 7.5 tons was, 3oe de.1’i\}ered door. et.c..
shows that the goods vtfei*e plaintiff to the
defendéinit’. -tfoifj trét:t9:spo’1″t,sitio1i«’é;s'”the defendant: was a public
earriei; in which the goods were loaded.
do not beio1″1g t.o”–de'[‘eiicigiitt and it belongs to Mui’alidhai* Beha].
as “clcétrV£1*o.n1″Ex.§)–1. the first piaintiff has no privity of
co’nt’ra5c’tA with the of the truck. Goods were entrusted to
‘ V1V.h’c–.cdefei1datn’i for transportation. who in turn has hired the
.v’eih_ice1e’ ‘i’:i’f’Q1f’i1″V’}..\YA1’tE1’El1iCH1’c1f Behal. the owner of the truck. The
defeI1d_.;tnto.VA.:’~h’as coiiected the freight charges and not the
con1rniVs:si()n for bring about the eontore3.ct’.. Ex.P–3. the letter
tt/
Io
executed by the first piaintift’ in favour of the second plairitiff.
It is the1*eal’i’er. ihe present suit. is fiied. The defendant as a
public carrier, is bound to answer the Claim of the piai’1=i.t_.i’ff and
make good the loss sustained by them in resp_ee.i
erltrusted for being t:1’ansported. Th.e.i’e_i’o1’e_-‘the” “ti’i;1iV”CQtirt iwas _
justified in holding that the deieiidant i2.ot~ o’o:ii-mis.sion .
agent”, it is a public ca1*1*:e_r’,’—-.__t1-ansportationih A».Q{..,tHiV1e3
entrusted were admitted ai1d__1_iabi_11″;y oi”,i.’h–e’:pub1:iC Carrier is
absolute and is liabie to*–.}:iayA the 2saVid*–afmo’u_nt.
POIN’i’_ N0: 2 ‘ _V
I5. ‘ i Reiian.C'”e.Vis,. on Clause 5 which is on the back
sidegoi’ E}x.P~2;”\,7qh’ieli reads as under:
‘ A. The “” “Company is not responsible for
~.__’Ci:fcvz,£in.si’ance beyond its control such as accident’,
« fire etc. ”
The fact that the goods entrusted for trar1spo1’t.a_’Li_or1 was
damaged. is admitted in the ietier written at
reads as under:
“‘ This is to 1’z1j’orm y()li:¥’I}’1Cli:’4I’ii’£§3″CQTiSiQ’-hiiigffiihxx: A
booked under m..-§:’~ iv
delivered in wet cofidvii.’i{)f1 {E36
150 bags} due to i1eaoy«.fainVs. e’oer;V:fii:o1,Lwa£1 we
have coLve1’ed;:Li:iiI1 tjf1″e%.¢bags wet
which was beyon__d’ .
the “eof1,;5ignrfie.r1t” booked under
we not liable for any
;:zamc;gz£’j’z-o_ss.,:rtc;;.a:;—9:1 in this regard ”
“i’hefefo–re«.’ danlage to “the goods enuusied is not in
V —liabiiity to pay the damages is avoided on {he
.gro’uI1d thfagieeeithe consignment was booked under the owners
risk. .. The ciause set out above do not. show ih3.i’ the goods were
:seni« at the owner’s risk. All that it. says i.s the Company is 110%
V’:I’esponsib1e for eireuiilstanees beyond its control such as,
iv
accident, fire, delay. etc… Damage to the goods \k’;’iLS–«.>110l on
aeeount: of any aeeicient. fire or delay. It was ‘oil’; aC–cfo.Li’iit of
heavy rains and goods were not properly proizeelteoiticligiriiighthe
transit. Even ii’. in spite of tE1Ff_Jéitill’I1.bl:ing. _eov_eredCtol’vthef
goods. if the bags were wet. it
beyond the Control of the }:l>lub:li’e1_Mbea1;r”:er_f. ‘ tliat.
goods entrusted were not lwivth iarpaulin and
therefore not all the (lamaged, it is only
66 bags out ..Qlf::i5Q «V:”,;<il§ot:lldamaged. This is
sheer carrier in not taking
p1'opelr__A t.o him. Therefore under
SCCEiOI1"9«Ol. the the public earrier is liable to
itiaigjtelgood thl'e…cV_iaIi1'ag'es.
A37'; ' _"E'he elelieliidaiit is a public carrier. The provision
'lrelalIir;g.__tov illteliiability of the common Carrier for the loss of or
clarhage to 1-yytlie goods entrusted to him for carriage are to be
foui'1dVvi.ri Sections 7. 8 and 9. The liability arises out of breach
of duty. The earriei" owes two duties. He owes the duty to
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I')
accept. and carry the goods according t.o his public: p_;'oi'ession
and, secondly. he owes the duty to deliver the goQk:ls:'jsai'eVly at
the destination. The carrier may fail to d_e:ii–verA«V'thie–. geod.s
because they might have been lost »e.n.__route of n.ia.yA.delivei'. ll
them in a damaged condition. In ;'eith.ei~A.ease._h'eis liahle'f'?1.iy'yT'he 2
principle of English Law is that-,_the ea1'i*1er is.:'ali3.so.1tiyteiy liable
for any loss or destruction oi_'___th-eV_go_ods;.' undertakes the
liability of an insurer. sl1o:{iid'4eiVtl1e1*__deli\/er the goods or
pay compensation for, w–i–ei.1f'=loss_aQr'Hdest1':1ie.tion. The liability
under the _;"iet."'i.s not eonvi.vr'aet.t'1"a"l. Thus the liability of
the eai'rie1" yii=i_ti'e-__o'i' the law and not by Virtue of the
Contract which he with the consignor. The position
A pLtbliC'Atf.A?'1i'Fié1T_ is absolute and that of the insurer. Therefore,
"liable the damages sustained by the consignor
when liie' v.raS unable to transport. and deliver the Consignment
' iinythe 'eor1dii.ioI: in which it. was entrusted to him.
lo
of laxi} the"'ean.ie as in England. 'l"'herefore the liability of
18. For {‘.he aI’0resa1id reasons. we do 110€’.”‘:~;ee any
ilifirmity in 1.he_jL1c1g111ent and decree passed by_t.h,e »1~r’iaE’V;~CeyL1rt..
the trial Couri on proper appreciatiorl ‘o-1:fVd¢.rae1–..and..
docunlemary evidence on record; keeping in .n_i1ng:!_Vt11’e Eegaleé.
position and the legal evidence on 1″e__e0’rdffis righ}’i3* decereed the
suit of the piaimiff. In the :*esu.1.fZV–ewe pelss {he :If<)1lAVi3V'Wui1'ig' ordery
Appeal dismissed, coéfs.