IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 369 of 1994()
1. T.C.C.LIMITED
... Petitioner
Vs
1. INDIAN AIRLINES,MADRAS
... Respondent
For Petitioner :SRI.E.R.VENKATESWARAN
For Respondent :SRI.A.M.SHAFFIQUE
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/11/2007
O R D E R
lM.SASIDHARAN NAMBIAR, J.
...........................................
S.A.No. 369 OF 1994
............................................
DATED THIS THE 20th DAY OF NOVEMBER, 2007
JUDGMENT
Plaintiff in O.S.151 of 1989 on the file of Sub Court, Cochin
is the appellant. Defendants are the respondents. Suit was filed
for realisation of damages caused to the consignment sent
through Indian Airlines flight. Appellant placed orders with a
West German Company for purchase of spare parts of the
machinery. The consignment was sent from Frankfurt, West
Germany to Cochin. It was sent by Swiss Air from Frankfurt to
Bombay. From Bombay it was rebooked to Cochin by Indian
Airlines flight. The goods arrived at Cochin Airport. As per letter
dated 18.9.1987, appellant was directed to take delivery of the
goods after customs clearance. Appellant contended that on
verification of the spare parts of the machinery, it was found that
damages were caused to the machinery. Surveyors were
instructed to assess the damages. The Surveyor, under Ext.A11
report, fixed the damages at Rs.13,271/-. Suit is filed for
realisation of the same with interest @ 18% per annum
contending that damage was caused due to the negligent act of
respondents. Respondents resisted the suit contending that
SA 369/1994 2
consignment was sent from Frankfurt to Bombay and from
Bombay to Cochin on a consolidated cargo and the first leg of
transport from Frankfurt to Bombay was by Swiss Air and it was
booked for delivery to the consignee, at Bombay through Indian
Airlines and suit is bad for non-impleading the Swiss Air. It was
also contended that notice was not issued within 14 days of
taking delivery and damage was not caused by respondents and
hence appellant is not entitled to the decree sought for.
2. Learned Sub Judge, on the evidence of Pws 1 to 3, DW1,
Exts.A1 to A23 and Exts.B1 to B4, dismissed the suit holding that
though Ext.A11 Survey report establish that appellant suffered
damages in respect of the consignment, suit is bad for non-
impleading of Swiss Air through which the consignment was sent
from Frankfurt to Bombay. It was also found that there is no
evidence to prove that damage was caused to the consignment
while it was being carried from Bombay to Cochin. Appellant
challenged the judgment before District Court, Ernakulam in
A.S.15 of 1991. Learned Additional District Judge, on
reappreciation of evidence, found that under Section 30(3) of
Carriage by Air Act, 1972, (hereinafter referred to as the ‘Act’)
carriers will be jointly and severally liable to the passenger or to
SA 369/1994 3
the consignor or consignee and as the liability is joint, suit is
not bad for non-impleadment of Swiss Air as case of appellant
was that damage was caused while consignment was transmitted
from Bombay to Cochin. But on the evidence, it was found that
there is no evidence to prove that damage was caused when the
consignment was taken from Bombay to Cochin and evidence of
DW1 establish that no damage was caused by respondents.
Therefore the dismissal of the suit was confirmed. It is
challenged in the second appeal.
3. The second appeal was admitted formulating the
following substantial questions of law.
1)Whether on the facts and circumstances of the case, Swiss Air
is a necessary party.
2)Whether on the facts and circumstances of the case,
defendants discharged their burden as a carrier.
3)Whether on the facts and circumstances of the case, defendant
as bailee has to explain how goods have been dealt with.
4. Learned counsel appearing for appellant was heard.
The argument of the learned counsel is that courts below should
have found that the machinery which was entrusted for
consignment was got damaged when it was carried by
SA 369/1994 4
respondents and on the evidence it should have been found that
respondents did not discharge their burden. It is therefore
argued that appellant is entitled to the decree sought for.
5. Admittedly machineries were sent from Frankfurt to
Cochin on a consolidated cargo. The first leg of the transport
was from Frankfurt to Bombay. That consignment was sent by
Swiss Air. It is thereafter the consignment was rebooked from
Bombay to Cochin. Damages was claimed from the respondents
on the allegation that the consignment delivered to the appellant
at Cochin was found damaged and the said damage was caused
by the negligence of respondents. The argument of the learned
counsel is that respondents did not succeed in establishing that
damage was not caused by their negligence and as damage was
not caused when the consignment was from Frankfurt to
Bombay, only respondents are liable. Learned Sub Judge found
that without impleading the Swiss Air, suit for damages as
against defendants is not maintainable. Learned Additional
District Judge relied on Section 30(3) of the Act and found that
the liability of the carriers is joint and several and if damages is
caused by one of the carrier, suit as against the carrier is
maintainable without impleading the other carrier and the
SA 369/1994 5
allegation is that damage was caused by respondents and so suit
is maintainable even though Swiss Air was not impleaded.
Section 30(3) of the Act reads:-
“As regards luggage or goods,
the passenger or consignor will
have a right of action against the
first carrier, and the passenger
or consignee who is entitled to
delivery will have a right of
action against the last carrier,
and further, each may take action
against the carrier who
performed the carriage during
which the destruction, loss,
damage, or delay took place.
These carriers will be jointly and
severally liable to the passenger
or to the consignor or
consignee”.
6. Even if the view taken by learned Additional District
Judge is correct, suit against respondents alone would lie,
SA 369/1994 6
without impleading the Swiss Air which was the first carrier
through which the consolidated cargo was sent from Frankfurt to
Bombay, only on establishing that no damage was caused to the
consignment while it was being transmitted from Frankfurt to
Bombay and proving that damage was caused only while it was
transmitted from Bombay to Cochin. There is absolutely no
evidence to prove that damage was caused while the
consignment was transmitted from Bombay to Cochin. Evidence
of DW1 establish that consignment as received at Bombay at the
time of re-booking the cargo and it was delivered to appellant at
Cochin in the same condition. Appellant did not adduce any
satisfactory evidence to prove that no damage was caused to the
consignment before it was transmitted from Bombay to Cochin. If
that be the case, on the evidence first appellate court rightly
found that appellant did not establish that the damage was
caused while the consignment was transmitted from Bombay to
Cochin. Therefore, I find no merit in the appeal. It is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-
SA 369/1994 7
M.SASIDHARAN NAMBIAR, J
SA 369/1994
JUDGMENT
20.11.2007