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Mr.Narendra Kumar Harlalka v. M/s.Green Roadlines - C.S.No.708 of 1998  RD-TN 534 (29 July 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.S.No.708 of 1998
1. Mr.Narendra Kumar Harlalka,
Exports, rep.by their
2. M/s.National Insurance Company
Limited .. Plaintiffs vs
1. M/s.Green Roadlines,
No.244, Govindappa Street,
2. M/s.Green Roadlines,
a partnership firm
No.4904, Parasnath Marg,
Sardar Bazar, Delhi 110 006. .. Defendants For Plaintiffs : Mr.A.Nageswaran
For Defendants : Mr.R.Thiagarajan
This suit has been filed for a money decree for a sum of Rs.26,83,12 5.50 together with interest at 18 per annum from the date of plaint till the date of payment and for costs.
2. The averments in the plaint are as follows: The first plaintiff imported two consignments of synthetic lining each measuring 80000 metres, packed in 100 export worthy carton, each carton containing 6 rolls, each roll measuring 30 metres under a commercial invoice of M/s.Kabool Limited bearing Nos.J25F 031ABO and J25F 031ACO both dated 9.3.95 valued at US 43200/- EACH, CIF Madras at the rate of US$ 2.40 per metre. The said two consignments were carried under two different bills of lading and discharged at the Port of Madras for onward transportation to Delhi by road. The clearing and forwarding agents of the first plaintiff cleared the said consignments in apparent good order and condition from the Port of Madras and entrusted them to the first defendant, who acknowledged such entrustment in apparent and good condition under their two consignment notes bearing Nos.007157 and 007158 both dated 21.4.95. The goods consignment notes issued by the first defendant also reflected the pre-paid freight amounting to Rs.16,500/- under each of the consignment notes. The said consignments were intended for 'Door Delivery' to the first plaintiff at Delhi. The first defendant did not deliver the consignment. On the other hand, they notified the first plaintiff about a fire accident in a godown at BG-348, Sanjaygandhi Transport Nagar, New Delhi on 26.4.95. Immediately, the second plaintiff was notified about the loss to the cargo insured with them. M/s.A.K.Govil & Associates, an independent licensed insurance surveyor and loss assessor was instructed to assess the loss. Pending the survey report, on 15.5.95, the second defendant issued a certificate confirming that the said two consignments were destroyed in a fire accident in their godown on 29 .4.95. The plaintiffs are not aware of them jural or contractual relationship between the defendants 1 and 2. The plaintiffs are also not aware of the circumstances under which the second defendant took custody of the consignment entrusted to the first defendant, and since there is no disclosure as to the nature of the relationship amongst them, the plaintiffs are constrained to sue the defendants 1 and 2 who are the carriers to whom the consignments were entrusted. The said surveyor issued their survey reports dated 17.5.95. The surveyor found the cause for the fire either due to the electrical short circuit or negligent and careless disposal of a lighted beedi/cigarette. Quotations were called for for the damaged stocks, and the highest quotation was Rs.15000/-. After repeated discussions, the surveyor persuaded the first plaintiff to accept such stocks at 3 of their sound value. As far as the rolls, the quotations of the local buyers were too low, and consequently, the surveyor persuaded the first plaintiff to accept 87 tolls at 20 of their sound value. After giving credit to the salvage value the net loss was arrived at Rs.13,28,772/- in respect of each of the consignment. Thus, the first plaintiffs sustained a pecuniary loss of Rs.26,57,544/-. That apart, the first plaintiff had to pay Rs.12791/- each as remuneration to the surveyor in respect of the two surveys conducted by them. In respect of the said two consignments, the first plaintiff sustained a pecuniary loss of Rs.1 3,41,562.75. The said loss is on account of the failure on the part of the defendants to care for, carry and deliver the suit consignments in the same apparent good order and condition to the first plaintiff. The loss ought to have been only as a result of negligence and/ or misconduct coupled with misfeasance, malfeasance and/or nonfeasance on the part of the defendants. The defendants are under a statutory obligation to disclose as to how the consignments were dealt with while they were in their exclusive custody and during transit. The defendants are under a statutory obligation to make good the loss. On 1 5.6.95, the first plaintiff sent two independent notices addressed to the defendant's Madras Office under copy to their Delhi Office. In spite of the same, the defendants failed and neglected to make good the loss. The said notice is valid notice. Both the defendants are jointly and severally liable to make good the loss. The suit consignments were insured under the open policy bearing No.500505/44/24/45001 65(Open) under declaration Nos.1407 and 1408 dated 21.4.95. Under the policy, the second plaintiff indemnified the first plaintiff by paying a sum of Rs.26,57,544/- as compensation and are thus subrogated to the first plaintiff's rights of recovery from the defendants by virtue of a letter of subrogation by them on 25.3.98 and also under S.79 of the Marine Insurance Act. The first plaintiff also executed a letter of subrogation and special power of attorney thereby empowering the second plaintiff to file and maintain legal action against the defendants. Thus the second plaintiff is entitled to initiate legal action against the defendants in their own name. The plaintiffs have no objection to a decree being passed either in favour of the second plaintiff or in favour of both the plaintiffs. Subsequent to such settlement, the second plaintiff entrusted the claim papers to their recovery agents for recovering the claim amount from the defendants. The recovery agents sent a notice to the first defendant on 14.11.1996. But the defendants failed and neglected to satisfy the demand. Hence this suit has been filed for the abovestated reliefs.
3. The averments in the written statement filed by the defendants are as follows:
The first defendant is a proprietorship firm and the second defendant is a partnership firm. The first plaintiff imported two consignments of synthetic lining under a commercial invoice of M/s. Kabul Limited at US Dollar 43200 etc. are not within the knowledge of these defendants. The goods were loaded in two trucks M/s. Neptune Exports, Madras which were intended for door delivery to their counter part at New Delhi. The goods were entrusted to the first defendant for transportation to Delhi to be delivered at their premises. The goods were loaded for transportation to Delhi and before the goods could reach Delhi, the first plaintiff has requested the first defendant not to unload the goods at their premises as originally instructed by them since the first plaintiff did not have sufficient space to unload the goods and hence instructions were issued to the first and second defendant to keep the goods at New Delhi at the risk of the first plaintiff. The first plaintiff insisted that the goods that were despatched through M/s.Green Roadlines be kept at their Sanjay Gandhi Nagar godown at parties risk and with a view to maintain the good business relationship between the first plaintiff and the defendants the defendants agreed to do so. The first plaintiff ought to have taken delivery of the goods within two days as promised by the first plaintiff on its arrival at Delhi and before the first plaintiff could take delivery of the goods there was a fire mishap in the business godown of the second defendant due to electric short circuit and the goods which were lying at Sanjay Gandhi Nagar godown premises of the second defendant were almost burnt and lost its value. The goods that were secured after segregating the burnt goods, were transported back to Madras on instructions from M/s. Neptune Exports Madras and the goods which were in good condition were delivered to the first plaintiff and an amount of Rs.33,040/- is due and payable to the defendants towards the freight charges. On instructions of the first plaintiff, the goods were retained by the second defendant at the risk of the first plaintiff and it cannot be said by any stretch of imagination that the second defendant had taken up the responsibility for any loss that may be caused to the goods and it is wholly and solely the responsibility of the first plaintiff. The second defendant reported to the fire service department and also to the Police immediately and also secured necessary certificate and the report as required after the fire accident. The second defendant was required to sign the letter at the instance of the first plaintiff on 30.4.1995 specifying that the goods were worth about Rs.24,74,796/- to enable the first plaintiff to claim the value of the goods by way of insurance claim from the second plaintiff and the first plaintiff requested a letter in the letter head of the second defendant. Believing the first plaintiff, the second defendant had issued a letter dated 15.5.1995 in the manner required by the first plaintiff. The first plaintiff caused a registered notice to the first and second defendants demanding the payment of Rs.13,87,498/- being the value of the consignment as compensation arising out of fire. The defendants informed to the first plaintiff that the first and second defendants are not liable to pay the value of the goods, since the goods were kept in their godown at the risk of the first plaintiff. As a matter of fact, the goods which were so transported through the truck of the first and second defendant reached destination, namely, New Delhi without any damage and the goods were received in a good condition at the godown premises of the second defendant at New Delhi. On instructions from the first plaintiff, the goods were kept in their godown at the risk of the first plaintiff. For having accepted to such a recourse, the plaintiffs are not entitled to call upon the defendants to pay jointly and severally a sum of Rs.26,83,125.50 with future interest being the alleged loss caused to their goods transported through them. The first plaintiff has not paid the freight charges amounting to Rs.33,040/- with interest @ 18 p.a. from the date of delivery till the date of actual payment. Hence, the first plaintiff is liable to pay Rs.33,040/- towards freight charges and Rs.21,806/- towards interest and in all Rs.54,846/-. Hence, the suit has got to be dismissed with costs.
4. On the pleadings by the respective sides, the following issues were framed:
1. Whether the plaintiff are entitled for a decree for a sum of Rs.26 ,83,125.50/-?
2. Whether the suit is not maintainable since the valid notice under Section 10 of the Carriers Act, 1865, was not issued?
3) Whether the plaintiff is liable to pay a sum of Rs.33,040/- to the defendants as claimed by the defendants in the counter claim? 4) Whether the counter claim is barred by the law of limitation? 5) To what relief the plaintiff is entitled to?
5. ISSUES 1 TO 5: The plaintiffs have brought forth this civil action against the defendants who are the common carriers for a sum of Rs.26,83,125.50 with subsequent interest, alleging that the defendants are liable to pay the same towards the pecuniary loss on account of the failure on their part as common carriers to care for, carry and deliver the suit consignments to the first plaintiff; that the second plaintiff insurance company has indemnified the first plaintiff by paying the said sum in view of the consignments being insured; and that the first plaintiff has executed the letters of subrogation and the special power of attorney thereby empowering the second plaintiff to recover the same from the defendants. The defendants have resisted this claim by stating that the first plaintiff requested them not to unload the goods at their premises, since the first plaintiff had no sufficient space to unload the goods, which were consigned through the first defendant; that the goods when stored in the godown of the second defendant at Sanjay Gandhi Transport Nagar at the first plaintiff's risk, the consignments were destroyed by fire accident due to electric short circuit, and hence the defendants were not liable to meet the claim of the plaintiffs, but the first plaintiff was liable for the counter claim made by the defendants for a sum of Rs.33,040/- which was due and payable to the defendants towards the freight charges for the services rendered for carrying the salvaged goods from New Delhi to Madras.
6. The learned counsel appearing for the plaintiffs would argue that the plaintiffs have filed the instant suit against the defendants for breach of statutory obligation and for recovery of a sum of Rs.26,8 3,124/-; that the plaintiffs examined P.W.1 and marked Exs.P1 to P15; that according to Ex.P1 an open policy taken by the first plaintiff, the suit consignments were insured with the second plaintiff; that the original commercial invoices reflecting the value of the two consignments were marked as Exs.P2 and P3; that the second defendant at New Delhi issued two certificates of non delivery/total destruction on 15.5.95, as evident from Exs.P4 and P5; that from Exs.P4 and P5 it could be seen that the second defendant had admitted the entrustment of the imported consignments viz. 100 cartons synthetic lining ; that it is pertinent to note that under Exs.P4 and P5, it is certified by the partner of the second defendant that the insured consignments were destroyed by fire and water, and thus the defendants had admitted the entrustment and the destruction of the consignments in entirety; that it has to be noted that the defendants have admitted the identity of the consignments, and hence, the defendants are estopped from pleading contrary to the contents of the said two documents; that it is also pertinent to note that the quantum of loss, though admitted by the defendants, was investigated by the independent surveyor M/s.A.K. Govil & Associates, who submitted their survey reports under Exs.P6 and P7; that it remains to be stated that the surveyor assessed the value of the salvage and gave redit for such salvage value of Rs.58,725.8 5 in respect of each of the consignments and thus arrived at a total loss of Rs.13,28,772/- under each GC notes, which is fair and reasonable; that this will explicitly explain and establish the attempt on the part of the plaintiffs to mitigate the loss, and in particular, the second plaintiff's endeavour to comply with S.64-UM of the Insurance Act; that notices of loss dated 15.6.95 were sent to the Chennai and New Delhi Offices of the defendants under Exs.P10 and P11; that in the instant case, there is compliance of S.10 of the Carriers Act of 1865; that it is evident from Ex.P12 voucher that a sum of Rs.26,57,5 44/- was paid in full; that the first plaintiff has also executed a letter of subrogation cum special power of attorney on 25th March, 199 8 dat Chennai, which is marked as Ex.P13; that under Ex.P14 the recovery agents of the second plaintiff demanded payment of compensation from the defendants; that the surveyors submitted their bills under Exs.P8 and P9 for the services rendered by them; that it is contended by the defendants that the first plaintiff did not take delivery of the goods at the doors, but instructed storage in the godown of the carrier, and the storage of the goods in the godown of the second defendant was at the risk of the first plaintiff, and they did not continue to be the common carrier so as to attract the absolute liability under the Carriers Act of 1865; that it is also contended by the defendants that the fire accident had occurred on account of factors beyond their control; that it is pertinent to note that the pleading in the written statement at para 6 and the attempted proof in the witness box are different on this issue; that it may be noticed that what is stated in the written statement is contrary to what is deposed by DW1; that in the written statement it is stated that the request was made to the first defendant, whereas in evidence it is stated by DW1 that the first plaintiff requested the second defe ndant; that DW1 has also confirmed that the defendants do not have anything in writing to show the request made by the first plaintiff to the second defendant to retain the goods; that DW1 has also admitted that after 26.4.95 and prior to the filing of the written statement, they have not confirmed with the second defendant as to the request of the first plaintiff to them to retain the goods; that it is clear from the evidence of DW2 that he has given a vivid narration of the events that took place on arrival of the carrying trucks at New Delhi; that DW2 has stated that one Agarwal instructed him to unload the goods at their Sattar Bazaar Godown; that the normal course of action should be to directly unload the goods in their godown in as much as the case of the defendants is that they were informed by the first plaintiff to unload the goods in their godown even before the goods reached Delhi; that it is relevant to note that the first plaintiff was summoned by the defendants and examined as DW3; that DW3 has denied the story of the defendants; that Mr.Agarwal examined on commission as DW4 at New Delhi has also pleaded ignorance of the alleged instructions as deposed by DW2; and that according to DW4, he came to know about the consignments in question only after the fire accident. Added further the learned counsel that the consignments were in the custody of the defendants in their capacity as a common carrier, and the fire accident having occurred before the termination of transit/delivery, the defendants are squarely liable in law to make good the loss; that the principle of Res Ipsa Loquitur (Thing speaks for itself) is attracted; that the liability of the defendants is absolute and unconditional notwithstanding absence of negligence; that the attempt on the part of the defendants to show that they have acted as an ordinary prudent human being is of no avail in view of their character as a common carrier; that the Bench decision of the Supreme Court and the Andhra Pradesh High Court are capable of establishing the liability of the defendants beyond doubt particularly in the absence of pleading or proof a Special Contract; that regarding the quantum of loss suffered by the plaintiffs, in the decision of this Court reported in 1988 I LAW WEEKLY 327, it is said that the non-examination of the surveyor is not material particularly when the compensation amount paid by the insurer to the insured is sufficiently proved; that it is pertinent to note that the suit is filed on the basis of the subrogation obtained from the insured; that the counter claim is made by the defendants for the first time in the written statement; that the defendants have not produced any documentary evidence in the form of a goods consignment note to establish the fact that the consignments were carried from New Delhi to Chennai; that there is no proof of consensus between the first plaintiff and the defendant, and thus there is neither liability to pay the alleged freight charges of Rs.33,040/- nor interest as claimed; that the second plaintiff is concerned only with reference to the Marine Transit from Chennai to New Delhi; that if the defendants had any agreement with the first plaintiff, they could have worked out their remedy independently against the first plaintiff as per the legal rights available to them; that DW3 has pleaded ignorance about the counter claim and deposed that the defendants orally agreed to send the damages goods from New Delhi to Chennai without any freight charges, and hence, the counter claim of the defendants is liable to be dismissed with costs; that for the reasons stated above, the suit has to be decreed as prayed for with costs. In support of his contentions, the learned Counsel relied on the following decisions; 1) 1988 I L.W. 327, 2) 2001 ACJ 40; and 3) 2001-1-L.W. 756.
7. Countering to the above contentions of the plaintiffs' side, the learned Counsel for the defendants would submit that the first plaintiff Neptune Exports, Madras entrusted the suit consignments to the first defendant; that though the entrustment was made through the clearing agent, the first plaintiff directly contacted the first defendant for transportation of the goods; that the consignments are described in Ex.P1 open policy as "leather garments and its allied products, etc.", but the goods that were entrusted were Synthetic Velvet cloth, and thus, the identity of the subject matter is different; that the goods were entrusted on door delivery basis, and they are to be delivered at the first plaintiff's New Delhi branch; that on the 4th day, after the entrustment of the goods, when they were about to reach New Delhi, Mr.Harlalkha of the first plaintiff contacted the defendants from Madras and asked to retain the goods with them, because the Delhi branch office did not have sufficient space to store them, but the first defendant refused to accede to the request; that Exs.D4 and D5 were the challans of instructions given to the lorry driver to deliver the goods to the parties at door; that the goods were put on transportation; that they commenced its journey on 21st April and reached Delhi on 26th April; that the first plaintiff requested the second defendant to retain the goods because he did not have sufficient place to store the goods with him; that according to D.W.2 Maksood Ahmad, who is the godown in charge cum truck maintenance in charge in the 2nd defendant company, there are two godowns in Sathar Bazaar, and the goods brought in two trucks were received at Delhi, and they got a phone call early in the morning from the two trucks informing them of the arrival of the two truck loads consisting of the goods belonging to the first plaintiff, and the truck drivers asked them for the freight and they informed them that the charges have already been paid at Madras and directed them to deliver the goods to the first plaintiff's address, and he got the phone from the truck driver by name Balbeer Singh in the morning at about 11.30 a.m., and he instructed the lorry driver to phone him on reaching the party's address, and after reaching the address given in the lorry receipt, the truck driver phoned him up and told him that there is no name board containing the name of the party written on the lorry receipt in the address given in the same, and in the said address a board named 'Grover Property' was found, and he asked the driver to remain in the same place and told him that he would contact him after some time, and later he contacted the main branch office at Sathar Bazazar, and the officials therein gave him a telephone number and he contacted the said number, and one Mr. Agarwal came on the line and told him to retain the goods where they were standing at that time and that he would give him further instructions after some time, and till 4.00 p.m. the lorry with the load was waiting at the same address and at 4.00 p.m., the truck driver once again phoned him up, and he again contacted Mr.Agarwal and informed him that their truck driver was calling him up frequently complaining that the police personnel were pestering him, and he told Mr.Agarwal that he is going to the said address where the trucks were standing with the load and asked Agarwal to reach the said address, and when he reached the place, Agarwal also reached and told him that the goods in the truck could not be unloaded because he is still talking to the parties to whom he wished to sell the said goods and that he cannot unload the goods unless and until his talks with the prospective buyers fructified, and he requested him to unload the goods at their Sathar Bazaar godown. Added further the learned counsel that since the defendants did not have space in their said godown, they stored it in their godown at Sanjay Gandhi Transport Nagar belonging to the second defendant; that at the time the goods were kept in the godown at the risk of the first plaintiff; that the first plaintiff told them that they would be taking the delivery within two days; that they did not come forward to do so; that on the third day i.e. 29th April, there was a short circuit in the godown, due to which the goods stored caught fire; that immediately after the fire broke out, the fire squad was informed about the incident, and the police patrolling in the area also informed the fire squad due to which the fire personnel came to the godown within 20 to 30 miutes; that the goods got burnt; that a surveyor came and assessed the loss; that apart from the suit goods, other goods also got damaged, and the building premises also suffered extensive damage; that at the time of the survey, the representative of the second defendant was present and helped the Surveyor in segregating the burnt goods and the salvaged goods; that it is true that the surveyor has given a report under Exs.P6 and P7 along with the photographs; that except a few bundles, which were totally burnt, all the rest of the goods were sent back to Madras on the request of the first plaintiff; that Exs.D6 and D7 are the Haulage contracts under which the salvaged goods were sent back from Delhi to Madras; that when the first plaintiff requested to retain the goods at their risk, the defendants asked for a letter from them, but the first plaintiff told that they would give the said letters at Madras; that thereafter also no such letter was delivered to the defendants; that in the meanwhile, the goods were caught in the fire; that Exs.P4 and P5 certificates were issued to the first plaintiff only on the representation made by the first plaintiff that they wanted to make a claim before the insurance company, and in order to help them to claim the insurance amount, the second defendant has given the said certificates; that it is pertinent to note that a perusal of the certificates would clearly reveal that they were given without prejudice, which would indicate that those certificates were issued only to help the first plaintiff, but taking undue advantage of those certificates, the plaintiffs have come forward with the unlawful claim; that the second defendant preferred a complaint to the police; that apart from that, the second defendant made a request to the Delhi Fire Service Department for a fire report; that the first plaintiff did not pay the freight charges for the salvaged goods sent back to Madras, which he agreed to pay; that Ex. D10 is the copy of the bill for the freight charges, and number of communications making demand for the payment of the freight charges were also sent to the first plaintiff, but without avail; that neither the defendants nor their servants were negligent on their part either in delivering the goods at Delhi or when they were kept safe; that the first plaintiff though has joined the second plaintiff in making the claim, has not examined himself; that the defendants have chosen to examine the first plaintiff as DW3 from whose evidence it would be clear that only on his request, the consigned goods could not be delivered, and only on the request, property was kept in the warehouse of the second defendant; that the evidence of DW4 Mr.Agarwal, a close relative of the first plaintiff would clearly corroborate the evidence of DW2 to the effect that the goods were kept by the second defendant in their warehouse at Sanjai Gandhi Transport Nagar only on the request and at the risk of the first plaintiff; that the liability of the common carrier viz. the defendants ceased when they actually tendered delivery at the doors, as agreed upon between the parties; that since the first plaintiff did not take delivery of the same for lack of space and made a request to the second defendant to keep the same in their warehouse, it was made only at the risk of the first plaintiff; that once such a special agreement was entered into between the parties, then it is for the first plaintiff to bear the loss occasioned by the fire accident, which was not due to the negligence or carelessness on the part of the second defendant, but on account of the factors beyond their control; that during that period, the relationship between the parties is one of bailor and bailee; that the defendants have acted as an ordinary prudent human being, and when this test is applied, the defendants could not be found liable for the loss occasioned by destruction of the consignments due to the fire accident, and in view of all the above, the plaintiffs' claim has got to be dismissed. In support of his contentions, the learned counsel relied on the following decisions; 1) 1993 ACJ 1269; 2) AIR 1992 MADRAS 324; 3) AIR 1 994 ANDHRA PRADESH 24; 4) AIR 1959 MADHYA PRADESH 351; 5) AIR 1965 RAJASTHAN 200; 6) AIR 1962 MADRAS 44; and 7) AIR 1955 ASSAM 65. Added further the learned counsel that the plaintiffs have filed the suit against the defendants without obtaining leave to sue; that the first defendant is having its office at Madras, while the second defendant is having its office at Delhi, and under such circumstances, the plaintiffs should have obtained the leave to sue, which is mandatory, and since the plaintiffs have not obtained the leave, the suit itself is not maintainable and has got to be dismissed; that the plaintiffs have not proved its claim; that apart from that, they are liable to pay the counter claim made by the defendants towards the freight charges, and hence a decree has got to be passed in favour of the defendants in respect of the counter claim.
8. The facts that are admitted by the parties can shortly be stated as follows:
The first plaintiff who imported 2 consignments of synthetic lining each measuring 80000 meters packed in 100 cartons under two invoices dated 9.3.95 under Exs.P2 and P3 discharged the same at the Port of Madras for clearance. The consignments were insured with the second plaintiff, and a copy of the insurance policy is marked as Ex.P1. The clearing and forwarding agents of the first plaintiff cleared the said cargo and entrusted the consignments to the first defendant, a common carrier on 21.4.95 for transportation by road and give door delivery at New Delhi on two different G.C. notes. The first defendant issued two consignment notes for each 100 cartons. A sum of Rs.16,500/- was pre paid towards freight under each of the notes for each consignment. Accordingly, the goods were carried through the second defendant for delivery at New Delhi. The consignments were not delivered at Delhi. The consignments were kept by the second defendant in their godown at Sanjay Gandhi Transport Nagar. While the consignments were kept so in the said warehouse, they were destroyed by a fire accident on 29.4.95 due to electric short circuit and were almost burnt and lost its value. An information was given to the Station House Officer of the concerned Fire Station on 30.4.95 as found under Ex.D8. A complaint was also preferred on the said date to the police authorities at Delhi regarding the fire accident. The second defendant confirming the destruction of the cargo issued Exs.P4 and P5 certificates dated 15.5.95. Pursuant to the same, the second plaintiff indemnified the first plaintiff about the loss. Since the loss was in excess of Rs.20,000/-, the second plaintiff insurance company appointed M/s. A.K.Govil and Associates, an independent surveyor under the relevant provisions of the Insurance Act. The surveyor after making survey, issued Ex.P6 and P7 survey reports dated 17.5.95 wherein the loss of the consignments was estimated at Rs.26,57,544/-. The surveyor called for the quotation in respect of the damaged consignments. The second plaintiff has given to the surveyor the fees claimed by them under Exs.P8 and P9 bills dated 12.5.95. The first plaintiff issued two notices to the defendant under Exs.P10 and P11 dated 15.6.95 along with their acknowledgement cards. As per the assessment of the surveyor, the second plaintiff insurance company has paid the insurance amount as per the policy and survey report. The vo ucher for the said payment is marked as Ex.P12 dated 11.10.95. The first plaintiff has executed letters of subrogation and special power of attorney as found under Exs.P13 and P15 in favour of the second plaintiff. The agent of the second plaintiff issued a communication under Ex.P14 dated 14.11.19 96 to the defendants demanding payment. The second defendant made a request under Ex.D9 dated 15.5.95 to the Delhi Fire Service Department for a fire report.
9. As seen above, the first plaintiff the owner of the two consignments and the second plaintiff with whom those consignments were insured, have jointly filed this civil action against the defendants who are the common carriers. The entrustment of the two consignments of Synthetic lining each measuring 80000 meters packed in 100 cartons covered under two invoices under Exs.P2 and P3 dated 9.3.95 by the first plaintiff's clearing and forwarding agent to the first defendant a common carrier for transportation by road from Madras to Delhi and to make door delivery at the given address at Delhi and the repayment of the freight were not disputed by the defendants. Nowhere the defendants have questioned the good condition of the consignments carried by them. The non-delivery of the consignments so entrusted with the carriers at Delhi is well admitted by the defendants. It is quite evident from Ex.P1 an open policy that the suit consignments were insured by the first plaintiff with the second plaintiff insurance company. Relying on Exs.P1 to P3, it is contended by the defendants' side that the property insured with the second plaintiff was not the property that was transported; and that Ex.P1 reads that the property that was insured was leather garments and its allied products, etc., while the properties under Exs.P2 and P3 were described as 80000 meters of synthetic lining. This contention of the defendants' side cannot be countenanced for more reasons than one. As could be well seen from Ex.P1 insurance policy that what was insured was not only leather garments, but also its allied products. D.W.1 has well admitted that they issued Exs.P4 and P5 certificates. Ex.P4 reads: "This is to certify that hundred (100) cartoons of synthetic lining (18000 mts) as per B.E.No.17583 dt.17/4/95 invoice No.J 25 F.O. 31 ABO dt. 9/3/95 against our LR.NO.7158 dt.21/4/95 were transported from Madras to Delhi and the goods were received in our godown at B.G.348 Sanjay Gandhi Transport Nagar, New Delhi on 26/4/95 in good condition."
"This is to certify that hundred (100) cartoons of synthetic lining (18000 mts) as per B.E.No.17566 dt.17/4/95 invoice No.J 25 F.O. 31 ACO dt. 9/3/95 against our LR.NO.7157 dt.21/4/95 were transported from Madras to Delhi and the goods were received
in our godown at B.G.348 Sanjay Gandhi Transport Nagar, New Delhi on 26/4/95 in good condition."
Thus, the two consignments which were entrusted, were noted with particular reference as to the shippers' invoice as well as the bill of entry, which were filed with the Customs Authority for clearance of the imported cargo. Having admitted as to the identity of the consignments with reference to the invoice number and bill of entry and the lorry receipt numbers in Exs.P4 and P5, the defendants cannot now be permitted to question the identity of the consignments.
10. The prime defence as could be seen from the averments in the written statement and the evidence adduced through the defence witnesses is that though the consignments were entrusted with the first defendant for transportation from Madras to Delhi on door delivery basis, the consignments could not be delivered, since the first plaintiff did not take delivery at the doors when the goods were tendered, but the first plaintiff requested the storage in the godown of the carrier for want of space at their disposal, and thus the second defendant was constrained to keep them in their godown, but at the risk of the first plaintiff; that during that storage period, a fire accident occurred, which was not on account of the negligence of the defendants, but on account of the factors beyond their control; that during that period, though the consignments were in the custody of the defendants, they were at the risk of the first plaintiff, and hence, the defendants were not under absolute liability under the provisions of the Carriers Act. This defence put forth by the defendants, in view of the evidence both oral and documentary, cannot be sustained. Concededly, as per the agreement between the consignor and the consignee, the consignments should be made door delivery, but the same was not done so. It is contended by the defendants' side that in stead of taking delivery at the doors when the consignments were tendered, the first plaintiff instructed storage of the consignments in the godown of the second defendant due to lack of space. While the defendants come forward to put forth a defence stating that though there was an agreement for door delivery at the time of the entrustment of the consignments, there was a subsequent special agreement between the parties to keep the consignments by the second defendant, and since it was only at the risk of the first plaintiff, the defendants cannot be fastened with the liability for the loss or damage caused to the goods by the fire accident that took place during that period, it is for the defendants to specifically plead and strictly prove the same. Paragraph 6 of the written statement reads as follows: "The goods were loaded for transportation to Delhi and before the goods could reach Delhi, the first plaintiff has requested the first defendant not to unload the goods at their premises as originally instructed by them since the first plaintiff did not have sufficient space to unload the goods which were consigned through the first defendant."
Contrary to the above, D.W.1 has deposed that the first plaintiff made a request only to the second defendant to retain the goods, because they did not have sufficient space to store the goods with them. It is pertinent to note that DW1 has admitted that there is nothing in writing to show that the first plaintiff had made any request to the second defendant; and that after 26.4.95 and prior to the filing of the written statement, they have not confirmed with the second defendant as to the request of the first plaintiff to retain the goods.
11. According to DW2, Maksood Ahmad, the godown incharge-cum-truck maintenance incharge, he got a phone call from the truck driver Balbeer Singh in the morning at about 11.30 A.M.; that he instructed the lorry driver to phone to him on reaching the party's address; that after reaching the address given in the lorry receipt, the truck driver again phoned him up and told him that there was no name board containing the name of the party written on the lorry receipt; that in the said address, a board named 'Grover Property' was found; that he asked the driver to remain the same place and told that he would contact him after some time; that he contacted the main branch office at Sathar Bazaar; that the officials therein gave him a telephone number; that when he contacted the said telephone number, one Mr.Agarwal came on the line and told him to retain the goods where they were standing at that time and would give him further instructions after some time; that till 4.00 P.M. the lorry with the load was waiting at the same address; that at 4.00 P.M., the truck driver once again phoned him up; that once again the witness contacted Mr.Agarwal and informed him that their truck driver was calling him up frequently complaining that the police personnel were pestering him; that the witness further told Mr.Agarwal that he was going to the said address where the trucks were standing with the load and asked Mr.Agarwal to reach the said address; that when the witness reached the said place, Mr.Agarwal also reached and told him that the goods in the truck could not be unloaded because he is still talking to the parties to whom he wished to sell the said goods; and that he cannot unload the goods unless and unless his talks with the prospective buyers fructified and requested the witness to unload the goods at the Sathar Bazaar godown. This part of the evidence of D.W.2 is inconsistent to the above pleadings and the testimony of D.W.1. It remains to be stated that the said Agarwal was examined on commission as D.W.4 at New Delhi, who has pleaded no knowledge of the alleged instructions as deposed by D.W.2. On the contrary, D.W.4 has stated that he came to know about the consignments only after the fire accident. It has to be noted that the first plaintiff examined as D.W.3 at the instance of the defendants has denied all the above versions put forth by the defendants and has stated that he gave instructions to the first defendant to take the consignments to the address given by him; and that the second defendant's drivers on reaching Delhi did not contact Mr.Agarwal in the address given by him. Hence all the above would go to show that the version of the defendants that the instructions were given by the first plaintiff or DW4 Agarwal for storage of the goods in the godown of the second defendant at Delhi is a false one introduced by the defendants to escape from their liability.
12. The learned counsel appearing for the defendants would submit that D.W.4 is a close relative of the first plaintiff, and hence he has given evidence in support of the plaintiffs; that the office premises of the first plaintiff was only with an area of about 100 sq.ft., and this would prove that the consignments of two truck loads cannot be placed there; and thus. the first plaintiff has also made a request to keep the consignments in the custody of the second defendant. In the absence of any documentary or acceptable oral evidence, the contention of the defendants' side that they could not deliver the goods at the doors, but were to keep them under their custody on the instructions and at the risk of the first plaintiff cannot be accepted. The court is of the considered view that the defendants have not proved that the consignments were in their custody only on the instructions and at the risk of the first plaintiff during the period, when the fire accident occurred.
13. The common carriers' duties and liabilities begin, when they accept the goods for carriage, and their liability ends only when there has been delivery actual or constructive. Where a common carrier is not bound to deliver at the consignees house, his liability ceases when he brought the goods to the station or the depot of destination and has given the consignee a notice of arrival, and the consignee has to remove the goods within a reasonable time, depending upon the circumstances of each case. In a given case where the common carrier has undertaken to deliver the consignments at the doors of the consignor, his risk ceases only when he make the delivery actual or constructive. In the instant case, the defendants have not proved that they attempted to deliver the consignments at the doors of the first plaintiff or the first plaintiff did not take delivery or the first plaintiff made any request to keep the consignments by the carriers for want of space, and hence, the defendants were constrained to keep the consignments in their warehouse and that too at the risk of the first plaintiff. In the absence of any proof to that effect, it has to be necessarily held that the defendants were in the custody of the consignments in their capacity as a common carrier, during which period the consignments were destroyed due to fire accident. 14. Admittedly, there was a fire accident at the godown of the second defendant at Sanjay Gandhi Transport Nagar on 29.4.95, and the same was reported to Fire Station and to the concerned police also. There has been extensive damage to the premises and the goods which were kept in the said warehouse. The fact that the consignments of the first plaintiff entrusted to the defendants were destroyed by the fire accident is well evident from the testimony of the witnesses and Exs.P6 and P7 survey reports of the surveyor, who investigated into the case, surveyed and estimated the loss. It is contended by the defendants' side that they are not liable, since the fire accident has occurred not due to their negligence, but despite their best efforts and on account of the factors beyond their control. The court is of the considered view that the defendants cannot escape from the liability by putting forth such a defence, in view of the settled proposition of law. Alderson B defines negligence as follows:
"Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do." Lord Wright observes as follows:
"In strict legal analysis, negligence means more than the heedless or careless conduct whether in omission or commission: it properly connotes the complex concept of duty, breach and damages thereby suffered by the person to whom the duty was owing."
Under English Law, while the carriers are entitled to include a clause exempting any liability for their negligence, Indian Law is otherwise. A statutory burden rests on the carrier to disprove the negligence, once the owner of the consignment is able to establish the loss or damage to the goods. In an action for the loss, damage or nondelivery of goods entrusted to the common carrier, it is not necessary for the plaintiff to prove that such loss, damage or non-delivery was due to the negligence of the carrier or his men. The law presumes that the loss of goods is prima facie evidence of negligence of the carrier, and hence, if the carrier wishes to exempt from the liability, he must negative such a prima facie evidence. That apart, he should prove that the loss must have occasioned otherwise than by his negligence. The degree of proof what is expected of the common carrier should be very strict under such a situation for two reasons. Firstly, it would be more or less impossible for the plaintiff to bring home the negligence to the carrier. Secondly, it would always be easier for the common carrier to examine his servants as witnesses and to prove prima facie that all the effective measures were taken in order to protect the goods in the usual way. In a case of fire accident as one in the instant case, the fire must have been caused by some act or the neglect of the defendants, since a fire is not an ordinary event to be set down as an usual accident of transport. When it appears from the available evidence that no one else was responsible for the fire, it has to be taken that the defendants were responsible. The following decisions rendered by the Apex Court and the Division Bench of Andhra Pradesh High Court are applicable to the present facts of the case. The Apex Court has held in the decision reported in 2001-1-L. W. 756 (NATH BROS. EXIM INTERNATIONAL LTD. VS. BEST ROADWAYS LTD. as follows:
"Section 6 enables the common carrier to limit his liability by a special contract. But the special contract will not absolve the carrier if the damage or loss to the goods, entrusted to him, has been caused by his own negligence or criminal act or that of his agents or servants. In that situation, the carrier would be liable for the damage to or loss or non-delivery of goods. In this situation, if a suit is filed for recovery of damages, the burden of proof will not be on the owner or the plaintiff to show that the loss or damage was caused owing to the negligence or criminal act of the carrier as provided by Section 9. The carrier can escape his liability only if it is established that the loss or damage was due to an act of God or enemies of the State (or the enemies of the King, a phrase used by the Privy Council). The liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants."
The Division Bench of the Andhra Pradesh High Court has held in the decision reported in 2001 ACJ 40 (PRAKASH ROAD LINES (P) LTD. AND ANOTHER VS. H.M.T. BEARING LTD. thus:
"Carriers Act, 1865, Section 9 - Common carrier - Liability of carrier - Non-delivery of goods - Goods entrusted to carrier for transportation were damaged in fire in the godown of the carrier - Whether the consignor is entitled to recover loss or damage that occurred due to non-delivery of goods entrusted by him to the carrier and he need not establish that loss or damage or non-delivery occurred due to negligence on the part of the carrier, his servants or agents - Held: yes.
Carriers Act, 1865, Section 9 - Common carrier - Liability of carrier - Goods entrusted to carrier for transportation were destroyed in fire in the godown of the carrier at the destination station - Contention that goods were safely transported to the destination station but the consignor/consignee failed to collect the same within a reasonable period - No distinction for liability under the Act in respect of goods that are lost/damaged in transit or while they are in the custody of the carrier before delivery after the goods reach the destination - Whether common carrier can escape its liability on the ground that the goods were not collected within a reasonable time - Held: no. Carriers Act, 1865, section 9 - Common carrier - Negligence - Carrier contended that there was no negligence on its part as fire broke out accidentally during the night and goods were damaged in the godown for which it is not responsible - Whether the common carrier is exempted from its liability to pay damages - Held: no; proof of negligence is not sine qua non for claiming damages by the consignor in case of loss or damage to the goods transported by a carrier."
In view of the decisions cited supra, all the contentions put forth by the defendants' side have got to be rejected as devoid of merits.
15. So far as the quantum of loss is concerned, D.W.1 the Proprietor of M/s.Green Roadlines, Madras has categorically admitted that Exs. P4 and P5 were the certificates issued by them to the first plaintiff. According to D.W.1, those certificates under Exs.P4 and P5 were issued by the second defendant only after discussions with him, and the second defendant was not in the habit of giving false certificates, and all the certificates issued by them are factual, and the second defendant was not in the habit of issuing false certificates to facilitate the false claim before the insurance company, and therefore, the contents found in Exs.P4 and P5 are true. Hence, the contention of the defendants' side that the said certificates were given in order to help the first plaintiff to claim the insurance amount cannot be countenanced. A perusal of Exs.P4 and P5 would reveal that the entire consignments were destroyed by fire and water on 29.4.95 at their godown due to fire accident. At the instance of the second plaintiff, an independent surveyor M/s.A.K.Govil and Associates made an investigation of the fire incident, estimated the damage and filed the reports marked as Exs.P6 and P7. D.W.1 has admitted that the goods got burnt, and the surveyor came and assessed the loss; and that Exs.P6 and P7 are the survey reports along with the photographs filed by the plaintiffs, and they are correct. The surveyor has assessed the value of the salvage and has also given credit for such salvage value at Rs.58 ,725.85 in respect of each consignment and has arrived at a loss of Rs.13,28,772/- under each consignment. The defendants have neither challenged the correctness of the contents of Exs.P6 and P7 survey reports nor the figure arrived at by the surveyor in respect of the loss under each consignment nor the salvage value noted therein. Though the second defendant carrier has certified the total loss of the consignments by fire and water, the plaintiffs have given credit to the salvage value and have made the actual loss at Rs.13,28,772/- under each consignment, which is fair and reasonable.
16. By adducing the documentary evidence under Ex.P12 discharge voucher, the second plaintiff has proved the payment of indemnity to the first plaintiff in respect of the loss sustained by the first plaintiff and has also proved its authority to make the claim against the defendants by Exs.P13 and P15 letters of subrogation cum special power of attorney executed by the first plaintiff in favour of the second plaintiff.
17. In view of the admission made by the defendants in the written statement that the notices as to the loss dated 15.6.95 issued by the first plaintiff to the defendants which were marked as Exs.P10 and P1 1, the contention of the defendants' side that a notice as contemplated under S.10 of the Carriers Act 1865 was not issued, and hence the suit is not maintainable has to be rejected.
18. The learned counsel for the defendants submitted that the plaintiffs should have obtained leave to sue before filing the suit, but they have not obtained, and in view of the same, the suit has got to be dismissed. The court is unable to agree with the said contention. It is an admitted position that the consignments were entrusted to the first plaintiff for transportation from Madras to Delhi. The first defendant is shown as M/s.Green Roadlines, (MDS.), and the second defendant is shown as M/s.Green Roadlines (Regd.). D.W.1 has admitted that he is the Proprietor of M/s.Green Roadlines, Madras and the second defendant at Delhi is the branch owned by his father and the elder brother. Thus, it would be clear that the second defendant is only a branch of the first defendant. It is pertinent to note that both the defendants have contested the suit by filing a single written statement. Nowhere they have stated that they are different legal entities. When one is functioning in Madras, the other is functioning at Delhi. As stated above, from the evidence of DW1, it would be quite evident that the second defendant is a Delhi branch of the first defendant at Madras. It is pertinent to point out that in the instant suit, both the defendants have jointly made a counter claim against the first plaintiff. DW1 has given evidence for both the defendants. Having submitted to the jurisdiction of this court and participated in the trial proceedings, the defendants cannot now be permitted to say that leave to sue was not obtained by the plaintiffs. Under such circumstances, the court is of the view that no separate leave to sue is necessary.
19. So far as the counter claim made by the defendants are concerned, the court is of the view that the claim is not sustainable in law. According to D.W.1, the first plaintiff did not pay the freight charges for the salvaged goods which were sent from Delhi to Madras, and Ex.P10 is the copy of the bill for the freight charges dated 17.12.96 , and the first plaintiff did not pay the freight charges even subsequently, and Exs.D11 and D12 are the copies of the letters dated 17.12 .96 and 14.7.97 respectively sent to the first plaintiff claiming freight charges. It has to be noted that the defendants have not produced any documentary evidence to establish the fact that the salvaged goods were carried from Delhi to Madras. No material is available to indicate that there was any consensus between the defendants and the first plaintiff in respect of freight charges for transporting the salvaged goods from Delhi to Madras. On the contrary, the first plaintiff examined as D.W.3 has deposed that the defendants orally agreed to send the damaged goods from New Delhi to Madras without any freight charges. In the absence of any agreement or evidence to hold that the first plaintiff agreed to pay the freight charges for transporting the salvaged goods from Delhi to Madras, it cannot be held that the first plaintiff is liable to meet the counter claim. Hence, the counter claim has to be rejected. For the reasons stated and discussions made above, it has to be held that the plaintiffs are entitled to the relief as asked for; and that the defendants are not entitled to the counter claim made by them. All the above issues are answered accordingly.
20. In the result, this suit is decreed for a sum of Rs.26,83,125.50 with subsequent interest at 18 per annum from the date of plaint till realisation and with costs. The counter claim of the defendants is dismissed without costs.
List of Witnesses:
1. P.W.1 Gurumurthy
2. D.W.1 Javed Iqbal Chowdhary
3. D.W.2 Maksood Ahmed
4. D.W.3 Narendra Harlalka
5. D.W.4 Agarwal
List of Documents:
1. Ex.P1 Copy of the insurance policy 2. Ex.P2 9.3.95 Invoice
3. Ex.P3 9.3.95 Invoice
4. Ex.P4 15.5.95 Certificate of damage
5. Ex.P5 15.5.95 Certificate of damage
6. Ex.P6 17.5.95 Survey report
7. Ex.P7 17.5.95 Survey report
8. Ex.P8 12.5.95 Bill
9. Ex.P9 12.5.95 Bill
10. Ex.P10 15.6.95 Notice with acknowledgement due card 11. Ex.P11 15.6.95 Notice with acknowledgement due card 12. Ex.P12 11.10.95 Discharge voucher
13. Ex.P13 25.3.98 Letter of Subrogation
14. Ex.P14 14.11.96 Claim letter
15. Ex.P15 5.11.96 Letter of subrogation
16. Ex.D1 29.7.01 Notice copy
17. Ex.D2 Copy of letter issued by the Delhi fire service
18. Ex.D3 3.8.01 Letter
19. Ex.D4 21.4.95 Copy of challan
20. Ex.D5 21.4.95 Copy of challan
21. Ex.D6 17.5.95 Copy of Haulage contract
22. Ex.D7 19.5.95 Copy of Haulage contract
23. Ex.D8 30.4.95 Letter
24. Ex.D9 15.5.95 Copy of letter of requisition 25. Ex.D10 17.12.96 Copy of bill
27. Ex.D12 14.7.97 Copy of letter
28. Ex.D13 26.4.95 Unloading report
29. Ex.D14 Copy of the report given by the Police Officer
30. Ex.D15 Fax copy
31. Ex.D16 Copy of the card
32. Ex.D17 15.5.95 Letter
33. Ex.D18 15.5.95 Letter
C.S.No.708 of 1998
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