AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal is filed against the judgment and decree dated 24.12.1986 and made in O.S.No.167 of 1983 on the Court of the Subordinate
Judge at Madurai. The second defendant is the appellant herein.
The case of the plaintiff is concisely narrated below:-
The suit is one for a recovery of a sum of Rs.50,000 being the value of the damaged consignment with subsequent interest at 12% per annum. The
plaintiff entrusted 45 bags of cotton yarn on 8.5.1980 to the second defendant-appellant for safe carriage from Madurai to Bombay intended to be
delivered at their sales depot at Bombay plaintiff who booked the consignment also insured the consignment with the second plaintiff under the
marine insurance open policy under policy No.125000/3/1/00470/79 to compensate the first plaintiff against any loss or damage caused to the
consignment during transit under Ex.A.1 and as such, the plaintiff is insured and the second plaintiff is the insurer. On 15.5.1980, the first plaintiff
has received a letter which is Ex.A.6 from the first defendant stating that they have received the consignment containing 45 bags of yarn from
Savani Transport Limited and the same is kept on account of the second defendant sand further advised the plaintiff to take delivery of the above
consignment. Pursuant to the said letter, the sales depot of the first plaintiff at Bhiwandi has taken delivery of 20 bags of cotton yarn out of 45 bags
and the remaining bags were lying in the godown of the first defendant. Thereafter, the first plaintiffs came to know that there was a fire accident on
18.5.1980 and the consignments which were lying in the first defendants''s godown was burnt and that the damage and fire accident occurred only
due to the negligence and mis-conduct of the first defendant, who is the agent of the second defendant. Further, under Ex.A.7 the first plaintiff
issued a letter to the first defendant requesting to issue a certain certificate to make a claim against the insurance company. Having received the
letter, the first defendant has issued a reply on 11.6.1980 requesting certain statements under Ex.,A.11. Since damage has been caused to the
consignment, the first plaintiff has preferred a claim to the second plaintiff as per the contract of insurance and received the claim from the second
plaintiff under Exs.A.15 and A.12, the second plaintiff has arranged for survey and the surveyor conducted enquiry and furnished a report on
29.3.1982 and the damage was arrived at Rs.50,000. The second plaintiff has also settled the claim a interim settlement at Rs.37,500 and paid the
part payment to the, first plaintiff. To that effect, the second plaintiff has executed a letter of subrogation and special power of attorney dated
17.2.1985 to the first plaintiff. The plaintiff on 11.10.1980 under Ex.A.9 requested the first defendant to furnish certificate to the effect that out of
the 45 bags of yarn which the first defendant kept in the account of M/s Savani Transport Private Limited, only 20 bags were delivered on
16.5.1980 and the balance 25 bags were lying in the godown of the first defendant and destroyed in fire on 18.5.1980. For that letter, the first
defendant replied that they were unable to give any details of delivery except acknowledging the fact that the yarn was still in the stock on
18.5.1980 was destroyed in fire under Ex.A.10. Since the value of the damaged consignment is Rs.50,000, the first plaintiff is entitled to recover
the same from the defendants. It is the case of the plaintiff that the first defendant is an agent of the second defendant and who has acted for and on
behalf of the second defendant and in pursuance of the contract of agency, the first defendant has kept the consignment in their godown under the
account of the second defendant. Therefore, both the defendants are liable to ;pay the value of the damaged consignments of Rs.50,000. Inspite of
repeated demands and notices issued to the agent of the second defendants, the defendant has not chosen to settle the claim. As per the contract
of carriage between the first plaintiff and the second defendant, the defendants are liable to deliver the consignment safely without any damage or
shortage whatsoever. Further, the defendants are liable to settle the claim as that of the insurer to the goods as per the Carriers Act Therefore,
under the circumstances, the defendants are liable for the suit claim.
The second defendant Savani Transport Private Limited filed written statement and contended inter alia that the suit is not maintainable in view
of the non-compliance with section 10 of the Carriers Act 1865. The said consignment was to be delivered at Bombay to the first defendant
therein as the address of delivery office as recorded in the consignment note No.2438 dated 8.5.1980 is that of the 1st defendant and the
unloading at Bhiwandi was to be effected by the consignee. These defendants gave delivery to Rajasthan Warehousing Corporation the first
defendant at Bhiwandi. That all the 45 bags were transported from Madurai and delivered the same in the safe condition at the place of delivery
viz., at the door of the first defendant at Bhiwandi. The first defendant obtained the delivery on production of consignee copy of the lorry receipt.
The second defendant have acknowledgement and obtained the receipt from the first defendant for the said forty five bags n tact. Since the
delivery has been effected to the first defendant as directed by the first plaintiff-consignor, the first defendant was the agent of the first plaintiff who
took delivery in production of the consignee copy issued to the first plaintiff and the contract was completed on the part of the defendant by
making the delivery. That the first defendant Rajasthan Warehousing Corporation was the Warehousing Agent of the first plaintiff and has taken
delivery from the second defendant on behalf of the first plaintiff to whom the first plaintiff has sent the consignee''s copy of the lorry receipt.
Further, the fact that the first plaintiff took delivery of part of the consignment from the 1st defendant proves beyond doubt that the first defendant
is the agent of the first plaintiff and further denied that the first defendant is the agent of the second defendant. That the second defendant is not
concerned with any claim notice issued by the first plaintiff to the first defendant or any demand made at the instance of the first plaintiff. Further, it
is stated that the second defendant are not concerned with any settlement of claim of the first plaintiff with the second plaintiff or the reports of the
surveyor of the second plaintiff or as to the assessment of the damage. The suit filed by both the plaintiffs is therefore bad in law and not
maintainable and it was specifically denied that the first defendant was the agent of the second defendant. Since delivery has been effected to the
first defendant on their production of the consignee copy of the lorry receipt given to the first plaintiff, it is obvious that the first defendant is the
warehousing agent of the first plaintiff. Since the goods were not damaged when it was in the possession of second defendant, the question of
settlement of any alleged claim did not arise.
On the above said pleadings, the trial court framed the following issues:-
Is the suit is bad in law for not issuing notice u/s 10 of the Carriers Act?
Is the first defendant the agent of the second defendant the agent of the second defendant?
Is the claim for the loss of goods is true and the claim made by the second plaintiff is correct?
Is there any cause of action against the second defendant, is he a mis-joinder of party to the proceedings and can the claim be made against the
second defendant for the loss?
Has this Court jurisdiction to entertain the suit?
Is the second defendant liable to compensate the loss?
To what relief are the plaintiffs entitled to?
The trial court after considering the documentary and oral evidence has held that the first defendant is the agent of the second defendant and the
notice issued to the first defendant is sufficient compliance of Section 10 of the Carriers Act and further held that the loss as claimed is really
sustained by the 1st plaintiff and the second defendant is a necessary party and the plaintiff is having cause of action to institute a suit against the
second defendant and the trial court is having jurisdiction and ultimately passed a decree against defendants No.1 and 2 for a sum of Rs.50,000
with interest at the rate of 6% per annum from the date of filing of the suit. Before the trial court, the first defendant remained ex parte. Aggrieved
against the same, the second defendant filed the above appeal.
The first defendant has been shown as third respondent in this appeal. Though originally notice was directed to be issued to the third
respondent-first defendant, subsequently, notice to the third respondent was dispensed with by order dated 22.6.1992 at the instance of UK
appellant herein.
The learned counsel appearing for the appellant assailed the Order of the trial court that (1) the suit as instituted by the plaintiff is bad in law
because of the non-issuance of notice u/s 10 of the Carriers Act, (2) The suit is barred by limitation and (3) In the facts and circumstances of the
case, the judgment and decree of the trial court are unsustainable in law and fact.
The learned counsel for the appellant elaborately argued and took the through the documents exhibited before the trial court to drive home the
point that the first defendant is note the agent of the second defendant and only the agent of the first plaintiff who produced the consignee copy of
the consignment not and obtained delivery. To sustain this contention, the learned counsel strongly relied on Ex.B.1 which is a consignment note
dated 8.5.1980. He drew my attention to each and every material particulars contained in Ex.B.1 the consignment note. Strong reliance is placed
on the delivery instructions contained in the foot of the Ex.A.1. At the foot of the consignment note, it is printed as ""address for delivery office"",
wherein it has been written that ""Rajasthan Warehousing Corporation, Jagani Compound, Bombay-Agra Road, Villai, Kamatghar, Bhiwandi,
Phone No.7772"" and in the reverse side of the said consignment note, there is an endorsement to the effect that 45 bags of yarn has been received
by the Rajasthan Warehousing Corporation.
It is the admitted case that the second defendant is the permanent carriers of the first plaintiff and they are transporting the goods of the 1st
plaintiff to so many places on so many occasions as and when requested. It is not an isolated case where the goods has been transported by the
second defendant on behalf of the first plaintiff. Ex.B-1 the consignment note has been prepares by the Booking clerk of the second defendant In
the consignment note as against Consignor''s name and address, M/s Rukmani Mills Ltd, Silaiman P.O., Madurai District has been written as the
consignor. As against the column Consignee''s Bank''s name an address, Rukmani Mills Ltd, Bombay Sales Depot, Bhiwandi has been written.
The consignment note also shows that the goods are consigned from Madurai (B) to Bhiwandi. This consignment note has not been signed by the
first plaintiff or by anybody on behalf of the 1st plaintiff. When the consignee''s name has been categorically stated as Rukmani Mills Limited,
Bombay Sales Depot, Bhiwandi, there is no necessity for the plaintiff to direct the second defendant to deliver the goods to Rajasthan
Warehousing Corporation. In such circumstances, it is to be construed that the delivery instructions given at the foot of the consignment note is only
the inter arrangement of the second defendant and the instruction is to the driver of the vehicle to deliver the goods at the address noted as address
for delivery. This has been further strengthened by Ex.A.6 which says that the first defendant has received 45 bags of yam from M/s Savani
Transport Private Limited on 8.5.1980 and kept the same in the account of Savani Transport Limited and further requested Rukmani Mills
Bombay Sales Depot to take delivery of the same.
Ex.A.4 is the excise gate pass. Ex.A.5 is the form-20 issued by the Sales Tax Department. In the Excise Gate Pass also, it has been stated that
the consignee is M/s Rukmani Mills Limited Bombay Sales Depot. In Ex.A.5 the form -20 also, it has been stated that the consignee is Rukmani
Mills Limited, Bombay Sales Depot.
P.W.2 has also denied the suggestion in his evidence that the first defendant is the agent of the first plaintiff and also further denied that the
goods has been delivered to the first defendant only under the instructions of the first plaintiff. He further denied that the consignee copy of the lorry
receipt has been sent to the first defendant by the first plaintiff. As stated already, since the second defendant is the regular transporter for the first
plaintiff and he has been transporting the goods of the first plaintiff to various places on number of occasions and as such, the consignee copies
have also been sent through the lorry as stated by P.W.2. There is no proof on behalf of the second defendant that the consignee copy has been
sent to the first defendant by the first plaintiff. Further, it has been accepted by D.W.1 the clerk of the second defendant that the first plaintiff did
not give anything in writing directing the carrier to deliver the goods to the first defendant The endorsement on the reverse side of the consignment
note by the Rajasthan Warehousing Corporation is only to the effect to the receipt of the 45 bags of yarn and nothing more.
The entire controversy as to whether the 1st defendant is the agent of the 2nd defendant appellant or the agent of the 1st plaintiff would have
been easily resolved if the 1st defendant Rajasthan Warehousing Corporation entered appearance in the suit and deposed about his role in the
transaction in question. But for the reasons best known to it, it remained ex parte though notice was duly served. The 2nd defendant who delivered
the goods to the 1st defendant also did not take any interest to examine any one on behalf of the 1st defendant. However, the document ExA.6
which has been written immediately on receipt of the goods by the 1st defendant to the 1st plaintiff clinches the issue which runs as follows:-
We have received 45 (forty-five) bags of yarn from M/s. Savani Transport Private Limited today. (Consignment No.24381 dated 8.5.1980 and
have kept the same in their account. We have been advised to give delivery to your which you please note"" Italics Supplied)
There are two sentence which clinches the issue. One is that the consignment has been kept at the godown at Rajasthan Warehousing Corporation
on account of M/s. Savant Transport Private Limited"". Further, the letter proceeds that ""we have been advised to give delivery to you which you
please note"" which could mean that the Savani Transport Private Limited delivered the goods to the 1st defendant and advised the Rajasthan
Warehousing Corporation to give delivery of the consignment to Rukmani Mills, Bombay Sales Depot, Bombay. If the 1st defendant is the agent
of the 1st plaintiff, the wording of Ex.A.6 would not be as extracted above. In such circumstances, it is clear that the Rajasthan Warehousing
Corporation is only an agent of the second defendant. Hence, the finding of the trial court to that effect is correct and the same is hereby
confirmed.
The learned counsel appearing for the appellant relied on Sections 91, 92 and 94 of the Evidence Act and argued that when the contract is
reduced in writing, no oral evidence can be retted on for the contrary. The contention is not applicable for the present case because Ex.B.1 has
been prepared by the Clerk of the second defendant and it has not been signed by or on behalf of the first plaintiff and as already stated, the
address for delivery office as incorporated in the lorry receipt is only an instruction to the driver from the Transporter to deliver the goods at the
stated address. On the other hand, the Consignee''s name has been categorically stated in the lorry receipt as Rukmani Mills, Bombay Sales
Depot, Bhiwandi.
The learned counsel for the appellant has argued that the suit is bad in law for non-issuance of notice u/s 10 of the Carriers Act. The object of
issuing notice u/s 10 of the Carrier Act is obviously to give an opportunity to the Carrier to make amends for the occurrence of the loss and settle
the claim of the consignor or owner of the goods. It is true that a notice u/s 10 is mandatory. In das regard, it is pertinent to note that the letter
dated 6.6.1980 exhibited as ExA.7 is issued by the first plaintiff to the first defendant wherein it has been informed that the Certificate requested
for in the letter is required for submitting a claim for the loss sustained to the Insurance Company. Ex.A.9 dated 11.10.1980 is also another letter
issued by the first plaintiff to the first defendant Since the first defendant is the agent of the second defendant and the office of the first plaintiff and
that of the first defendant are in one and the same place at Bhiwandi, the first plaintiff gave notice under Exs.A.7 and A.9 to the first defendant and
that notice is deemed to be issued u/s 10 of the Act to the second defendant also, is the contention of the counsel for the respondent herein. For
the said proposition, she has relied on a decision in India General Navigation and Ry. Co. Ltd. Vs. Girdharilal Gobardhone Das and Others, . In
the said decision, it had been held as follows:-
Notice to, local agent is sufficient The essential of a good notice appears to be that it should reach the person who is liable to make good the loss.
Where goods are booked to tie carried over the lines of several carrier, the proper person who is liable is the person to whom the goods were
delivered and the contract is not a divisible one and the question with who the contract was made is question of fact
The teamed counsel appearing for the appellant has relied on a decision of the Supreme Court in P. Rama Rao Vs. P. Nirmala and others, . In
that case, it has been held that.
Admittedly, notice was issued by the petitioner on July 5, 1983, after the expiry of six months time. A reading of Section 10, it would make it
clear that no suit shall be instituted against common carrier for the loss of or injury to the goods entrusted to him for carriage, unless notice in
writing of the loss of or injury to the goods has been given to him before the institution of the suit within six months of the time when the loss of or
injury to the goods first came to the knowledge of the plaintiff. The admitted position is that P. Nirmala, the owner of the truck had an insurance
policy with the 4th respondent Oriental Fire & General Insurance Co., Ltd., Ultimately, the liability is sought to be fastened on the insurance
company as insurer, for the liability of common carrier. As a result, notice has to be issued, when the damage was caused to the goods which is
being carried due to an accident covered under the policy of insurance. So, a notice u/s 10 is required to be issued to the Insurance Company
within six months form the date of the knowledge of the injury to or loss of the goods entrusted for carriage before filing the suit In fact, admittedly,
such a notice was issued on July 5, 1983, namely after the expiry of six months from the dt of the accident, namely July 9, 1982. The
appellant/petitioner stepped into the shoes of the carrier, i.e., P. Nirmala. Notice issued by the Indian Oil Corporation to the petitioner as well as
common carrier and the Insurance Company would not be construed to be a notice u/s 10. Under these circumstances, it must be held that the suit
against the Insurance Company would not lie.
Since the facts of the above cited case are totally different from the facts of the present case, the judgment will not in any way advance the
contention of the learned counsel for the appellant.
The learned counsel for the appellant also cited a decision in Sharma Goods Transport Vs. Vidarbha Weavers Central Co-operative Socy.
Ltd., and the decision in P. Rama Rao Vs. P. Nirmala and others, for the proposition that notice is mandatory. There cannot be any dispute that a
notice u/s 10 of the Carrier Act is mandatory. So for as the present case is concerned, notice has been issued to the first defendant who has been
held as the agent of the second defendant. Hence, these decisions are not applicable to the facts of the present case.
The learned counsel for the appellant has also made an attempt that if really the first plaintiff is claiming loss from the second defendant, they
would not have settled the freight charges subsequent to the loss caused. The payment of freight charges to the permanent and regular carrier,
though certain amounts are due from them as damages, cannot be construed that the first plaintiff has waived the claim The learned counsel for the
appellant has also raised a question of limitation, since the suit was filed on 11.4.1983, it is well within the period of limitation.
For the foregoing reasons, the judgment and decree of the trial court are confirmed in its entirety and the appeal is dismissed with cost.