This appeal set aside the trial court’s dismissal and the first appeal’s limited decree. The High Court accepted the surveyor’s report finding 15% water damage, granting a decree for ₹24,490 with interest against the carrier.
Set aside impugned decree; grant decree for recovery of ₹24,490 with 6% interest from date of suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934
A.F.A.No.69 of 2002 ( )
(AGAINST THE ORDER/JUDGMENTDATED 04-10-2001 IN AS.139/1992 OF THE LEARNED SINGLE JUDGE AGAINST OS.880/1987 OF III ADDL.SUB COURT, ERNAKULAM)
APPELLANT(S)/APPELLANT/PLAINTIFF:
BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA).
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
BY ADV. SRI.P.V.BABY,
THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07-09-12, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOTTATHIL B. RADHAKRISHNAN & A. V. RAMAKRISHNA PILLAI, JJ.
AFA. No.69 of 2002.
Dated this the 7th day of September, 2012
JUDGMENT
Thottathil B. Radhakrishnan, J.
The plaintiffs are the appellants. The goods belonging to the second plaintiff were transported from Cochin to Culcutta by defendant carrier. The goods were insured with the first plaintiff insurer. It was not disputed that out of 200 bundles of consignment, one bundle was short delivered and balance materials weighing 9950 Kgs. were water damaged, the extent of damage being 15% of the goods' value. Such loss assessment has been made in Ext.A3 surveyor's report. The said surveyor's report had essentially been relied on by the carrier while issuing Ext.A5, to record the remarks as per the consignee. Therefore, the acceptance of Ext.A3 is not in dispute yet.
first appeal granted a decree for `1,600/- as against the plaintiffs' claim of
AFA.No.69/02 -:2:-
`24,490/-. In fact, Ext.A14 even contains an offer of the carrier that they are prepared to pay 10% of the loss caused. While the plaintiffs cannot be tied down to that, the fact of the matter remains that even the learned Single Judge granted amounts lesser than the conceded amount.
for, the existence of that report cannot be disputed by the carrier, going by the entries in Ext.A5.
24,490/-, we see that the damages assessed at 15% of the value of the goods comes to 23,700/and the value of one bundle of rubber comes to `790/-.AFA.No.69/02
-:3:-
In the result, the impugned judgment of the learned Single Judge
and the decree of the trial court are set aside and the plaintiffs are granted a decree for recovery of `24,490/- with interest thereon at 6% per annum from the date of suit till recovery with proportionate costs in the suit, in
the first appeal and in this appeal.
Sd/- THOTTATHIL B. RADHAKRISHNAN JUDGE
Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE
//TRUE COPY//
P.A TO JUDGE
krj
3 issues framed by the court
Whether the surveyor’s report assessing loss at 15% of goods’ value should be accepted despite the trial court’s dismissal.
Whether the lower appellate court’s decree granting only ₹1,600 was arbitrary in light of undisputed loss assessment.
Whether the plaintiffs are entitled to full relief for water damage and short delivery of consignment.
The Oriental Insurance Co. Ltd.
The Keala State Co-Operative Rubber Marketing Federation Ltd.
Patel Roadways (P) Ltd.
Thottathil B. Radhakrishnan
A. V. Ramakrishna Pillai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court