Dismissed

Mahaveera Transport Pvt.Ltd v. the New India Insurance Company Ltd.

Kerala HC29 Nov 2016RSA/918/2016

Case brief

AI extract

What is this about?

The High Court dismissed this appeal regarding a suit for damages to transformers during transit. Relying on a damage certificate admitted by the defendant, the court held the damage occurred during transit under the Carriers Act, 1865, and allowed the insurer to claim via subrogation.

What did the court decide?

Appeal dismissed; judgment and decree of the court below affirmed.

Mahaveera Transport Pvt.Ltd Vs the New India Insurance Company Ltd. — Insurance | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938

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RSA.NO. 918 OF 2016 (A)

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AGAINST THE JUDGMENT AND DECREE DATED 29-02-2016 IN A.S. NO. 85/2013 OF THE ADDITIONAL DISTRICT COURT, NORTH PARAVUR

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AGAINST THE JUDGMENT AND DECREE DATED 16-07-2013 IN O.S. NO. 189/2011 OF THE PRINCIPAL SUB COURT,NORTH PARAVUR

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APPELLANT/APPELLANT/DEFENDANT:

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MAHAVEERA TRANSPORT PVT.LTD., 1A, FIRST FLOOR, SOUTH BLOCK, KALOOR TOWER, KALOOR.P.O., KOCHI-682 017, REPRESENTED BY ITS MANAGING DIRECTOR.

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BY ADVS.SRI.T.P.SAJAN

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SRI.P.SANTHOSH KUMAR (TR)

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RESPONDENT(S)/RESPONDENT/PLAINTIFFS:

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1. THE NEW INDIA ASSURANCE COMPANY LTD., ALUVA DIVISIONAL OFFICE, KODAVATH SHOPPING COMPLEX, SUB JAIL ROAD, REPRESENTED BY ITS DIVISIONAL MANAGER.683 101.

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2. TRANSFORMERS AND ELECTRICALS KERALA LTD., ANGAMALY SOUTH, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER/FIRST RESPONDENT THE NEW INDIA ASSURANCE COMPANY LTD., ALUVA DIVISIONAL OFFICE, KODAVATH SHOPPING COMPLEX, SUB JAIL ROAD, REPRESENTED BY ITS DIVISIONAL MANAGER.683 101.

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R1 BY ADVS. SRI.K.K.M.SHERIF

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SRI.A.A.ZIYAD RAHMAN

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SRI.LAL K.JOSEPH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 918 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 29th day of November, 2016

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J U D G M E N T

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The appellant is the defendant in O.S.

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No.189/ 2011 on the files of the Principal Sub Court, North Paravur. The Original Suit was filed

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by the 1^st and 2^nd respondents herein claiming compensation for the damage caused to the consignment entrusted by the 2^nd respondent to the defendant for transporting the consignment to the consignee at Delhi. The defendant is a Private Limited Company engaged in the business as common carriers and transport contractors. On 12/10/2009, the 2^nd plaintiff despatched and entrusted parts of 160MA, 220/66/11 KV 3-Phase transformer from Ankamaly, through the defendant, to be delivered at Delhi to M/s Delhi Transco Ltd. According to the plaintiffs, the consignment was packed in wooden

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R.S.A. No.918 of 2016

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-: 2 :-

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boxes and in good condition at the time of

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entrustment to the defendant and it was insured by the 2^nd plaintiff with the 1^st plaintiff. The consignment was delivered to M/s Delhi Transco Ltd., on 18/11/2009. On inspection, at site, it was noticed by the consignee that out of total four radiators, two of the radiators were found damaged beyond repair and the damage was caused to the radiators in the course of transit. So, the defendant was under a statutory duty to take care that no damage would be caused to the consignment in the course of transit and it should be reached at the destination in good condition. The damage was caused due to the negligence and carelessness on the part of the defendant. So, the defendant is liable to pay compensation for the damages caused and loss suffered by the 2^nd plaintiff. Even though the 2^nd plaintiff sent a notice to the defendant claiming an

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R.S.A. No.918 of 2016

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-: 3 :-

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amount of `1,40,000/-, a compensation for the

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damage, there was no response from the defendant. Thereupon, on the strength of the insurance policy, the 2^nd plaintiff claimed the amount from the 1^st plaintiff and the 1^st plaintiff, being the insurer, settled the claim for `1,00,690/- in terms of the policy condition. Thereupon, the 2^nd plaintiff has authorised the 1^st plaintiff to claim the amount from the defendant whose negligence has resulted in damage to consignment. The 2^nd plaintiff, therefore, issued a letter of subrogation in favour of the 1^st plaintiff. Thus, the 1^st plaintiff is entitled to realise the amount paid by them to the 2^nd plaintiff from the defendant. Hence the suit.

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In the written statement, the defendant contended that the suit is not maintainable as the 1^st respondent is not competent to institute the suit and the 2^nd respondent is not duly represented in

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R.S.A. No.918 of 2016

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the suit. The entrustment of the consignment for transportation to Delhi was admitted; but the date of delivery is not correct. According to the

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defendant, the date of delivery is 27.10.2009 and not 18.11.2009. It is contended that if there was any defect or damage to the consignment, that ought to have been verified then and there at the time of accepting delivery on 27.10.2009. So, it is not correct to say that damage was caused during transit. It was also not correct to say that the damage was caused due to the negligence or carelessness of the defendant. If at all any damage was caused, it might be there when it was entrusted to this defendant or while it was in the custody of the consignee after delivery. But, the defendant admitted that it happened to issue damage certificate on 30.11.2009, but that does not mean that the defendant had admitted the liability or the

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R.S.A. No.918 of 2016

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damage was caused due to the negligence of the

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defendant, in transit. So also, the defendant challenged the quantum of amount claimed as damages and the reliability of the report submitted by the Surveyor.

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On the aforesaid rival pleadings, both parties adduced evidence, consisting of the oral testimony of PW1 to PW3 and DW1 and Exts.A1 to A16 and Ext.B1. After considering the aforesaid evidence on record, the trial court decreed the suit, as prayed for. In Appeal, the appellate court dismissed the Appeal, after concurring with the findings of the trial court. Thus, the concurrent findings, whereby the courts below found that the defendant is liable to pay compensation for the damages caused to the consignment in transit, are challenged in this Regular Second Appeal.

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Heard the learned counsel for the appellant

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R.S.A. No.918 of 2016

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and the learned counsel for the 1^st respondent.

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The entrustment of the consignment and the consequential delivery of the same at Delhi to the consignee are not disputed. According to the plaintiff, the delivery was effected on 18.11.2009; but the defendant contended that the delivery was effected on 27.10.2009. The crucial question to be considered is, whether the damage was caused in transit from Ankamaly to Delhi. Going by the impugned judgments under challenge, it could be seen that the plaintiffs have set up their claim for compensation against the defendant on Ext.A10 damage certificate issued by the defendant himself. Going by Ext.A10 damage certificate, it is seen that the defendant himself admitted that 'while unloading the materials two numbers of radiators were observed by the consignee party in damaged condition, which was occurred while transit.' Therefore, the crucial

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R.S.A. No.918 of 2016

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question raised above stands answered by Ext.A10

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damage certificate itself that the damage was caused in transit.

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At this juncture, Sections 8 and 9 of the Carriers Act,1865 (hereinafter referred to as 'the Act') come into operation. According Section 8 of the Act, when any loss or damage has arisen due to the negligence of the carrier or any of his agents or servants of the common carrier, the carrier is liable for the loss caused to the consignor. Section 9 of the Act says that in a suit against the common carrier for loss or damage of goods entrusted for transportation, the plaintiff need not prove the negligence or criminal act on the part of the

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carriers, servants etc. Thus, what required to be proved is, whether the damage was caused to the consignment in the course of transit only and in the

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instant case, the said question is answered

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R.S.A. No.918 of 2016

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positively, by Ext.A10 damage certificate.

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The learned counsel for the

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appellant/defendant contended that actually the delivery was effected on 27.10.2009 and the same is evidenced by Ext.B1 consignment note, wherein the date of delivery is seen endorsed in the seal affixed by the consignee. In view of the actual date of delivery, according to the learned counsel for the appellant, the damages have caused after 27.10.2009 i.e, after effecting delivery. This Court is not inclined to accept the said argument, in view of the pleadings set up by the defendant, in the written statement and the issuance of Ext.A10 damage certificate. Even though, in the written statement, it is stated that the actual date of delivery was 27.10.2009 and not 18.11.2009, there is no specific pleadings to the effect that the damage was caused to the consignment, after effecting

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R.S.A. No.918 of 2016

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delivery on 27.10.2009.

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Moreover, the said contention is

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unsustainable, in view of specific admission in Ext.A10 damage certificate that the damage was occurred, while in transit. Therefore, even if the actual date of delivery of the consignment to the consignee was 27.10.2009, that does not make any difference in the determination of the cause of damage, which stands admitted by the defendant himself in Ext.A10. Therefore, I do not find any illegality or impropriety in the findings that the damage was caused in transit, while the consignment was in the custody of the defendant and thereby, the defendant is liable to pay compensation to the plaintiff for the damage or loss caused by them.

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As regards the challenge against

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maintainability of the suit and the competency of the 1^st and 2^nd plaintiffs to sue against the

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R.S.A. No.918 of 2016

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defendant, I agree with the findings of the court below as those issues are pertaining to the claims between the 1^st plaintiff and 2^nd plaintiff only and the defendant has no competency to challenge the rights and liabilities between the 1^st plaintiff and the 2^nd plaintiff. So also, in view of Ext.A2 letter of subrogation, the 1^st plaintiff has right to realise the amount paid by him to the 2^nd plaintiff, from the defendant. No question of law arises for consideration in this Appeal.

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This Regular Second Appeal is dismissed

accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Mahaveera Transport Pvt.Ltd v. the New India Insurance Company Ltd.

Case brief

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What did the court decide?

Mahaveera Transport Pvt.Ltd v. the New India Insurance Company Ltd.

Case brief

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