Transport Corporation of India, Sec.Bad Vs the New India Co. Ltd, and Anr.

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IN THE HIGH COURT FOR THE STATE OF TEI.ANGANA AT HYDERABAD

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WEDNESDAY,THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTTCE NAGESH BHEEMAPAKA

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CITY CIVIL COURT APPEAL NO: 170 OF 2(X)O

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Appeal Under Section 96 of CPC against the Judgment and Decrce dated 2-2-1999 in O.S.No. 313 of 1991 on the file of the Court of the llt Senior CivilJudge, City Civil^{Court, Secunderabad.}

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Between:

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Transport Corporation of lndia^having its^{Reg. Office} at^{1-7-293,Mahtma} Gandhi Road, Secunderabad. ..APPELLANT/ Defendant

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AND

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, 1. The New lndia lnsurance Company Ltd., rep. by Divisional Manager, 5h Floor, Surya Towets, S.P. Road, Secunderabad

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M/s. Bhavani Gotton Mills &^{lndustries Ltd., rep.} by^{Divisional Manager, 5h} Floor, Surya Towers, S.P. Road, Secunderabad.^{...RESPONDENTS/}

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Counsel for the Appellant: SRl. SRINIVAS^CHITTURU

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Counsel for the Respondents: SRI KOTA SUBBA RAO

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The Court delivered the folbwing Judgment:

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HON'BLE SRI^{JUSIICENAGESH BHEEMAPAI(A}

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CCCA No. 17O^{OF 2fiX)}

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JU GME If T:

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ThisAppealassailsJudgementandDecreedated o2.o2.lggg in^{o.s.No.313 0f 1991 0n the file of the tII senior} Civit Judge, City^{Civil Courts, Secunderabad'}

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2.Forbrevit5r,partiesarereferredtoasarrayedinthe suit. 3. The averments in tl.e^{plaint are , th: 1st plaintiff is} the insurance^{company, during the course of its business, it} issued. a marine^{pohcy covering the risk of the consignment} booked under^{GR.No.66653dated 18.10.1988;thesaid} consignment was^{entrusted by M/s Laxmi MachineWorks,} coimbatore for^{its safe carriage to Abohar, Punjab to the 2'd} plaintiff Company; defendant^{acceptedthe consignment for safe} delivery;^goods consist^{of seven cases of ring frames,sections} and spares, the^{said consignmentwas deliveredin a damaged} condition, therefore,^{the 2na plaintiffpreferred a claim on the} defendant and carrier^{by its letter dated 08.12.1988,for the} value of the damaged^{goods; defendant issued adamage} certificate to ttre^{2nd plaintiff on t4-12-1988, in spite of the} notice, he failed to^{make paymentto the 2na plaintiff; as the} gogds were insured, the^{2od plaintiff preferreda claim with the} t \

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lst plaintiff; th€ 1st plaintiff assessed the dams.ge with the help of an independent surveydr and paid Rs. L,g5,76Ol- to the 2nd plaintiff who, having. received it, authorised the lst plaintiff to recover the said amount from the defendant.

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On the other hand, defendant Iiled written statement contending that pa5rment made by the 1st plaintiff to tlre 2'nd plaintiff is voluntar5r; consignor has no subsisting interest in the consignment as the consignee has taken detivery of the goods, the consignee, having received the damage from the insurance company, is estopped from making any further claim from defendant, there is no legal evidence about the damage caused to tlre goods; there is no material before the court to assess the damage independently; the surveyor report has no evidentiary value in the eye of law; suit claim is barred by limitation and for want of a statutory notice under Section 10 of the Carriers Act; therefore, the suit is liable to be dismissed.

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The trial Court, based on the pleadings referred to above, framed the issues which are as under:

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i. Whether the 2na plaintiff is estopped from raising any claim.

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ii. Whether there is any damage to the consignment due to the negligenc€ on tlre part of tlre defendant.

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iii. Whether the Ist plaintiff subrogated to the rights and remedies of tl:e 2nd plaintiff against the defendant.

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iv. whether the suit is^{barred by limitation and foc want of} notice under section^{1O of the CarriersAct.'}

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v. Whether the ptaintiffs are^{entitled for the suit claim'} vi. To what relieP

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The triat Court, based on the^{pleadingsas well as} the material evidence available^{on record, held the issues in} favour of ptaintiffs and^{decreedthe suit for Rs.L,95,76O/- with} costs; interest is^{granted at 60/o per annum from the date of suit} till the date of realisation.^{Aggrieved thereby,this Appeal by the} Appellant/Defendant.

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Heard Sri Srinivas Chitturu,^{lear.nedcounsel for the} Appellant/defendant and^{Sri Kota Subba Rao, learned Counsel} for the Respondents and^{perusedthe record}

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g. It is to be noted that on the^{issue of negligence,} defendant is, admittedly,^{a carrier governedby the Carriers Act,} 1865 (for short the Act) ,^{as on the date of cause of action ie.} 18.10.1988, on which date the^{goods were entrustedto} defiendant and the subsequent^{date on which t]re damaged} goods were received, the matter stands^{governedby the Act. The} carriage by Road Act,2oo7,^{which was brought into force on} 2g.og.2oo7 by which carriers^{Act, 1865 was repealed,has}

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g- [t is relevant to note that according to^{section9 of} the Carriers Act, in any suit brought^{for d.amagesor non-}

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delivery of goods, entrusted to a carrier for transportation, it is not necessar5r for plaintiff to pncve that such loss or damage was owing to the negligrnce of the carrier or its servants. Defendant is bound by this provision and therefore, it has to be^presumed that loss or damage pleaded by plaintiffs had occurred only due to the negligence of defendant or its servants. Defendant did not lead any evidence to show that it cannot be made liable on the ground that it is not negligent or any other ground contemplated under the Carriers Act.

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The main contention of defendant, as argued by their counsel is that even though it cannot escape from the liability for the goods damaged, that, by itself, is not suflicient to fasten it with a liability of Rs. L,95,76O l- treating it as the value of the damaged goods as plaintiffs cannot, on the evidence tet in by them, be said to have proved the same i.e. the^value of^goods is Rs.1,95,7601-. Elaborating on this contention,^learned counsel for defendant pointed out tl:at plaintiffs, except examining P.W.l (the Law Offrcer) and filing the surveyor^report (Ex.AS), which was given by the surveyor appointed by the^lst plaintiff who surve5red the damage unilatera,lly without inviting defendant to sen& its representative to attend the^{said survey} and consider its objections, cannot be accepted^{as proof of value}

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of the damaged goods.

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It is further argued^{that the 1st plaintiffdid,notcare} to examine the^{surveyor as a witness and he did not} examine anybody^{from the 2'd plaintiff to prove the value of the} damaged^{goods and also payment made to it, therefore,the} claim for Rs. l,95,760l-^{should be rejected as not proved' Since} there is no^{other convincingevidenceto show as to what could} be tlle value of^{the damaged. goods, the suit claim is liable to be} rejected in toto^{on that groundalone.}

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L2. [n support of the^{abovecontention, learned counsel} for defend.ant^{placed relianceon the judgment of the Division} Bench of the^{High Court of Kerala in AssoctatedTlvrrtsgtott} corporottlon hfi.^{Ltd. v. IfutTono;l/f,16,ut,g,lse @npong LtA't} relnrted- In this^{connection,he pointed out that the trial Court} placed much reliance^{on Ex.A7 certificateissued by the} defendant treating^{it as an admission of defendant liability for} the suit claim^{which is not correct and that the said certificate} even by its^{recital would read that defendantgave it only on the} basis of the^{information given by the 1st plaintiff insureronly} for the purpose^{of giving the said certificate and it cannotbe} treated as an^{admissionof liability regarding the value of the} goods damaged. He also^{pointed out that reliance Ptacedon Exs'} A1, A4, A7, A8, A9^{and A11 and the decision of Madras High}

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'^{tggg-TLxER-o -496}

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A.^---

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Court in Ttnryo:tl Venlco,tz'clro.lapathg l-orry Serutces o. Ttl.e rfrelut rndia rnsutzrncr compang Limtte& by the trial court cannot also be said to be correct.

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on the other hand, learned counsel for plaintiffs argued that Ex.A5 survey report was given by licensed insurance surveyor and loss assessor, therefore, it cannot be brushed aside. He further argued that Ex.AT certificate, admittedly, given by defendant should be treated as an acknowledgement of its liability, including the value shown as the value of the damaged goods and the fact t]'..at the l"t plaintiff paid the said amount to the 2od plaintiffunder Ex.All are all circumstances which prove the case of plaintiffs with certaint5r and therefore, tJre trial court rightly decreed the suit and the same does not call for interference.

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L4Now the point for considerati.,on is whether the trial Court was right in quantitnng ttre loss at Rs. l,95,Z6(,l- on the strength of Ex.A7 certilicate and Ex.AS surveyor report and upholding the suit claim

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The judgrnent in Assoc tated ?:rvrrrsport corTroration ca,se {referred supra) has been more or less given on similar facts. That was also a case where the trial court decreed the suit of the insuranace company which it brought as a

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' *yad1^{r M{J 64} |^l {^les8l Acc- 1o2

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subrogee^{and the judgementreads that apartfrom e certificate} issued by^{the carrier, the trial court relied upon merelya} certifrcateissuedbythesulveyorappointedbytheinsurance comparry^{and the proof of payment made by the insurance} companytotheowTlerofthegoods.Rejectingthecontentionof the insurance^{company,in that case that tl.e certificateissued} bythesurveyorandthefactthatitpaidtheamounttothe ownerofthegoodswassuflicientproofoft}revalueofthe damaged^{goods, the Court observed as under:}

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'......^{No notice is issued to the defendant before the suwey is} made. The^{surveyor whopreparedexhibit'A7 has not been examinedto} prlovethecontentsofexhibitAT'Moreover'thereisnotevenformal evidenceadducedbythe2naphintiffastothequantumofdamageswho aloneiscompetenttoprovethesame.Theonlywitnesse:raminedonttre sideoftheplaintiffsisPW.lwhoisanoffrcerofthel"tptraintiff insurancecompany.Hecannothaveanydirectknorrledgeregarding thesemattersandhisevidenceisnotsufficienttoprovethequarrtumof damages.Themerefactthatthe["tplaintiffpaidtheamounttotlre2"d plaintiff will not^{be suflicientevidence,nor will it bind the defendant} whoisultimatetyliablefordamages.[nthesecircumstances'weane constrained^{to hold that thereis absolutelyno evidenceto prove ttre} quantumofdamagesandthedecreegrantedbythel.owercourt,fixing tJeedamagesat{9,2021-iswithoutanyevidenceandisliabletobeset aside.........."

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16.Withtheabovereasoning'theDivisionBenchofthe HighCourtofKeralaallowedtheAppealofthetransport company. tn^{the considered opinion of this Court, the reasoning}

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in the above decision regarding the requirement of proof of the value of damaged goods is correct. The facts in the present case so far as Ex.AS survey report is concerned, are simitar. It appears, the lst plaintiff insurance cpmpany thought that it did not examine the surveyor to prove the survey report and the loss arrived at by him and further, the surrrey report also shows that it was done unilaterally without participation of the representatives of the defendant company to participate in the survey and give it an opportunity to consider its point of view or objections on the aspect. The l"t plaintiff merely examined PWl, who has no knowledge about the value of the damage to the goods. tt also did not examine any competent from the 2^d plaintiff who could speak about the same, but merely relied upon Ex.Al I receipt grven by the 2na phintiff for payment received by it. The transaction covered by Ex.All is a matter between plaintiffs I and 2 and unless there is direct evidence to show that the value of the damaged goods works out to the amount claimed by plaintiffs that cannot be sufficient basis to fasten the defendant with that liabitity.

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L7. Hence, what is to be looked into is whether Ex.A7 certilicate which was admittedly given by the defendant can be treated as admission or acknowledgement that it aCcepted the value of the damaged goods at Rs. 1,95,760/- rnenti.oned in Ex. //

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A7 certificate.^{Upon perusing the said certificate,it cannot, in} the opinion of this^{Court, be treated as an admissionor} acknowledgement^{by defendant that value of the goods damaged} is Rs.1,95,760/-.^{In fact, the above endorsement can be treated} as defendant^{admittedthat its vehicle in which the goods were} carried met^{with an accident within the limitsof the Police} Station mentioned^{and the same goodswere damaged and} nothing more. It^{should also be noted that defendant had} mentioned specifrcally^{in the above endorsernentthat sunrey} was conducted by^{the New IndiaAssuranceCompany Limited} without its^{participation and that survey has estimated the loss} mentioned in^{the endorsement, therefore,it wasmentioningit'} It appears, the l"t^{plaintiff got the above endorsement from} defendant to settle^{the claim of the 2nd plaintiff, but as} contended by the^{defendant counsel,it cannot be treated as} admission of the^{defendant liabilityfor the amount mentionedin} Ex.A7 holding that^{italsoagreed that value of the loss as} estimated by the^{surveyor or claimedby the lst plaintiff'} 18. It is pertinent to^{mention here that an admissionto} fall under Section^{17 of the EvidenceAct and becomerelevant} and to operate^{against the personmakingit, the same should be} clear and unequivocal^{in order to find the person making it' In} the course of arguments,^{Iearnedcounsel for defendant pointed}

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out the above aspect and argued that endorsemerlt in Ex.A7 certificate cannot be treated as an acknowledgement or admission on defendant's part that it had admitted the value of the goods damaged is Rs.1,95,760/-. At best, it can be treated that an endorsement in Ex.A7 would m€an to show only that defendant merely acknowledged the truck accident and damage to the goods, but not the value of the damaged goods. Theref,ore, Ex.A7 cannot be treated as an ad.mission or an acknowledgement on the part of defendant.that it had also agreed with the estimate of loss or the value of the goods damage as given by the surveyor which was relied upon by the 1st plaintiff.

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One other important aspect is that the. l"t plaintiff failed to examine the surveyor nor did it examine anybody from the 2"d plaintiff to prove that the value of the^gmds damaged was Rs. t,g5,76}l-. Bx.AS survey report shows that defendant was not invited to be present at the time of'survey. The sunrey report also shows that it was not conducted at the premises of defendant, but it was conducted at tJ e place of the 2od plaintiff where the goods were delivered. Further, it is not the case of the 1st plaintiff or its officials that notices were sent to tlre defendant informing about the date of conducting tlre survey and defendant received it but failed to appear, and this supports / /

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defendant's version that^{they did not participatein the survey.} Even assuming for^{a momentthat the lst plaintiff is entitled to} have a unilateral^{survey conductedwithout the participation of} the defendant, still, it^{ought to have examinedthe surveyor and} also the 2na^{plaintiff to prove the value of the damaged goods} and should have made^{available the surveyor for cross-} examination by the defendant. 20. Now coming to the^{judgmentof MadrasHigh Court} in Tttztgtartl Venlcoltocha.lapdtttg^{Lotry seruice's clr,*, which} was relied upon by the trial^{Court, a learnedsingle judge of the} Madras High court held^{that though the insurance company did} not examine the surveyor or^{the 2nd plaintiff therein' ie.} consignee of the^goods, the^{lst plaintiff, whichwas also the New} Indian Assurance Company^{Limited being a statutorybody} cannot be expected to^{have any need to create a false receipt,} showing that it paid the^{amount to the consignee (insured) of} the goods, and therefore^{on that premise, it proceeded to uphold} the decree. What is important^{is that the law regarding proof of} damages remains the same,^{whether the plaintiff is a statutory} body or a government^{companyor a non-government company} or a Private individual, this^{Court cannotdistingUish between} them on presumptions and^{assumptionshaving regard to the} status and character of^{plaintiff. The above decision of the}

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learned single^judge of the Madras High Court czrnnot be said to stand to reason and does not command acceptance. FurtJrer,. the view expressed by the Division Bench of the Kerala High Court in Assoctated fransport Cotporztlon cqse which is extracted supra, regarding the effect of non-examination of surveyor and the consignee of the goods for proving damage to the goods and their value stands to reason and is in accordance with [aw, hence, the same is followed. Here, it should be mentioned that Exs. Al , A4, A7, A8, A9 and.A,11 merely speak about occurrence of accident and damage to some goods of tJ:e 2na plaintiff, but they do not speak of the value of the same and no one has been examined in order to ascertain the value of the goods. Hence, the trial Court cannot also be said to be correct in placing reliance upon the same in granting the decree.

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It is settled principte of taw that in a claim for damages based either on breach of contract as in tl,e pnesent case, which is to transport the goods without camsing any damage to them or in a tort, plaintiff should not only prove the breach of the contract or the tort, but it should also prove the actual damage caused and the quantum of damages.which it claims. The said view of this Court is also fortified by the judgment in TYansport Corporation of Indta Ltd. v. Thc libw India Assurance Co. Ltd.[C.C.C.A.No.18 of L996, vide its order

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dated 17.2.20121.^{Therefore, the 1st plaintiff can be said. to have} failed in this^{case in provingthe second requirementi.e- proving} the actual damage^{caused and the quantumof damage which it} claimed. The evidence^{let in by the plaintiffs does not also show} that its ctaim^{for damages, even for any lesser amount can be} upheld. Therefore,^{it follows that plaintiffs claim for the value of} the damaged^{goods must be rejected as not proved by the} plaintiffs.

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In the lrght of the^{aforesaid reasons,the Appealis} allowed. The^{judgement and decreeof the trial court is set aside} and the suit is dismissed.^{No costs.}

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