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2010 DIGILAW 1156 (KAR)

A. S. Transport v. Praxair Carbon Dioxide

2010-11-08

AJIT J.GUNJAL, B.V.NAGARATHNA

body2010
JUDGMENT AJIT J. GUNJAL, J.—Even though both these appeals are listed for admission, with consent, appeals are taken up for final disposal. 2. R.F.A. No. 1335/2007 is by the defendant. We notice that notice has not been served. We direct Mr. R. Rajgopalan, learned counsel to accept notice for respondents. Service is complete. 3. R.F.A. No. 1335/2007 is filed by the defendant and R.F.A. No. 1488/2007 is filed by the plaintiffs. 4. The defendant is aggrieved by the judgment and decree passed by the learned Trial Judge decreeing the suit of the plaintiffs for recovery of amount of Rs. 6,60,942/- with interest @ 6% p.a. from 15.3.2001 till the date of realisation. Insofar as the appeal filed by the plaintiffs is concerned they are really aggrieved by the later part of the judgment wherein the Court has declined to grant costs. 5. During the course of judgment, parties would be referred to as per their ranking in the Trial Court. 6. The plaintiffs have filed a suit for recovery of Rs. 8,04,484/- with future interest at 15% on the claim of Rs. 6,60,942/-. 7. The facts leading to filing of this appeal can be summarized as follows: 8. The 2nd plaintiff is the insurance company and one of the subsidiaries of General Insurance Corporation of India, which is a Government of India undertaking. The defendant is a fleet owner and transport contractor. The 2nd plaintiff has issued a marine cargo insurance policy bearing No. 070504/21/28/11/101/99 valid from 23.11.1999 to 22.11.2000 to the first plaintiff covering transit risks in India for indigenous equipment, machinery and accessories for a sum of Rs. 2,00,000/- only. The 1st plaintiff had engaged the services of defendant for the transportation of 20 MT CO2 storage and vaporization system from M/s. Kanara Engineering Co., Mangalore, to M/s. SMV Beverages Ltd., Nagpur. The said consignment was handed over by the 1st plaintiff to the defendant on 16.12.1999 for transportation. The 1st plaintiff had declared the value of the consignment at Rs. 12,05,485/-. The defendant has issued a consignment note on 16.12.1999 in this regard. It is stated that the consignment did not reach the consignee. The 1st plaintiff pursuant to a communication dated 18.12.1999 was informed by the defendant that the trailer carrying the consignment met with an accident at Channarayapatna near Hassan and the consignment, i.e., the goods were damaged. 12,05,485/-. The defendant has issued a consignment note on 16.12.1999 in this regard. It is stated that the consignment did not reach the consignee. The 1st plaintiff pursuant to a communication dated 18.12.1999 was informed by the defendant that the trailer carrying the consignment met with an accident at Channarayapatna near Hassan and the consignment, i.e., the goods were damaged. The plaintiff engaged the services of one Jayaram, Insurance Surveyor from Hassan, and a spot preliminary inspection was conducted. The said Surveyor has issued a letter dated 2.2.2000 regarding the accident and he has also assessed the damages of the consignment. The Surveyor had given the report dated 24.2.2001 assessing the damage. The 1st plaintiff wrote a letter dated 7.3.2000 to the defendant holding them responsible for the damage to the consignment and demanded a sum of Rs. 12,05,485/- being the value of the consignment. The 1st plaintiff-insured preferred a claim with the 2nd plaintiff. The 2nd plaintiff settled the claim of the 1st plaintiff for a sum of Rs. 6,66,942/- on 15.3.2001. 9. The specific case made out by the plaintiffs is that the said damage caused to the goods was due to the negligence and carelessness of the defendant and he is liable to compensate the plaintiffs the loss with interest. The 1st plaintiff has executed a Special Power of Attorney and letter of subrogation in favour of the 2nd plaintiff for realizing the amounts due from the defendant. Hence, the suit is filed. 10. The defendant has entered appearance and filed its written statement inter alia contending that the accident cannot be classified as negligence or carelessness driving on the part of the defendant. But, however, they would contend that it is an Act of God inasmuch as it was a rainy season and due to bad weather the accident has occurred. Hence, in these circumstances, they would tacitly deny the plaintiffs claim for the damages. 11. Incidentally, it is to be noticed that a contention is raised that the vehicle in question was in fit condition and the competent authorities have certified the same. The defendant would also deny the execution of Special Power of attorney by the 1st plaintiff. 12. The sum and substance of the defence is that they are not liable to satisfy the suit claim. The defendant would also deny the execution of Special Power of attorney by the 1st plaintiff. 12. The sum and substance of the defence is that they are not liable to satisfy the suit claim. On the basis of these pleadings, the learned Trial Judge has framed as many as seven issues: (i) Whether the plaintiff proves that the goods consigned under GC No. 021334 dated 16.12.1999 with defendant for transportation were damaged due to negligence on the part of the defendant? (ii) Whether the plaintiff proves the issuance of notice under Section 10 of the Carriers Act, 1865 to the defendant? (iii) Whether the defendant proves that the goods were entrusted for transportation at owner’s risk? (iv) Whether the plaintiff No. 2 is subrogated by plaintiff No. 1 with regard to the suit claim? (v) Whether the plaintiff proves that the goods were damaged to the extent of Rs. 6,66,942/-? (vi) Whether the plaintiff is entitled to recover Rs. 6,04,484/- from the defendant as claimed? (vii) What order or decree? 13. In support of their respective pleadings, the parties have let in evidence. On behalf of the plaintiff P.W. 1 one of the officials of the 2nd plaintiff was examined. On behalf of defendant D.W. 1 was examined. In support of the claim, plaintiffs have marked documents at Exs. P1 to P13. Insofar as defendant is concerned no documents were marked. The learned Trial Judge on the basis of the said evidence was of the view that the plaintiffs case is required to be accepted and granted a decree as stated earlier. 14. Indeed, the learned Trial Judge has not accepted the entire suit claim as such but, however, on the basis of the report of the valuer has determined the loss at Rs. 6,66,942/-. But, however, while decreeing the suit, the learned Trial Judge has not awarded the costs. Hence, the plaintiffs as well as the defendants are in appeal before this Court. As observed earlier, the defendant has questioned the grant of decree for recovery of money and so far as plaintiffs are concerned they are questioning the judgment and decree before this Court seeking costs of the proceedings. 15. We have heard Mr. S.M. Hegde Kadave, learned counsel appearing for the defendant as well as Mr. R. Rajagopalan, learned counsel appearing for the plaintiffs. 16. Mr. 15. We have heard Mr. S.M. Hegde Kadave, learned counsel appearing for the defendant as well as Mr. R. Rajagopalan, learned counsel appearing for the plaintiffs. 16. Mr. S.M. Hegde Kadave, learned counsel appearing for the defendant would vehemently contend that in the given set of circumstances, the learned Trial Judge could not have accepted the valuers report. He further submits that the valuer was not examined and subjected to cross-examination, hence, the same could not have been accepted. Another contention raised by him is that the accident had occurred due to the Act of God and inclement weather and the transporter cannot be held liable for such act to satisfy the claim of the plaintiffs. 17. Mr. R. Rajagopalan, learned counsel appearing for the defendants would support the judgment and decree of the Trial Court. Insofar as the costs are concerned, he submits that since the suit is instituted for recovery of money, the plaintiffs are entitled for costs inasmuch as they have expended considerable amount by way of court-fee while instituting the suit. The following points arise for consideration: (i) Whether the Trial Court was justified in accepting the valuers report? (ii) Whether the judgment and decree of the Trial Court warrants interference? (iii) Whether the plaintiffs are entitled for costs? 18. Insofar as the contention of Mr. S.M. Hegde Kadave, learned counsel appearing for the defendant that the valuer was not put into the box and defendant was not allowed to cross-examine, it is to be noticed that the learned Trial Judge has accepted the report. Indeed, the specific contention as averred by the plaintiffs in the pleadings as well as during the course of evidence is that the valuers are duly licensed surveyor appointed by the Government of India. Hence, it cannot be said that the said report cannot be accepted. 19. Incidentally, it is to be noticed that the said surveyor report, i.e., Exs. P6 and P7 were marked through P.W. 1. In fact, a perusal of the evidence and the cross-examination would clearly disclose that the defendant has not chosen to cross-examine the plaintiff on the said aspect of the matter. Unless there is a challenge to the said documents during the course of cross-examination, which would compel the insurer to examine the valuer. In fact, a perusal of the evidence and the cross-examination would clearly disclose that the defendant has not chosen to cross-examine the plaintiff on the said aspect of the matter. Unless there is a challenge to the said documents during the course of cross-examination, which would compel the insurer to examine the valuer. But, however, in the case on hand we notice that there is no cross-examination on this aspect of the matter by the defendant. Even otherwise, it is to be noticed that nothing prevented the defendant to have his own valuer and submit a report. In fact, the defendant has not chosen to get any documents marked during the course of trial. In fact, the case of the defendant from the pleadings and evidence appears to be one of total denial. Indeed, whenever the plaintiff or defendant takes up a specific pleading, there must be evidence in support of the same but in the case on hand it is lacking. 20. Indeed, we are of the view that the fact that the valuer was not examined that by itself would not disentitle the plaintiff from getting a decree as sought for. 21. Indeed, insofar as the next contention regarding inclement weather and Act of God is concerned, we are constrained to observe that once again there is absolutely no evidence in this regard. Mere assertion in the written statement itself will not be a ground for us to infer that the accident has occurred due to inclement weather which could be termed as Act of God. 22. Indeed, the Carriers Act, 1865 would provide for recovery of loss or damage caused. In this regard few provisions of the Act are required to be noticed. 23. Section 8 would refer to a common carrier liable for loss or damage caused by neglect or fraud of himself or his agent. Indeed, this is referable to common carrier. 22. Indeed, the Carriers Act, 1865 would provide for recovery of loss or damage caused. In this regard few provisions of the Act are required to be noticed. 23. Section 8 would refer to a common carrier liable for loss or damage caused by neglect or fraud of himself or his agent. Indeed, this is referable to common carrier. Indeed, the said provisions would indicate, every common carrier shall be liable to the owner for loss of or damage to any property (including container, pallet or similar article of transport used to consolidate goods) delivered to such carrier to be carried where such loss or damage shall have arisen from the negligence of the carrier, criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of Section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants. Plaintiffs, in suits for loss, damage, or non-delivery, are not required to prove negligence or criminal act. 24. Indeed, if Sections 8 and 9 of the Act are read in tandem, we are of the view that burden is essentially on the defendant to prove that he had taken necessary care but nevertheless the accident has occurred and the same cannot be attributed to him. As we have already observed, the defendant has failed to prove by any evidence that the accident has not occurred due to negligence or carelessness of the carrier. 25. Indeed, this Court in the case of Assam Bengal Roadways Ltd. and another vs. Union of India, reported in AIR 1988 Kant. 157 has observed that, the burden of showing that the loss that was caused to the property, was not owing to the negligence or criminal act of the carrier, his servants or agents, will be entirely on the carrier. 26. Indeed, the burden was essentially on the defendant. To that extent we are of the view that the judgment and decree passed by the learned Trial Judge decreeing the suit does not warrant interference. This takes us to the appeal filed by the plaintiff for costs. 27. 26. Indeed, the burden was essentially on the defendant. To that extent we are of the view that the judgment and decree passed by the learned Trial Judge decreeing the suit does not warrant interference. This takes us to the appeal filed by the plaintiff for costs. 27. Indeed, it is to be noticed that the suit is one for recovery of money. Indeed, it is to be noticed that Section 35 of Code of Civil Procedure would deal with entitlement of costs. Sub-section 2 would deal with a situation where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing. 28. Indeed, in the case on hand there is nothing to suggest that it is the plaintiff who was responsible for delay in disposal of the proceedings inasmuch as we find that there is no delay at all. Cost always follows the event, hence, we are of the view that the learned Trial Judge was not justified in declining to grant costs. To that extent the plaintiffs are entitled to succeed in the appeal filed by them. Hence, the following order: (i) Defendant’s appeal, i.e., R.F.A. No. 1335 of 2007 stands dismissed. (ii) We confirm the judgment and decree passed by the learned Trial Judge. (iii) Insofar as the appeal filed by the insurer is concerned, i.e., R.F.A. No. 1488 of 2007, we are of the view that the plaintiffs are entitled for costs. We accept the appeal to that extent.