Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 201 (KER)

Transport Corporation of India Ltd. v. United India Insurance Co. Ltd.

2016-02-22

A.HARIPRASAD, ANTONY DOMINIC

body2016
JUDGMENT : Antony Dominic, J. The defendant in O.S.82/98 on the file of the Sub Court, Thiruvalla has filed this appeal, aggrieved by the judgment and decree dated 17.6.2000. The suit was filed by the respondents herein alleging that on 11.5.1996, the second respondent had entrusted 5 numbers of 33 K.V.Vacuum circuit breakers with accessories valued at Rs. 14,63,700/- with the appellant for transportation from the second respondent’s unit at Mannar near to Thiruvalla to Balasore in Orissa. The truck which carried the goods met with an accident on 3.6.1996 causing severe damage to the goods. While the damaged goods were kept in the godown of the carrier, a preliminary survey was conducted and Ext.A3 is the report. Thereafter, the goods were sent back to the second respondent consignor at Mannar. Subsequently, a final survey was conducted and in Ext.A4, the final survey report, the loss was assessed at Rs. 3,75,356.40. According to the respondents, despite the loss having been occasioned on account of the negligence and carelessness of the appellant and its employees, the appellant refused to compensate the second respondent and therefore, the first respondent, the insurer, settled the claim of the insured by paying Rs. 2,61,000/- and this is evidenced from Ext.A7. Thereafter, the second respondent issued Ext.A8 letter of subrogation cum power of attorney in favour of the first respondent. It is on that basis, the suit was filed claiming a decree for realisation of Rs. 2,61,000/- together with 12% interest. 2. In the written statement filed, the appellant contended that they are not liable for damages in as much as there was no negligence or carelessness on their part. According to them, the accident which took place in transit was an act of God. They also contended that the goods were not properly packed and that damage, if any, was caused due to its poor packing. They pleaded ignorance of the survey conducted and according to them, the survey, if at all conducted, was without any notice to the carrier. It was also contended that the loss assessed was excessive and without any basis. They also disputed the validity of Ext.A8 letter of subrogation cum power of attorney relied on by the first respondent. Before the trial court, necessary issues were framed and PWs.1 and 2 were examined on behalf of the plaintiffs. Exts.A1 to A9 were also marked. It was also contended that the loss assessed was excessive and without any basis. They also disputed the validity of Ext.A8 letter of subrogation cum power of attorney relied on by the first respondent. Before the trial court, necessary issues were framed and PWs.1 and 2 were examined on behalf of the plaintiffs. Exts.A1 to A9 were also marked. On behalf of the appellant, DW1, their Branch Manager was also examined. On conclusion of the trial and on appreciation of the evidence on record, the court below decreed the suit as prayed for, however, allowing interest at 6% per annum from the date of suit till realisation and with costs. It is this judgment and decree which is impugned before us. 3. Before us, mainly two contentions were urged by the learned counsel for the appellant. First contention was with respect to the competence of PW2, the Surveyor, who conducted the final survey and caused Ext.A4 report and the second contention raised was with reference to the quantification of damages on the basis of which the suit in question was filed. 4. Having considered the rival submissions made at the Bar, in our view, it would be apposite to deal with the second contention regarding the quantification of damages. As already stated, once the goods were returned to the premises of the insured, the second respondent, final survey was conducted and Ext.A4 final survey report was issued on 7.11.1996. It was PW2 who conducted the final survey. In the final survey report, the total loss has been estimated at Rs. 3,75,356.40. Reading of this report shows that damages have been found under two heads. The first is with respect to the damages caused to vacuum interruptors. It is seen that there were totally 15 numbers of vacuum interruptors, among which, two were found missing. Out of the remaining 13, one was found to be beyond rectification and reclamation, 7 were found to be without any defect and the remaining 5, on evaluation by M/s.Bharat Electrical Limited, which is the manufacturer and after high voltage test conducted at the premises of the second respondent itself, were found to be in working condition and defect free. This, therefore, means that loss was caused only in respect of 3 vacuum interruptors. 5. Although the report states that M/s.Alind had claimed Rs. This, therefore, means that loss was caused only in respect of 3 vacuum interruptors. 5. Although the report states that M/s.Alind had claimed Rs. 5,30,000/- as loss for the whole 15 vacuum interruptors, the report concludes by stating that Rs. 3,31,500/- could be saved by using the 12 vacuum interruptors. This leaves the total loss only at Rs. 1,98,500/-. Thereafter, assessment has been made in respect of damaged components. In respect of the damaged components, based on the spares price list, damage estimated by M/s. Alind was Rs. 66,300/- per vacuum interruptor. Out of this, after removing the profit element, actual cost has been quantified at Rs. 38,596/-. Thereafter, the total damage has been estimated at Rs. 3,75,356.40, without disclosing the basis thereof. This therefore means that the basis on which the total loss was recommended by the Surveyor at Rs. 3,75,356.40 is not discernible from Ext.A4, the survey report. 6. Law is trite that when damages is claimed, the basis of its quantification should be proved by the plaintiff. In so far as this case is concerned, apart from Ext.A4, there is no other document or even oral evidence, to substantiate the basis of the claim. Ext.A4 does not, in any manner, disclose the basis on which the damages have been estimated. If that be so, there is total dearth of evidence regarding the quantification of damages. In such a situation the court could not have granted a decree entitling the respondents to realise Rs. 2,61,000/-representing the amount paid by them to the second respondent in settlement of their claim. In such circumstances, we have no option but to allow the appeal. In the aforesaid circumstances, the appeal is allowed. The judgment and decree under appeal is set aside and the suit will stand dismissed.