S G SAMBANDAN & CO REPRESENTED BY T S RAJESHWARAN Vs. UNITED INDIAN INSURANCE COMPANY LIMITED, A SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA & ORS

JUDGEMENT

(1.) Leave granted.

(2.) This appeal has been filed against the judgment of the High Court dated 18.02.2011 dismissing Appeal Suit No.469/2002 filed by the appellant. The parties shall be referred to as described in the plaint. The plaintiff No.2 purchased 9.430 Metric Tonnes of RBD Palmolein loose oil valued at Rs.2,65,473.36 from ITC Agro Tech Limited, Port Area, Visakhapatnam on 23.08.1997. Thereafter, the said oil was entrusted to defendant No.1 for transporting by road from Visakhapatnam to deliver at Kurnool. Defendant No.1 carried on business as transporter and held itself out as being ready to carry goods for any person. Defendant No.1 accepted the said consignment and issued lorry receipt No.506, dated 23.08.1997 and dispatched the said Palmolein Oil in lorry tanker No.AEV 6999. The tanker belonged to defendant No.2 (appellant herein-owner of the Vehicle). The consignment was insured with plaintiff No.1/Insurance Company for loss in transit under policy No.051100/21/26/11/10423/97, dated 10.07.1997. The appellant was not aware of the purchase of palmolien loose oil valued at Rs.2,65,473.36 from ITC Agro Tech Ltd. as there was no contract between the appellant and the owner of the oil purchaser. On 24.08.1997, when the lorry reached near Khammam, it met with an accident and fell into a canal. The accident was reported in Khammam Rural P.S. and police registered a case Cr.No.144/97 against the driver of the lorry. On account of the accident there was leakage of oil from the tanker and quantity of 7599 Kgs. of oil was leaked out and mixture of oil and water weighing 1831 Kgs. was recovered from the accident spot. When lorry met with an accident, plaintiff No.2 issued notices to defendant No.1 and defendant No.2 claiming damages. For the notices, defendant No.1 did not give any reply. But a reply notice was issued on behalf of defendant No.2 under Ex.A4 dt.27.10.1997.

(3.) A suit being O.S. No.68/1998 was filed in the Court of Additional Civil Judge, Kurnool by M/s. Kanti Brothers impleading the appellant as defendant No.2 and M/s. Edible Oil Tank Truck Owners Welfare Association as defendant No.1. Trial Court after marshalling the evidence and hearing the parties decreed the suit in following manner: