K T CO Vs. APOLLO CABLES PRIVATE LTD

JUDGEMENT

(1.) In a suit against a Common Carrier for damages for short delivery of goods, the main point of attack at the appellate stage, inter alia, is that the suit is not maintainable due to non compliance with S.10 of the Carriers Act, 1865 (for short the 'Act'). The Trial Court, has repelled that contention on the ground that the defendant had no such plea in the written statement. The suit has been decreed by the Trial Court in terms of the plaint.

(2.) The facts in short are these: M/s. Jyoti Wire Industries had despatched two consignments of Copper wire from Bombay to Madras, the plaintiff as its consignee, the first consignment sent on 18-2-1974 and the second on 6-3-1974 The goods were sent through the defendant company, which is a transporting agency. The Bombay office of the defendant had issued Lorry Receipts for both the consignments. When the plaintiff's representative went to take delivery of goods, shortage was noticed, and this was followed by some correspondence as between the plaintiff, the defendant and the consignor. The defendant admitted that there was shortage in the goods Supplied, and allowed the plaintiff to take open delivery of the goods. The plaintiff declined to believe the defendant's theory that the shortage is on account of a theft from their godown at Guindy in Madras, and the plaintiff blames the defendant for negligence in transporting and or keeping the goods despatched, no matter that a theft, even if the story is true, had occurred in their godown.

(3.) The defendant admitted the receipt of the goods entrusted for consignment, although they did not admit that the weight, value, or contents of the bundles entrusted to them are the same as indicated by the consignor - Company. They admit that there was short supply of goods as per the Lorry Receipts issued by them, but according to them, the shortage was on account of a theft from their godown for which prompt information to the police had been lodged. They do not own any responsibility for the theft, as they had taken adequate security measures for prevention of pilferage or theft either during transit or during storage.