MANAGING PARTNER Vs. NEW INDIA ASSURANCE COMPANY LTD

JUDGEMENT

(1.) The appellant is the defendant in O.S.No.69 of 2015 on the file of the Court of the Subordinate Judge of Ernakulam. The respondents are the plaintiffs therein. The respondents had in the plaint prayed for a decree allowing them to realise the sum of Rs.10,23,513/- with interest at 12% per annum from the date of suit till realisation from the defendants and their assets as also costs of the suit. The brief facts of the case as set out in the plaint are as follows:

(2.) 15.750 M.T. of acetone was consigned by Hindustan Organic Chemicals Limited, Kochi for delivery to the business premises of the second plaintiff in Medak District in Andhra Pradesh. The goods were valued at Rs.14,678,058/- and the entrustment was on 2.5.2013. The goods were carried in a tanker lorry bearing registration number MH04CU3243. The said tanker lorry capsized on 4.5.2013 at Gajrampally Village of Anandapur District in Andhra Pradesh. This resulted in loss of 10360 kilograms of acetone. On coming to know of the incident resulting in leakage of acetone, the second plaintiff informed the matter to the first plaintiff which in turn arranged a survey to be conducted through its authorised surveyor. After conducting the survey on 6.5.2013 and 14.5.2013 with notice to the carrier, the insurer settled the claim of the consignee by paying the sum of Rs.10,23,513/-. It also obtained a letter of subrogation and special power of attorney from the consignee. The insurer and the consignee thereafter jointly instituted O.S.No.69 of 2015 praying for a decree allowing the first plaintiff to realise the sum of Rs.10,23,513/- with interest and costs from the defendants and its assets.

(3.) Upon receipt of summons, the defendant entered appearance and filed a written statement wherein it admitted the entrustment of the goods for carriage as also the fact that the motor vehicle in which the goods were being carried, capsized on the way resulting in loss and consequential short delivery. It however contended that as the goods were carried at the owner's risk, it is not liable. It further contended as follows in paragraph 9 of the written statement: