UNITED INDIA INSURANCE COMPANY LIMITED Vs. BENGAL ROADWAYS

JUDGEMENT

(1.) This appeal is directed questioning the judgment delivered by the Additional Sub Judge, Parur in O.S. No. 70 of 1988. The plaintiffs are the appellants and the defendants are the respondents. The first appellant / first plaintiff is the insurer and 2nd appellant is the insured, consignor. The first respondent is the carrier of the goods and the 2nd respondent is the agent of the first respondent.

(2.) The suit was filed for damages on the following grounds : Second appellant entrusted the consignment for the purpose of transporting the same from Cochin to the regional office of the 2nd appellant (consignee) at Calcutta. The vehicle on transit met with an accident in Andhra Pradesh and thereby sustained heavy damage and the goods were also got spoiled. When the goods were delivered at Calcutta, there was short delivery and some of the goods were not in the condition when they were consigned to the respondent for transport. A surveyor was appointed by the first appellant to assess the value of the loss, who prepared Ext. A8 survey report and Ext. 49 schedule of the joint survey. As per Exts. A8 and A9, the damage caused to the second appellant was assessed at Rs. 38,397/-. The goods were already insured with the first appellant. Therefore, the first appellant made good of the loss by paying the amount to the 2nd appellant, for which the second appellant gave Ext. Al letter of subrogation to the first appellant. After issue of notice, the suit was filed before the lower Court seeking a decree in favour of the first appellant, insurer. The contention of Mr. Madhu Radhakrishnan, learned counsel for the respondents / defendants on the first fold would be that in view of the decision reported 1986 KLT 1192 : ( AIR 1987 Ker. 62 ) (FB) in General Traders Ltd. v. Pierce Leslie (India) Ltd., there shall be specific plea with reference to subrogation in the plaint and in the absence of such plea, a decree cannot be granted in favour of the insurer, first appellant. The second limb of the contention is that as per the requirement in S.10 of the Carriers Act, 1865, a notice before the institution of the suit ought to have been sent to the carrier and there also must be a specific pleading with reference to the notice sent in the plaint. Thirdly, the witnesses, particularly, the surveyor, who conducted the survey ought to have been brought to the witness box to depose of the exact quantum of damages. Normally, the claimant is not expected to prove the negligence or any act on account of which, the accident occurred as provided in S.9 of the Act. However, when a specific plea is averred in the plaint, that needs a positive proof by the claimant. The Trial Court, on examining the evidence adduced on both sides, dismissed the suit mainly on the ground that the appellants have not established as to the exact quantum of damages to which they are entitled to. And it has rightly done and hence that judgment of the Court below does not call for any interference by this Court.

(3.) Mr. N. Gangadharan, learned counsel appearing for the appellants on the other hand submitted that there is proper subrogation under Ext. Al, proper statutory notice was issued, the negligence need not be established as enjoined in S.9 of the Act, that however, negligence had been proved by the appellants, that to fix the quantum, Exts. A8 and A9 do suffice and that therefore, the verdict of the Court below in dismissing the suit is erroneous.