SAVANI TRANSPORT PVT LTD Vs. RUKMANI MILLS LIMITED

JUDGEMENT

(1.) THIS appeal is filed against the judgment and decree dated 24.12.1986 and made in O.S. No. 167 of 1983 on the Court of the Subordinate Judge at Madurai. The second defendant is the appellant herein.

(2.) THE case of the plaintiff is concisely narrated below:- THE suit is one for a recovery of a sum of Rs. 50,000 being the value of the damaged consignment with subsequent interest at 12% per annum. THE plaintiff entrusted 45 bags of cotton yarn on 8.5.1980 to the second defendant-appellant for safe carriage from Madurai to Bombay intended to be delivered at their sales depot at Bombay plaintiff who booked the consignment also insured the consignment with the second plaintiff under the marine insurance open policy under policy No. 125000/3/1/00470/79 to compensate the first plaintiff against any loss or damage caused to the consignment during transit under Ex.A.1 and as such, the plaintiff is insured and the second plaintiff is the insurer. On 15.5.1980, the first plaintiff has received a letter which is Ex.A.6 from the first defendant stating that they have received the consignment containing 45 bags of yarn from Savani Transport Limited and the same is kept on account of the second defendant sand further advised the plaintiff to take delivery of the above consignment. Pursuant to the said letter, the sales depot of the first plaintiff at Bhiwandi has taken delivery of 20 bags of cotton yarn out of 45 bags and the remaining bags were lying in the godown of the first defendant. THEreafter, the first plaintiffs came to know that there was a fire accident on 18.5.1980 and the consignments which were lying in the first defendants's godown was burnt and that the damage and fire accident occurred only due to the negligence and mis-conduct of the first defendant, who is the agent of the second defendant. Further, under Ex.A.7 the first plaintiff issued a letter to the first defendant requesting to issue a certain certificate to make a claim against the insurance company. Having received the letter, the first defendant has issued a reply on 11.6.1980 requesting certain statements under Ex.,A.11. Since damage has been caused to the consignment, the first plaintiff has preferred a claim to the second plaintiff as per the contract of insurance and received the claim from the second plaintiff under Exs.A.15 and A. 12, the second plaintiff has arranged for survey and the surveyor conducted enquiry and furnished a report on 29.3.1982 and the damage was arrived at Rs. 50,000. THE second plaintiff has also settled the claim a interim settlement at Rs. 37,500 and paid the part payment to the first plaintiff. To that effect, the second plaintiff has executed a letter of subrogation and special power of attorney dated 17.2.1985 to the first plaintiff. THE plaintiff on 11.10.1980 under Ex.A.9 requested the first defendant to furnish certificate to the effect that out of the 45 bags of yarn which the first defendant kept in the account of M/s Savani Transport Private Limited, only 20 bags were delivered on 16.5.1980 and the balance 25 bags were lying in the godown of the first defendant and destroyed in fire on 18.5.1980. For that letter, the first defendant replied that they were unable to give any details of delivery except acknowledging the fact that the yarn was still in the stock on 18.5.1980 was destroyed in fire under Ex.A.10. Since the value of the damaged consignment is Rs. 50,000, the first plaintiff is entitled to recover the same from the defendants. It is the case of the plaintiff that the first defendant is an agent of the second defendant and who has acted for and on behalf of the second defendant and in pursuance of the contract of agency, the first defendant has kept the consignment in their godown under the account of the second defendant. THErefore, both the defendants are liable to ;pay the value of the damaged consignments of Rs. 50,000. Inspite of repeated demands and notices issued to the agent of the second defendants, the defendant has not chosen to settle the claim. As per the contract of carriage between the first plaintiff and the second defendant, the defendants are liable to deliver the consignment safely without any damage or shortage whatsoever. Further, the defendants are liable to settle the claim as that of the insurer to the goods as per the Carriers Act. THErefore, under the circumstances, the defendants are liable for the suit claim.

(3.) TO what relief are the plaintiffs entitled to" 5. The trial court after considering the documentary and oral evidence has held that the first defendant is the agent of the second defendant and the notice issued to the first defendant is sufficient compliance of Section 10 of the Carriers Act and further held that the loss as claimed is really sustained by the 1st plaintiff and the second defendant is a necessary party and the plaintiff is having cause of action to institute a suit against the second defendant and the trial court is having jurisdiction and ultimately passed a decree against defendants No. 1 and 2 for a sum of Rs. 50,000 with interest at the rate of 6% per annum from the date of filing of the suit. Before the trial court, the first defendant remained ex parte. Aggrieved against the same, the second defendant filed the above appeal. 6. The first defendant has been shown as third respondent in this appeal. Though originally notice was directed to be issued to the third respondent-first defendant, subsequently, notice to the third respondent was dispensed with by order dated 22.6.1992 at the instance of the appellant herein. 7. The learned counsel appearing for the appellant assailed the Order of the trial court that (1) the suit as instituted by the plaintiff is bad in law because of the non-issuance of notice under section 10 of the Carriers Act, (2) The suit is barred by limitation and (3) In the facts and circumstances of the case, the judgment and decree of the trial court are unsustainable in law and fact.