JAIHIND ROADWAYS PVT LTD Vs. HINDUSTAN MOTORS LIMITED

JUDGEMENT

(1.) M/s. Jaihind Roadways Pvt. Ltd., which figured as the defendant in O.S.No.3409 of 1999 on the file of the Additional District Judge, Fast Tract Court-V, Chennai has come forward with the present appeal against the decree of the said Court dated 30.04.2002 made in the above said original suit. The plaintiffs 1 and 2 in the original suit are the respondents 1 and 2 in the appeal.

(2.) The averments found in the plaint filed by the respondents herein/plaintiffs in brief are as follows:- Respondents 1 and 2/plaintiffs 1 and 2 are public limited companies. The defendant / respondent is a private limited company and a common carrier for reward. The first appellant/first plaintiff purchased carbon steel castings of different specifications and low alloy steel castings from M/s. Steel Cast Limited, Bhavnagar under five invoices dated 28.05.1996. The particulars of the same are as follows:- <FRM>JUDGEMENT_1171_TLMAD0_2010Html1.htm</FRM> The said goods were entrusted to the appellant/defendant common carrier at Bhavnagar by the said seller (consigner) viz., Steel Cast Limited for safe carriage and delivery to the first respondent/first plaintiff under Consignment Note No.BVN 15445 dated 28.05.1996. By the Consignment Note issued, the appellant common carrier undertook to carefully transport and deliver the said consignment in good order and condition at Chennai to the first respondent/first plaintiff. The value of the consignment was declared and noted in the consignment note issued by the appellant/defendant common carrier. The total weight of the consignment entrusted to the appellant/defendant common carrier for transport was 9852 kgs. As the goods entrusted to the common carrier were not delivered to the first respondent's/first plaintiff's office at Chennai, a notice of loss was also sent to the carrier on 20.06.1996 and periodical demand for delivery of the consignment was also made. A complaint was also lodged with the Inspector General of Police, Mumbai on 29.06.1996. Then it was represented by the appellant/defendant common carrier that the entire consignment was lost on account of an alleged disturbance enroute. As the said goods sent through the appellant/defendant common carrier was insured with the 2nd respondent/2nd plaintiff, an independent enquiry was made by the 2nd respondent's/2nd plaintiff's Chennai office, whereupon the appellant/defendant common carrier on 07.10.1996 certified that they were unable to deliver the consignment on account of an alleged looting at Bhuing Carwar District, Sathara, Maharashtra. The value of the consignment was Rs.8,53,229.50. The non-delivery certificate was also addressed to the consignor viz., M/s. Steel Caste Limited, Bhavnagar and to the first respondent/first plaintiff at Chennai. Through the communications between the appellant/defendant and the first plaintiff, the first plaintiff was accusing the appellant/defendant common carrier of misfeasance and malfeasance and held the appellant/defendant liable in law to make good the loss caused to the first respondent/first plaintiff, the owner of the consignment. As per the terms and conditions of the policy of insurance, a sum of Rs.8,53,229/- was paid by the insurer, the 2nd respondent/2nd plaintiff on account of the non-delivery of the suit consignment and on such payment the first respondent/first plaintiff executed a letter of subrogation and special power of attorney in favour of the 2nd respondent/2nd plaintiff on 24.12.1996. As such, the 2nd respondent/2nd defendant is entitled to recover the said amount from the appellant/defendant. However, with a view to avoid any technical defence being raised, the suit has been filed by both the respondents/both the plaintiffs and the respondents/plaintiffs do not have any objection for a decree being passed in favour of the 2nd respondent/2nd defendant alone or in favour of both the respondents / both the plaintiffs. The 2nd respondent/ 2nd defendant through its Recovery Agent M/s.V.N.C.Narichania (P) Ltd., made a demand for compensation on 29.04.1997. By a reply dated 26.05.1997, the appellant/defendant common carrier admitted non-delivery of the consignment, but disowned its liability to pay compensation. Once again a fresh claim was made and a similar reply was sent by the appellant/defendant common carrier on 09.09.1997. Under such circumstances, the respondents/plaintiffs were forced to file the suit for the recovery of a sum of Rs.8,53,229/- being the value of the consignment entrusted to the appellant/defendant common carrier for the non-delivery of the same. Hence, a decree should be granted directing the defendants to pay 2nd respondent/ 2nd plaintiff a sum of Rs.8,53,229/- together with an interest at the rate of 18% p.a from the date of plaint till realization and with cost.

(3.) The suit was resisted by the appellants/defendants by filing a written statement containing allegations which are, in brief, as follows:- The appellant/defendant owned its own trucks for movement of different kinds of commercial goods entrusted to it. The appellant/defendant is not aware as to whether the first respondent/first plaintiff was the owner of the steel castings of different specifications set out in para 3 of the plaint. The appellant/defendant also does not know the value of the goods. However, it is a fact that a consignment of the description found in Para 3 of the plaint was entrusted to the appellant/defendant at Bhavnagar by the consignor viz., M/s.Steel Cast Limited and a Goods Consignment Note bearing No.BVN 15445 dated 28.05.1996 was issued by the agent of the appellant/defendant at Bhavnagar. According to the instruction, the goods were to be delivered at Tiruvallur, near Chennai. Tiruvallur is not within the jurisdiction of the trial Court and hence the Court situated at Tiruvallur District alone shall have the jurisdiction. For reasons beyond the control of the appellant/defendant, it became impossible to deliver the goods entrusted to the appellant/defendant. After the despatch of the goods by a lorry truck bearing Registration No.GJ-1 X-6875 from Bhavnagar Gujarat to Bangalore enroute to Tiruvallur, it came to be noticed that the goods did not reach Bangalore in time. Thereupon the Officer of the appellant/defendant company took up a preliminary investigation from which it came to know that the Cargo was despatched on 28.05.1996 at Bhavnagar; that after filling the fuel tank there at Thane near Mumbai on 30.05.1996; It had left Thane in the evening of 30.05.1996 itself and the said truck reached Catrej Ghat near Pune next day; that when the truck was passing through the Highway, the drivers of a number of trucks found two other persons seated in the said truck who were not connected with the truck and that the truck did not reach Bangalore on 02.06.1996 as per schedule. A telephonic message sent by one Jeevarji Bhai was received at the Bangalore office of the appellant/defendant on 08.06.1996 to the effect that their truck was stranded near Vela with single tyre on the rear side and the entire vehicle was found empty without any material loaded on it. On receipt of the said information, officers of the appellant/defendant company went to that place on 09.06.1996 and other places in search of the vehicle and they were not in a position to find it. On an enquiry with their office at Thane, they came to know that the lorry truck was towed by crane and was taken to Bhuyinj Police Station. When the officers of the appellant/defendant went to the said police station, they came to know that the driver and cleaner were missing and the consignment materials were also stolen. The police officer was informed by the officer of the appellant/defendant and also gave a complaint in writing informing the said fact furnishing the value of the goods to be Rs.8,50,000/-, based on which FIR No.58/1996 was registered on 12.02.1996. On thorough investigation made by the police, one Makdoom and Kasam were arrested. They accepted the sale and purchase of the steel cast materials that were transported in the above said lorry. A very small portion of the consignment alone could be found, that too altered and melted into different shapes. Only 12 pieces of broken original castings were available. Apart from the above said Makdoom and Kasam, Bapoo Bansode, the cleaner of the lorry and one Gosavi were arrested and released. The fate of the driver by name M.T.Joyus was not known and he could not be traced. The officers of the appellant/defendant rendered all assistance by providing a lawyer to co-ordinate the investigation of the police. Despite their best efforts they were not able to trace and recover the missing goods. There was an act of King's enemy which resulted in the loss of consigned cargo. On investigation it revealed Makdoom, Gulab and Agarwal were the persons involved in the theft of the consignment. The investigation also revealed that one Rohidas Gosavi, a notorious thief, was involved in looting goods on highways and selling them to Makdoom and others. Photograph of one Bapu Bansoda was also published in the area. The investigation revealed that the said Babu Bansoda picked up friendship with the driver of the lorry in which the suit consignment was sent. The appellant/defendant had taken all steps and made honest attempts to recover the goods. As the goods were lost after the truck was hijacked, no liability attached to the appellant/defendant in respect of the loss. The loss/damage was not the one caused by the neglect or fraud of the carrier or anyone of the persons employed by them on whom they had control. While ordinarily a common carrier shall be ipso facto liable for the loss of goods or non-delivery, if the loss of goods occurs due to an act of god or act of King's enemies, the common carrier shall be exempted from such liability. An act of dacoity, theft, robbery or murder of the employees of the carrier is suspected or proved the act shall be deemed to be an act done by King's enemy beyond the control of the appellant/defendant. In any event, the appellant/defendant invariably advised the consignor to get the goods insured and accept the goods for transportation at owner's risk, mentioning such a condition in the goods consignment notice issued by the defendant. The 1st respondent/ 1st plaintiff had insured the Cargo and had admittedly recovered the value of the Cargo from the insurer viz., the 2nd respondent/2nd plaintiff. There is no privity of contract between the 2nd respondent/2nd plaintiff and the appellant/defendant and provisions of Marine Insurance Act will not apply to the facts of the case. The 2nd respondent/2nd plaintiff was liable to compensate the 1st respondent/ 1st plaintiff under a contract. The 2nd respondent/2nd plaintiff cannot initiate an action for recovery of damages against the carrier. Only if the carrier is liable to compensate the 1st plaintiff, the 2nd plaintiff shall have the right to claim the compensation based on subrogation. Appellant/defendant does not know whether M/s. VNC Narichanta Pvt. Ltd., was the recovery agent of the 2nd respondent/2nd plaintiff. Even if there is any such contract between them, the same shall be void as opposed to public policy. Therefore, the suit should be dismissed with cost holding that the appellant/defendant is not liable to pay any amount as compensation to either of the respondents/plaintiffs.