S THANGAMUTHU Vs. UNITED INDIA INSURANCE CO LTD

JUDGEMENT

(1.) The first defendant in O.S.No.401 of 1990 on the file of the Sub Judge, Namakkal is the appellant herein.

(2.) The first respondent/plaintiff filed the above suit for recovery of a sum of Rs. 41,085/- from the present appellant as well as Vaigai Traders (2nd respondent) together with interest. The suit was decreed as against which the present appellant filed first appeal in A.S.No.93 of 1998 before the III Additional District Judge, Salem. Both the courts below decreed the suit filed by the plaintiff.

(3.) The case of the first respondent/plaintiff in O.S.No.401 of 1990 on the file of the Sub Court, Namakkal is briefly as follows. M/s Vaigai Traders (2nd respondent) is doing business in selling of eggs with its registered office at Namakkal and has also taken a Marine Policy (Ex.A6) bearing No.170903/R3/1901/16/21/16/00013/89 with the plaintiff, the United India Insurance Company. It is an open policy covering risk upto Rs. 10,00,000/- M/s Vaigai Traders despatched 1,10,000 eggs packed in plastic trays valued at Rs. 53,900/- to M/s Lucky Traders, Villupuram through the carrier, the appellant/first defendant. The goods were sent by the appellant/first defendant through a lorry bearing registration No. TN27 X 1315 on 25.04.1990 and the lorry met with an accident on 25.04.1990 near Panruti, as a result of which, 85,000 eggs valued at Rs. 39,095/- got damaged. The first respondent/plaintiff deputed Mr.Ayyappan (Pw2), a licensed surveyor to assess the value of loss. Accordingly, Pw2 assessed the value of loss at Rs. 39,150/- and submitted his report dated 22.05.1990 (Ex.A9). Thereafter, a notice under Section 10 of Carriers Act was issued to the first defendant and since there was no response from him, the first respondent/ plaintiff settled the amount of Rs. 39,150/- on 19.07.1990 to the second defendant and the second defendant executed a letter of subrogation and general power of attorney (Ex.A3) in favour of the first respondent/plaintiff, based on which the first respondent/plaintiff filed the suit against the defendants 1 to The defendants 2 and 3, remained absent and were set exparte before the trial court.