SHANMUGA SUNDARAM PILLAI Vs. NATIONAL INSURANCE COMPANY LTD

JUDGEMENT

(1.) -The judgment-debtor/defendant and the decree holders/plaintiffs in O.S. No. 131 of 1982 on the file of the sub-Court, Srivilliputhur are the appellant and the respondents respectively in this appeal. In this judgment, the parties would hereinafter be referred to as the 'plaintiffs' and the 'defendant'. The plaintiffs filed the suit: for the recovery of a sum of Rs. 63,500/- with interest representing the loss of goods entrusted to the defendant for carriage. On merits the suit was decreed. Henc'e, the present appeal. Heard Mr. S. Sethurarnan, learned Counsel appearing for the defendant and Mr. Rosi Naidu learned Counsel appearing for the plaintiffs.

(2.) The allegation in the plaint are as here-under: On 27.8.1979 the second plaintiff booked 100 bundles of match boxes with the defendant to be delivered to their consignee at Vijayavada in Andhra Pradesh. The second plaintiff had paid Rs. 150/- as freight charges and the defendant also issued lorry receipt No. 4837, dated 27.8.1979 evidencing the said payment. Again on the same day the second plaintiff booked 500 bundles of match boxes with the defendant to be delivered to their named consignee at Guntur in Andhra Pradesh. A sum of Rs. 750/- was paid towards freight charges and the defendant also issued lorry receipt No. 4836 dated 27.8.1979 evidencing the same. Another 400 bundles of match boxes were again booked on the same day with the defendant for onward carriage to be delivered at Vijayawada. For this also freight charges of Rs. 640/- was paid and the defendant issued lorry receipt No. 4835 dated 27 8.1979. The three consignments were loaded in the defendants lorry bearing registration No.TNR 4524 and the lorry was in the custody of the driver of the defendant. It appears that on 31.8.1979 when the lorry was nearing Vadlapedeu in Andhra Pradesh, it was driven rashly and negligently and consequently the lorry capsized and fell down on the left side of the road. The lorry caught fire. Since the goods were match boxes all the match bundles caught fire. The entire goods including the lorry were burnt down to ashes. The accident was solely due to negligence on the part of the driver of the defendant Had the driver of the defendant been little more careful and slow in driving the vehicle the accident would have been avoided. The defendant informed the accident to the second plaintiff. Since the goods were insured with the first plaintiff under a valid policy the second plaintiff reported the matter to the first plaintiff. Therefore, the first plaintiff arranged for a spot survey and on the completion of the inspection the surveyor estimated the loss at Rs. 66,363.80p. The second plaintiff by his three letters each dated 17.9.1979 claimed a sum of Rs. 7,338.80/-, Rs. 30,375/- and Rs. 28.600/- from the defendant. But the defendant by his reply dated 28.9.1979 refuted his liability. So, the second plaintiff made a claim for that sum on the first plaintiff. The first plaintiff therefore settled the claim of the second plaintiff and got a letter of subrogation. Now, the first plaintiff is subrogated to the right of the second plaintiff and the defendant under law is liable to pay the amount to the first plaintiff. The first defendant's liability as public carrier is absolute and total The defendant is vicariously liable for the conduct of the driver for rashly and negligently driving the vehicle. The plaintiff issued a notice on 30.4.1982 to the defendant calling upon him to settle the claim. The defendant sent a reply dated 18.5.1982 by a registered letter stating the claims as intenable. Hence the suit.

(3.) The defendant filed a written statement contending inter alia as follows: It is true that the second plaintiff entrusted 1000 bundles of safety matches to be transported and delivered to the consignee at Vijayavada and Guntur under the lorry receipts mentioned in paragraph 6 of the plaint. However, the plaintiffs have suppressed the existence of a special contract between the second plaintiff and the defendant. Under the contract the goods were carried at owner's risk. At the time of booking the second plaintiff had known all the terms and conditions and in token of having accepted the terms has signed in the forward note that the goods were booked subject to all the terms and conditions printed at the back of the way bill. The second plaintiff appears to have insured the goods to safeguard their own interest. It is denied that the lorry was driven rashly and negligently and consequently capsized, fell down and caught fire. The truth is that the accident to the vehicle is not due to rash and negligent driving of the vehicle when the lorry was proceeding near Yadlapedu in a normal speed of 35 K.M. per hour another lorry was coming in the opposite direction in the middle of the road and without dimming the head light. The driver of the defendant's lorry to avoid collision turned the vehicle to the extreme left side of the road. Due to the very bad condition of the road the lorry TNR 4524 capsized and as a result of which the vehicle as well as the goods caught fire and they were totally damaged. The accident was not due to any fault on the part of the defendant or his employee and the accident was due to unavoidable and unforeseen circumstances as stated above. As the contract of carriage is by a special contract and the damage to the goods was not due to any negligence or rashness or any other fault of the driver of the vehicle the defendant is not liable or answerable to the plaintiff's claim. The defendant is not aware of the survey staled to have been arranged and the report of the Surveyor on the completion of the survey. The defendant does not admit the value of the goods alleged to have been damaged. Though the liability of the defendant as a owner of the public carrier is absolute and total, the defendant cannot be termed as a public carrier burdened with the responsibility stated in the plaint as in this case the goods were carried by the defendant only under a special contract. Hence, the suit may be dismissed.