MILAP CARRIERS TRANSPORT CONTRS AND COMMISSIONS AGENTS Vs. NATIONAL INSURANCE COMPANY LIMITED HYDERABAD

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment and decree in O.S. No. 401 of 1981 on the file of the V Additional Judge, City Civil Court, Hyderabad. The suit filed by the first plaintiff, National Insurance Company Ltd., was decreed as prayed for Aggrieved by the same, the defendant, the Transport Company, which acted as a common carrier, has come forward with this appeal.

(2.) The second plaintiff booked a consignment of biscuit tins to M/ s Roy Brothers at Burdwan, West Bengal. The defendant, a common carrier, undertook to transport the consignment. The defendant issued Ex.A.3 lorry receipt on 25-9-1978 and sent the goods by Lorry B.H.N. 6889. The lorry receipt is signed both by the consignor as well as the representative of the defendant. The lorry receipt indicates that the goods were being carried at owner's risk and there was also a rubber stamp to indicate 'not responsible for leakage and breakage'. The consignment did not reach the destination. It was not delivered to M/s Roy Brothers at Purdwan. On 27-10-1978, the defendant issued non-delivery certificate stating that the whole consignment has been looted near Kolaghat, West Bengal. As can be seen from Ex. A.2 delivery memo, 1250 tins of biscuits, each tin weighing 4.5 KGs. and .50 tins sent free were carried as the consignment. The value of the consignment was indicated as Rs. 43087-50. Lorry freight was indicated out of it as Rs. 1,500.00. Ex.A.3 indicates that out of the total freight Rs.2,750.00, Rs. 1,250.00 was already paid when the consignment was booked. The lorry receipt had certain terms and conditions printed on the reverse of it. It is the claim of the plaintiffs that the goods were insured under Open Policy No. 690/4400638 and declaration was accordingly issued under Ex.A.4. The defendant issued non-delivery certificate on 27-10-1978. On the basis of it, the second plaintiff made a claim and the first plaintiff, the Insurance Company paid the amount of Rs. 41,587.50 towards the value of the lost consignment in full and final settlement of the claim. The first plaintiff obtained a letter of subrogation and special power of attorney from plaintiff No. 2 to institute legal proceedings and realise the amount from the defendant. The second plaintiff issued Ex. A.6 notice on 27-10-1978. The defendant received it under Ex.A.7 and gave Ex.A.8 reply on 30-10-1978. The defendant pleaded that the consignment was looted by flood affected people and the transport company will not be able to pay any damages as claimed in Ex. A.6. By reason of the letter of subrogation and special power of attorney Ex.A.11, the first plaintiff issued Ex. A.12 notice to the defendant. The defendant received it under Ex. A.13, but did not give a reply. Hence the suit.

(3.) The defendant resisted the suit on various grounds. It is claimed that the defendant is not the carrier and that it is not a transport company and that the defendant is only a broker who arranges vehicles for the parties and collects commission and brokerage. It is claimed that the defendant never took delivery of the consignment and that he did not load the consignment into the lorry and that the factum of the goods being insured is also false. It is claimed that the consignment did not reach the destination, because there were heavy rains and floods in Bihar and West Bengal at the relevant time and that the flood victims, who were without any food, looted the entire consignment and that this fact has been reported in the newspapers and a report was also given to the police station regarding the looting of the consignment. The defendant even denied issuing the non-delivery certificate. It is claimed that there is no negligence or want of proper care in transporting the consignment. It is further claimed that the defendant is not liable for the claim of the plaintiff in view of the terms and conditions printed on the reverse of the lorry receipt which are binding on the consignor-second plaintiff and as the consignment is carried, entirely at owner's risk. Under the special terms and conditions, the defendant is not at all liable for any loss or damage to the goods. It is claimed that the plaintiff did not pay the amount of Rs. 41,587-50 towards the full and final settlement of the claim of the second plaintiff and that the suit claim made by the first plaintiff is a bogus and untenable claim. It is further claimed that plaintiff No.2 always represented that the documents have been fabricated to make the claim and receive the amount from the Insurance Company. Under any circumstances, the defendant has no liability in this suit. It is asserted that the defendant is only a broker.