ASSAM ROADWAYS Vs. NATIONAL INSURANCE CO

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by Shri M. Roy, Judge, 5th Bench, City Civil Court, Calcutta dated 11th January, 1977 in Money Suit No. 360 of 1971, The defendant is the appellant in this Court.

(2.) The plaintiffs brought a suit for recovery of Rs. 18,091.14 from the defendant-carriers by way of compensation or reimbursement for damage or shortage caused, to the consignment in suit. The case of the plaintiffs is that the plaintiff No. 2 M/s. Aidaupukhuri Tea Estates (Pr.) Ltd., a private Limited Company having its registered office at Shibsagar in the State of Assam is the owner of a Tea Garden as mentioned above, On 13-8-68 the above Company entrusted with the defendant carrier M/s. Assam Roadways .160 chests of tea in sound and well packed condition for carriage by road from Shibsagar to Calcutta for delivery at G. Patel's godown at premises No. P-4/4, Watgung Siding. The above consignment was covered by three garden invoices and in acknowledgment of acceptance of the above consignment, the defendant carrier issued the relevant consignment note being No. 18 dated 13-8-68 in which the plaintiff No. 2's manager was named as the consignor and the United Bank of India as the consignee. Neither the consignor nor the consignee as named in the consignment note had any title to the consignment which was at all relevant time plaintiff. No. 2's property and the plaintiff No. 2 was the owner thereof. The United Bank of India being plaintiff No. 2's banker at Calcutta was named as the consignee merely for facilitating delivery at Calcutta. The consignment was purportedly delivered by the deferent to the said warehouse partly on 22-8-68 and partly on 26-8-68. It was found that there was shortage of 2.04 Kg. out of 35 tea chests carried by the defendant carriers' Motor Lorry being No. ASK 3963. The defendant carriers also gave delivery of only 112 tea chests and 10 bags out of 125 tea chests carried in their lorry bearing No. ASK 2178. Out of the said 112 tea chests, three chests were completely empty. The condition of delivery was all duly endorsed on the delivery receipt of the defendant. All the aforesaid receipts were usual provisional receipts pending certificate about the condition and the weights to be granted by the plaintiff No. 2's authorised tea brokers, who, after examination and verification reported that out of tea chests covered by the Invoice No. D/30, 8 chests, were badly, broken and retailed condition and short of contents, and the total shortage was found to be 159.4 Kg. and 71 chests were found damaged by water and one chest was found damaged by kerosene oil and 32 chests totally damaged and unfit for human consumption. The above shortage and damage took place while the consignment was in the custody of the defendant carriers. The repacked contents suffered deterioration in quality due to having come in contact with the damaged stuff and fetched a lower price at the auction sale. The authorised brokers duly granted their sale and account certificates. The price of the quantity Of tea short delivered and the quantity declared completely waste arid unfit for human consumption was valued at Rs. 18,210.14 P as per account given in the Schedule to the plaint. The plain tiff No. 2 duly lodged their claim with the plaintiff No. 1 and after a due enquiry into the alleged loss under the relevant Insurance Policy allowed a claim of Rs. 18,091.14 P in favour of the plaintiff No. 1. On receipt of such payment, the plaintiff No. 2 issued a letter of subrogation in favour of the above insurer plaintiff No. 1 so that a decree by way of compensation or loss may be passed, in favour' of the insurer. The plaintiff No. 2 duly preferred their claim under Section 15 of the Carriers Act. But the same was hot entertained in due course.

(3.) The defendant carriers contend that the suit is not maintainable because of non-joinder of the consignee M/s. United Bank of India. It is also contended that the claim is excessive and that the consignment is involved in ah accident during transit over which the defendant carriers had ho control. The defendant took a special plea of exemption on account of such accident as: 'incorporated in condition No. 4 recorded on the reverse of the above consignment note. Besides, the defence also took the plea that the plaintiff No. 2 failed to explain how they dealt with the damaged stuff and for which doubts remained and it appeared that they otherwise misappropriated the same in collusion with the insurer so as to profit at the expenses of the defendant carriers. The learned Judge found that the consignment was delivered in damaged condition and the defendant carriers were Liable to pay compensation for damage to the plaintiffs. The learned Judge found that the suit was maintainable. It was also found that the plaintiff No. 2 had locus standi to bring the suit. With regard to the quantum of damage, the learned Judge held that there was no substance in the defence plea that the plaintiffs' claim was exaggerated and as such, the plaintiffs' suit was decreed in full. Being aggrieved, the defendant has come up in appeal.