Decided on July 13,1993



- (1.)THREE Suits, O. S. 272/84, 269/84 and 275/84 on the file of the Sub Court, Kozhikode, were tried jointly and disposed of by a common judgment. A. S. Nos. 5/90, 11/90 and 12/90 arise from the above Suits respectively.
(2.)PLAINTIFF in the Suits is the United India Insurance Company, represented by the Divisional Manager. Defendants 1 & 2 represent the Carrier, and third defendant is the consignor of the goods through the Carrier.
O. S. 272/84 relates to the consignment of 50 Bags of black pepper valued at Rs. 35,600/- to be transported to M/s. G. S. Traders, Delhi through the Carriers, Economic Transport Organisation, Beach' Road, Kozhikode. O. S. 269/84 is with respect to another consignment of 50 bags of black pepper which is valued at Rs. 37,200/ - The consignment in connection with O. S. 275/84 was also of 50 bags of pepper which was valued at Rs. 32,100/ -. All these consignments were insured with the plaintiff Insurance Company. The goods were to be delivered through the Indian Overseas Bank, and Canara Bank.

In spite of considerable length of time, the goods were not delivered through the Banks and the correspondence would show that the consignee was not honouring the consignments for some reason or other. Then there was advice from the consignor to return the goods. That could not be complied with for the reason that the Carrier was claiming exorbitant demurrages. That is evidenced by the letter addressed by the Bank to the consignor. Ultimately, the Banks had returned the lorry receipts to the consignor. On the strength of those lorry receipts, the consignor made claims with the Insurance Company and the Insurance Company paid the consignor the sums covered by the Insurance Policies and took letters of subrogation, Exts. A8, A16 and A24. On the strength of those letters of subrogation, the plaintiff has instituted the Suits for realisation of the money from the carriers. It is alternatively prayed that in case it is proved that the consignor had received the payments from the carriers, then a decree may be passed against the third defendant consignor.

(3.)THE contentions of defendants 1 & 2 are that the Court has no jurisdiction to entertain the Suits, that the claim was barred by limitation, that the Suits are bad for want , of notice under S. 10 of the Carriers Act, that there was delivery to the consignee, that the alleged subrogation is not valid and binding, and the plaintiff is not entitled to sue on those letters of subrogation, and that in any event the Suits are liable to be dismissed. THE third defendant contended that the Suits are not maintainable against third defendant, that they are bad for mis-joinder of causes of action, that there was no delivery to the consignee, that the third defendant has not received any amount from the consignee or the carrier, and that the insurance claim made by third defendant and receipt of money is valid and cannot be questioned.
The trial court held that the Court has jurisdiction to entertain the Suits, and. the claims are not barred by limitation. It is further held that there was no notice under S. 10 of the Carriers Act, and the third defendant consignor was negligent in that respect. In paragraph (10) of the judgment, the trial court held that defendants 1 & 2, the carriers have failed to prove that the goods have been delivered, to the consignee. Nevertheless, the court proceeded to hold that the consignor (third defendant) had received payments by way of price of goods and so, a decree was passed against the third defendant for realisation of the plaint claims with interest. Aggrieved by that, the third defendant has come up in appeal.


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