M. Chockalingam, J. - (1.) THIS suit has been filed for a money decree for a sum of Rs.26,83,125.50 together with interest at 18% per annum from the date of plaint till the date of payment and for costs.
(2.) THE averments in the plaint are as follows: The first plaintiff imported two consignments of synthetic lining each measuring 80000 metres, packed in 100 export worthy carton, each carton containing 6 rolls, each roll measuring 30 metres under a commercial invoice of M/s. Kabool Limited bearing Nos.J25F 031ABO and J25F 031ACO both dated 9.3.95 valued at US$ 43200/ - EACH, CIF Madras at the rate of US$ 2.40 per metre. The said two consignments were carried under two different bills of lading and discharged at the Port of Madras for onward transportation to Delhi by road. The clearing and forwarding agents of the first plaintiff cleared the said consignments in apparent good order and condition from the Port of Madras and entrusted them to the first defendant, who acknowledged such entrustment in apparent and good condition under their two consignment notes bearing Nos.007157 and 007158 both dated 21.4.95. The goods consignment notes issued by the first defendant also reflected the pre -paid freight amounting to Rs.16,500/ - under each of the consignment notes. The said consignments were intended for 'Door Delivery' to the first plaintiff at Delhi. The first defendant did not deliver the consignment. On the other hand, they notified the first plaintiff about a fire accident in a godown at BG -348, Sanjaygandhi Transport Nagar, New Delhi on 26.4.95. Immediately, the second plaintiff was notified about the loss to the cargo insured with them. M/s .A.K.Govil & Associates, an independent licensed insurance surveyor and loss assessor was instructed to assess the loss. Pending the survey report, on 15.5.95, the second defendant issued a certificate confirming that the said two consignments were destroyed in a fire accident in their godown on 29.4.95. The plaintiffs are not aware of them jural or contractual relationship between the defendants 1 and 2. The plaintiffs are also not aware of the circumstances under which the second defendant took custody of the consignment entrusted to the first defendant, and since there is no disclosure as to the nature of the relationship amongst them, the plaintiffs are constrained to sue the defendants 1 and 2 who are the carriers to whom the consignments were entrusted. The said surveyor issued their survey reports dated 17.5.95. The surveyor found the cause for the fire either due to the electrical short circuit or negligent and careless disposal of a lighted beedi/cigarette. Quotations were called for for the damaged stocks, and the highest quotation was Rs.15000/ -. After repeated discussions, the surveyor persuaded the first plaintiff to accept such stocks at 3% of their sound value. As far as the rolls, the quotations of the local buyers were too low, and consequently, the surveyor persuaded the first plaintiff to accept 87 tolls at 20% of their sound value. After giving credit to the salvage value the net loss was arrived at Rs.13,28,772/ - in respect of each of the consignment. Thus, the first plaintiffs sustained a pecuniary loss of Rs.26,57,544/ -. That apart, the first plaintiff had to pay Rs.12791/ - each as remuneration to the surveyor in respect of the two surveys conducted by them. In respect of the said two consignments, the first plaintiff sustained a pecuniary loss of Rs.13,41,562.75. The said loss is on account of the failure on the part of the defendants to care for, carry and deliver the suit consignments in the same apparent good order and condition to the first plaintiff. The loss ought to have been only as a result of negligence and/or misconduct coupled with misfeasance, malfeasance and/or non -feasance on the part of the defendants. The defendants are under a statutory obligation to disclose as to how the consignments were dealt with while they were in their exclusive custody and during transit. The defendants are under a statutory obligation to make good the loss. On 15.6.95, the first plaintiff sent two independent notices addressed to the defendant's Madras Office under copy to their Delhi Office. In spite of the same, the defendants failed and neglected to make good the loss. The said notice is valid notice. Both the defendants are jointly and severally liable to make good the loss. The suit consignments were insured under the open policy bearing No.500505/44/24/4500165(Open) under declaration Nos.1407 and 1408 dated 21.4.95. Under the policy, the second plaintiff indemnified the first plaintiff by paying a sum of Rs.26,57,544/ - as compensation and are thus subrogated to the first plaintiff's rights of recovery from the defendants by virtue of a letter of subrogation by them on 25.3.98 and also under S. 79 of the Marine Insurance Act. The first plaintiff also executed a letter of subrogation and special power of attorney thereby empowering the second plaintiff to file and maintain legal action against the defendants. Thus the second plaintiff is entitled to initiate legal action against the defendants in their own name. The plaintiffs have no objection to a decree being passed either in favour of the second plaintiff or in favour of both the plaintiffs. Subsequent to such settlement, the second plaintiff entrusted the claim papers to their recovery agents for recovering the claim amount from the defendants. The recovery agents sent a notice to the first defendant on 14.11.1996. But the defendants failed and neglected to satisfy the demand. Hence this suit has been filed for the abovestated reliefs. The averments in the written statement filed by the defendants are as follows: The first defendant is a proprietorship firm and the second defendant is a partnership firm. The first plaintiff imported two consignments of synthetic lining under a commercial invoice of M/s. Kabul Limited at US Dollar 43200 etc. are not within the knowledge of these defendants. The goods were loaded in two trucks M/s. Neptune Exports, Madras which were intended for door delivery to their counter part at New Delhi. The goods were entrusted to the first defendant for transportation to Delhi to be delivered at their premises. The goods were loaded for transportation to Delhi and before the goods could reach Delhi, the first plaintiff has requested the first defendant not to unload the goods at their premises as originally instructed by them since the first plaintiff did not have sufficient space to unload the goods and hence instructions were issued to the first and second defendant to keep the goods at New Delhi at the risk of the first plaintiff. The first plaintiff insisted that the goods that were despatched through M/s. Green Roadlines be kept at their Sanjay Gandhi Nagar godown at parties risk and with a view to maintain the good business relationship between the first plaintiff and the defendants the defendants agreed to do so. The first plaintiff ought to have taken delivery of the goods within two days as promised by the first plaintiff on its arrival at Delhi and before the first plaintiff could take delivery of the goods there was a fire mishap in the business godown of the second defendant due to electric short circuit and the goods which were lying at Sanjay Gandhi Nagar godown premises of the second defendant were almost burnt and lost its value. The goods that were secured after segregating the burnt goods, were transported back to Madras on instructions from M/s. Neptune Exports Madras and the goods which were in good condition were delivered to the first plaintiff and an amount of Rs.33,040/ - is due and payable to the defendants towards the freight charges. On instructions of the first plaintiff, the goods were retained by the second defendant at the risk of the first plaintiff and it cannot be said by any stretch of imagination that the second defendant had taken up the responsibility for any loss that may be caused to the goods and it is wholly and solely the responsibility of the first plaintiff. The second defendant reported to the fire service department and also to the Police immediately and also secured necessary certificate and the report as required after the fire accident. The second defendant was required to sign the letter at the instance of the first plaintiff on 30.4.1995 specifying that the goods were worth about Rs.24,74,796/ - to enable the first plaintiff to claim the value of the goods by way of insurance claim from the second plaintiff and the first plaintiff requested a letter in the letter head of the second defendant. Believing the first plaintiff, the second defendant had issued a letter dated 15.5.1995 in the manner required by the first plaintiff. The first plaintiff caused a registered notice to the first and second defendants demanding the payment of Rs.13,87,498/ - being the value of the consignment as compensation arising out of fire. The defendants informed to the first plaintiff that the first and second defendants are not liable to pay the value of the goods, since the goods were kept in their godown at the risk of the first plaintiff. As a matter of fact, the goods which were so transported through the truck of the first and second defendant reached destination, namely, New Delhi without any damage and the goods were received in a good condition at the godown premises of the second defendant at New Delhi. On instructions from the first plaintiff, the goods were kept in their godown at the risk of the first plaintiff. For having accepted to such a recourse, the plaintiffs are not entitled to call upon the defendants to pay jointly and severally a sum of Rs.26,83,125.50 with future interest being the alleged loss caused to their goods transported through them. The first plaintiff has not paid the freight charges amounting to Rs.33,040/ - with interest @ 18% p.a. from the date of delivery till the date of actual payment. Hence, the first plaintiff is liable to pay Rs.33,040/ - towards freight charges and Rs.21,806/ - towards interest and in all Rs.54,846/ -. Hence, the suit has got to be dismissed with costs.
(3.) ON the pleadings by the respective sides, the following issues were framed: 1. Whether the plaintiff are entitled for a decree for a sum of Rs.26,83,125.50/ -? 2. Whether the suit is not maintainable since the valid notice under Section 10 of the Carriers Act, 1865, was not issued? 3) Whether the plaintiff is liable to pay a sum of Rs.33,040/ - to the defendants as claimed by the defendants in the counter claim? 4) Whether the counter claim is barred by the law of limitation? 5) To what relief the plaintiff is entitled to?;