- (1.) This Appeal is filed challenging the judgment and decree Dt. 31-01-1997 in O.S. No. 400 of 1990 of the III Additional Subordinate Judge, Visakhapatnam. The appellant is defendant in the suit. Three consignments viz. (1) one 250 KVA diesel Welding generator set and silencer (2 Nos. ), (2) one 250 KVA diesel welding generator set and accessories (5 Nos. ) and (3) one 250 KVA diesel welding generator set and silencer (2 Nos. ) were entrusted to the defendant by 1st plaintiff/1st respondent hereon on 25-07-1997 and 28-07-1987 for safe carriage from Visakhapatnam to Nagothane, Maharashtra for ultimate delivery to M/s. I.P.C.L., M.G.C. Complex, Nagothane. The defendant accepted the consignments and issued consignment Note Nos. 580 and 581 Dt. 25-07-1987 and 589 Dt. 28-07-1987. The said consignments were insured with the 2nd respondent/2nd plaintiff under policy No. 51300/OPL/00003/86. The consignments were dispatched by plaintiff by truck Nos. MWT-4356, MWU5119 and MWC-4135, but they were received by the consignee in a damaged condition on 29-07-1987, 29-07-1987 and 03-08-1987 respectively. At the instance of 2nd respondent, a survey was conducted and the Surveyor submitted reports Exs. A-1, A-7 and A-9 stating that the damage was due to rough handling and transit jolts/jerks and the consignments had no external packing. The survey reports stated that the damage was only Rs. 37,473/-, Rs. 59,367/- and Rs. 31,257/-. The defendant issued Exs. A-11 to A-13 stating that goods arrived in a damaged condition at the destination.
(2.) The 2nd respondent had settled the claims of 1st respondent and also effected payments for the above amounts. Under a letter of subrogation Ex. A-3 Dt. 11-12-1989, it became subrogated to the rights of 1st respondent.
(3.) In spite of repeated demands, as the appellant/defendant did not pay the amount, the 1st respondent issued a notice Ex. A-2 Dt. 30-10-1987 in terms of Section 10 of the Carriers Act, 1865 and then filed the suit for recovery of a sum of Rs. 1,28,367/- from the defendant.;