- (1.) This appeal by special leave against the judgment and order of the a. P. High court in Appeal No. 55 of 1989, decided on 1-11- 1994, would merit dismissal.
(2.) Elaborate facts are not necessary to be set out. For details, reference can be made to the judgments and orders of the courts below. Suffice for our purpose that five consignments of microwave antennas were despatched from Norway destined for Hyderabad en route Bombay by sea and onward to Hyderabad by road on lorries. Right from the beginning, the consignments were insured by the owner with the New India Assurance Company Limited, the appellant before us. Loading and unloading of the consignments for both modes of transport whether at the seaport at Norway or at the seaport at bombay or from Bombay or at Hyderabad was done by the owners or by others under his directions. The delivery of the consignments taken at hyderabad was smooth, inasmuch as no objection was raised by the owner to the carrier at that time as to the condition of the consignments. Five lorries had been employed for the purpose and the consignments were delivered on different dates between 29/8/1979 till 4/9/1979, whereupon the entire transaction was complete. The five packages were placed in wooden crates. On opening of the packages by the owner, the top layer of the goods in each consignment was found damaged. The owner approached the transport Company for factual support when the goods were found in that condition and the Transport Company readily lent such support. On claim laid, a surveyor was appointed by the Insurance Company, who vide his report, surmised that presumably the damage had taken place due to rough handling during discharge, by clamping the supporting tackles to the topmost reflector in each crate instead of to the wooden crate. It is thereafter that the owner could successfully claim the assured money from the appellant. Then in turn, the appellant-Insurance Company joining with it the owner, directed an attack on the Transport Company on the basis that as a carrier, it was negligent in transporting the consignments to the door of the owner at Hyderabad. The owner, however, during the progress of the suit filed for the purpose became almost a drop-out from the litigation, for he never came forward to support the case of the Insurance Company either by production of supportive evidence or by appearing himself in the witness- box. On the other hand, the Insurance Company could only produce two witnesses and none of them could further its case beyond a point to show how and when the damage had occurred, apart from the survey report above referred to suggesting the manner in which the damage could have occasioned.
(3.) The trial court decreed the suit against the Carrier-Transport Company. The carrier was directed to pay a sum of Rs 3,15,677.90 towards damages to the Insurance Company. The carrier took the matter in appeal before the high court of A. P. A division bench of that court reversed the judgment and decree of the trial court, which has given rise to this appeal.;