- (1.) Not satisfied with the findings rendered by the Courts below in a suit for recovery of money, the defendant has filed the present Second Appeal.
(2.) From the materials available on record, it is seen that the first plaintiff is a factory manufacturing Metallised Polyester Films at SIPCOT Industrial Complex in Hosur and the second respondent is the Insurance Company. The defendant is a Parcel Service Transport Operator having its Head Office at Hosur with several branches at other places.
(3.) The case of the plaintiffs is that on 18.6.1992, the first plaintiff despatched a consignment of 88 Rolls of Metallised Polyester Film properly packed through the defendant at Hosur to be transported to New Delhi and to be delivered to their consignee M/s Kuwer Fibres Private Limited at Delhi.It is stated that on payment of necessary charges, the defendant carried the goods to Delhi and during the transport, out of the said 88 Rolls of Films, 16 numbers of rolls of the films were badly damaged due to the heavy rain and the same were delivered to the consignee on 25.6.1992. According to the plaintiffs, the said damage to the goods was due to the negligence of the defendant carrier. It is stated that though the consignment note No. 2043 dated 18.6.1992 guaranteed entrustment of the goods consigned in good order and condition, contrary to the said undertaking, the defendant carrier did not deliver the goods in good shape. It is also averred that as the defendant delivered the goods in a damaged condition, they are to make good the loss. The plaintiffs also through the help of an independent surveyor inspected and assessed the loss pertaining to the damaged goods on 01.7.1992 and 02.7.1992 and a report was submitted on 03.7.1992.The net loss after salvage was assessed at Rs.1,57,998.49 plus Survey fee of Rs.2388. The first plaintiff sent a letter on 26.8.1992 to the defendant demanding the above said sum for the loss of its goods. The same was received by the defendant on 28.8.1992 and the reply was sent on 02.9.1992 alleging that the goods were transported at the owner's risk.The first plaintiff had entered into a contract of insurance with respect to its consignment with the second plaintiff. In pursuance of the said contract of Insurance, the first plaintiff submitted the claim bill to the second plaintiff who settled the claim by paying a sum of Rs.1,68,386/-. Thereafter, the second plaintiff was subrogated with the rights of recovery of the first plaintiff as per letter of subrogation and Special Power of Attorney dated 31.3.1993. Though the rights of the first plaintiff had already been subrogated, the first plaintiff has joined the second plaintiff in filing the suit to avoid any technical defects.The first plaintiff also did not have any objection for a decree being passed in favour of the second plaintiff.Hence, the plaintiff has filed the suit for recovery of money.;