- (1.) THE defendant has preferred the appeal challenging the judgment and decree dated 27.8.2002 made in O.S.No. 5905 of 1998 on the file of IV Additional Judge, City Civil Court, Chennai.
(2.) BRIEFLY, the case of the plaintiffs is that the first plaintiff purchased one Windsor Injection Moulding Machine with accessories from M/s. DGP Windsor India Ltd. under Invoice dated 14.8.1995 to the total value of Rs.54,76,185/- and the machine was loaded in two vehicles as provided by the defendant Common Carrier by Consignment Note dated 14.8.1995 for safe carriage by road and door delivery to the first plaintiff at Madras and the lorry carrying the Injection unit left on 14.8.1995 enroute Madras via Bangalore and on 20.8.1995, the lorry met with an accident at about 1.00 a.m. and the Injection Moulding Machine fell down and sustained extensive damage and on being notified about the accident, the second plaintiff as underwriter of the consignment, appointed an independent surveyor, who issued a preliminary survey report dated 26.8.1995, and the consignor's representative also certified that the unit be sent back to the manufacturer for appropriate assessment of the damage sustained and for rectification and repair. It is further stated by the plaintiffs that the further survey was conducted and the survey report dated 15.10.1995 was issued and after carrying out repairs and reconditioning, the machine was sent through another carrier to Madras under Consignment Note dated 26.10.1995 at a cost of Rs.35,560/-, being the freight charges. According to the plaintiffs, the transportation charges from the accident spot at Bommasandra to Thane including the crane hire charge works out to Rs.42,500/- and on 15.12.1995, the defendant Common Carrier issued a certificate acknowledging the damage sustained by the consignment, which was in its custody, while in transit. It is further stated by the plaintiffs that on 3.1.1996, the first plaintiff sent a figured notice of loss / claim to the defendant by registered post acknowledgement due and the same was served under Postal Acknowledgement Card on 10.1.1996. According to the first plaintiff, it sustained a pecuniary loss of Rs.8,04,577.23/- as a result of negligence on the part of the defendant and the defendant is obliged to make good the loss. It is further stated by the plaintiffs that the suit consignment was insured with the second plaintiff for transit risk and on receipt of a claim bill from the first plaintiff, it was indemnified by the second plaintiff by paying a sum of Rs.8,18,602/-, which includes the survey fee, and by virtue of the said settlement under the policy of insurance, the second plaintiff is entitled to file and maintain the suit against the defendant on its own name and to avoid any technical defence, the suit is filed by both the plaintiffs. It is further stated in the plaint that the second plaintiff after settlement entrusted the claim papers to its recovery agent M/s. V.N.C. Narichania (P) Ltd. and the recovery agent lodged a claim on 22.8.1996 with the defendant's administrative office at Bombay and a reply dated 9.1.1997 was sent by the defendant through its advocates denying its liability and again, the matter was taken up with the Carrier through its Claim Protection & Financial Indemnity Corporation and the defendant offered a sum of Rs.30,000/- at the first instance in full settlement and that was rejected by the plaintiffs and again, it offered a sum of Rs.40,000/- and that was also not accepted and hence, the plaintiffs have filed the present suit seeking for a judgment and decree directing the defendant to pay the second plaintiff a sum of Rs.8,04,577/- with interest at 18% per annum from the date of suit till realisation and for costs. The defendant filed written statement denying the suit claim and stated that the suit is not maintainable for want of territorial jurisdiction since no part of the cause of action has arisen within the jurisdiction of the trial Court. It is further stated that the suit is liable to be dismissed as barred by the law of limitation. According to the defendant, the suit is liable to be dismissed since no statutory notice as required under Section 10 of the Carriers Act was given by the plaintiffs to the defendant and the alleged subrogation is invalid in law and not binding on the defendant and the Power of Attorney is also not valid since there is no right of subrogation and the second plaintiff has no privity of contract with the defendant to maintain the suit and the plaintiff has no title to the goods and it cannot maintain the suit. It is further stated by the defendant that there was no damage to the consignment and no survey was conducted and the alleged survey said to have been conducted by the plaintiff was without notice or knowledge of the defendant and it cannot be admitted in evidence as against the defendant and the suit is liable to be dismissed. The trial court framed five issues and the plaintiffs examined P.Ws.1 and 2 and marked Exs.A1 to A26 on their side and the defendant examined D.W.1 and no document was marked on its side. The trial court, on a consideration of oral and documentary evidence, held that the plaintiffs have proved the suit claim and the defendant is liable to pay a sum of Rs.7,62,077/- to the second plaintiff and granted the decree for the said sum together with interest at 18% per annum from the date of plaint till the date of decree and further interest at 6% per annum from the date of decree till realisation. Challenging the judgment and decree, the defendant has preferred the present appeal. For the sake of convenience, in this judgment, the parties are referred to as arrayed in the suit.
(3.) THE points for determination in the appeal are - (1) Whether the suit is not maintainable for want of territorial jurisdiction. (2) Whether the plaintiffs have substantiated their claim and are entitled for the relief sought for. POINT No.1: The learned counsel appearing for the appellant/defendant submits that the consignment was entrusted with the defendant for safe carriage by road and door delivery to the first plaintiff at Madras and the defendant in Ex.A3 Consignment Note has stated 'Subject to Bombay Jurisdiction' and the accident took place at Bommbasandra in Bangalore - Hosur National Highway, 17 kms. away from Bangalore and no part of cause of action has arisen within the jurisdiction of the Court at Madras and hence, the suit is not maintainable.;