INDIAN AIRLINES Vs. KURIAN ABRAHAM

JUDGEMENT

(1.) An interesting question regarding the interpretation of the word 'wilful misconduct' and the question of burden of proof arises for consideration in this appeal.

(2.) The defendant, who suffered a decree at the hands of Sub Court, Kochi is the appellant. The parties and facts are hereinafter referred to as they were available before the court below.

(3.) The facts are not in dispute. The plaintiff had entrusted five cartons of curcuma powder of 10 kg. each to the first defendant to deliver to M/s. Proquimao Color S.A. C/o. Solsona-42, E-08227 Terassa, Barcelona, Spain. The first defendant was an agent and the second defendant was the carrier. At the delivery end, it was found that one of the cartons was missing. Short delivery of one carton was confirmed by the defendants. As a result of the deficiency in quantity, the consignee refused to accept delivery. Apart from the cost of the article, the plaintiff had to pay 805 U.S. Dollars towards demurrage charges. 108.51 U.S. Dollars were incurred for other expenses. The plaintiff suffered loss due to the non-acceptance of the goods by the consignee due to the shortage in quantity. The plaintiff suffered a damage of Rs. 10,000/- on that count. On the basis of the above claim, the suit was laid for a sum of Rs. 48,990/-.