Telangana High Court
A.B.C.India Ltd.Secbad. vs New India Insurance Co.Ltd.Hyd.And Anr on 23 April, 2024
* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
+ S.A.No.43 OF 2003
% 23.04.2024
# Between:
M/s. A.B.C. India Limited
Appellant
Vs.
M/s. New India Insurance Company
Limited and another
Respondents
! Counsel for Appellants : Sri Hari Sreedhar
^ Counsel for Respondents : Sri Kota Subba Rao
<GIST:
> HEAD NOTE:
? Cases referred :
1. AIR 1997 Supreme Court 1923
2. 1993 ACJ 616
3. (2007) 1 Supreme Court Cases 546
4. 2023 Live Law (SC) 821
2
MGP, J
sa_43_2003
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
SECOND APPEAL No.43 OF 2003
JUDGMENT:
This Second Appeal is filed by defendant challenging the judgment and decree dated 29.07.2002 passed in A.S.No.215 of 2001 on the file of the learned Chief Judge, City Civil Court at Hyderabad, confirming the judgment and decree dated 23.04.2001 passed in O.S.No.4836 of 1998 on the file of the learned Junior Civil Judge, City Civil Court, Hyderabad. Thus, the present Second Appeal is filed against the concurrent findings of trial Court as well as first Appellate Court.
2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.
3. The brief facts of the case, which necessitated the appellant/defendant to file the present appeal, are as follows:
a) The plaintiffs filed O.S.No.4836 of 1998 against defendant for recovery of Rs.44,605/- towards damage of the consignment of picture tubes. The brief averments of the plaint are as under:
i) Plaintiff No.2 purchased 320 colour picture tubes valued at Rs.14,31,197.82 paise and the same was entrusted by M/s.3
MGP, J sa_43_2003 JCT Electronics to the defendant for carriage and to deliver the consignment in good condition from Chandigarh to Hyderabad but damage occurred to 18 colour picture tubes. The defendant had not taken proper care and caution while transporting. Immediately Plaintiff No.2 informed the defendant about the damage and a notice was also issued. After receipt of the notice, the defendant issued damage certificate dated 15.12.1995 stating that 18 colour picture tubes were delivered in damaged condition.
ii) The plaintiff No.2 has appointed a surveyor to assess the damage and submitted the report on 09.12.1995. The plaintiff No.1 settled claim of the plaintiff No.2 for a sum of Rs.36,579/- on 01.01.1996 and obtained valid receipt. In consideration of the settlement the plaintiff No.2 also executed a letter of subrogation and Special Power of Attorney in favour of the plaintiff No.1 transferring all their rights authorizing to file a suit against the defendant. In pursuance of the letter of subrogation and special power of attorney the plaintiff No.1 is authorized to file the present suit against the defendant for recovery of the damaged consignment. The plaintiff No.1 received acknowledgment of the registered letter from the defendant. Hence, the present for recovery of Rs.44,605/-. 4
MGP, J sa_43_2003
b) In reply to the plaint averments, the defendant filed written statement denying the plaint allegations and the brief averments of the written statement are as under:
i) The defendant denied that it had not taken proper care and caution while transporting the consignment and in fact the defendant is no way concerned with the reasons for the damage.
The receipt of letter issued by the plaintiff No.2 on 03.06.1995 and damage certificate issued by the defendant is also false. The damage certificate was issued on 15.12.19963 after a long gap of more than six months. In case any letter was addressed by the plaintiff that was done in the month of December but not as stated on 03.06.1995. The transaction will fall under the law covered by Indian Carriers Act and Accordingly to Section10 of the Act, a notice within a period of six months from the date of incident is a must. No notice was served under Section 10 of the Carriers Act.
ii) The defendant is not a party to the said survey and the survey was done after six months in the absence of the defendant is placed before the Court. There was no damage caused due to negligence of the defendant. There is no cause of action for the suit and there was no payment of any money 5 MGP, J sa_43_2003 towards damage by this defendant to plaintiff No.2, hence, prayed to dismiss the suit with exemplary costs.
c) During the court of trial, on behalf of plaintiff, PW1 was examined and Exs.A1 to A12 were marked. On behalf of defendant, DW1 was examined but no documentary was adduced.
d) The trial Court after considering the rival contentions, decreed the suit in favour of plaintiff against the defendant for a sum of Rs.44,605/- with subsequent interest @10% per annum from the date of suit till the date of realization. Aggrieved by the judgment and decree, the defendant filed the appeal before the learned XIV Additional Chief Judge, City Civil Court, Hyderabad vide A.S.No.215 of 2001, which was also dismissed on 29.07.2002. Aggrieved by the concurrent finding given by the trial Court as well as first appellate Court, the defendant has filed the present appeal to set aside the impugned judgments.
4. Heard both sides and perused the record including the grounds of appeal.
5. The substantial question that was raised by the defendant before this Court is that whether the trial Court as 6 MGP, J sa_43_2003 well as first appellate Court justified in holding that the insurance company can file the suit against the common carrier even in the absence of notice as mandatorily promised for under Section 10 of the Carriers Act. In support of the said contention, the learned counsel for the defendant relied upon a decision in P. Rama Rao v. P. Nirmala and others 1. Per contra, in National Insurance Company Limited and another v. Om Prakash Poddar 2 the High Court of Judicature at Calcutta observed as under:
"7. It will be seen from the aforesaid section that a suit as against a common carrier is barred for the loss of, or injury to goods without giving him a notice as prescribed. The present suit, however is not a suit directly for loss of, or injury to goods, but is a suit by an insurer which has arisen by reason of such loss or injury. Significantly the words of S. 10 do not cover suits which are only in relation to the loss of, or injury to goods, but the express words of the section only cover those direct primary suits which are themselves for the loss of, or injury to the goods."
6. In Asseemm Logistrics v. DARCL Logistics Limited and another Absolutely there is no doubt that the Carriers Act, 1865 vide Section 10 provided that no suit shall be instituted against the common carrier for the loss of, or injury to, goods including containers, pallets or similar articles of transport entrusted for carriage, unless a notice in writing for such loss of injury is given before the institution of the suit within six 1 AIR 1997 Supreme Court 1923 2 1993 ACJ 616 7 MGP, J sa_43_2003 months of the loss coming to the knowledge of the plaintiff. Now, the question to be adjudicated is whether the plaintiffs have issued notice as required under Section 10 of the Carriers Act to the defendant.
7. As seen from the evidence of Administrative Officer of plaintiff No.1, who was examined as PW1, the driver of defendant endorsed regarding the damage of tubes under Ex.A4 and plaintiff No.2 issued notice to the defendant on 03.06.1995 about the damage of the consignment. The plaintiff also appointed J.P. Boda to investigate the facts of the case as surveyor, who submitted a report under Ex.A7.
8. It is the contention of the plaintiffs that notice under Section 10 of the Carriers Act was issued to the defendant under Ex.A5. A perusal of Ex.A5, it is clear that notice under Section 10 of the Carriers Act was issued by the plaintiffs to the defendant. On the other hand, as can be seen from the cross examination of PW1, it is the contention of the defendant that there is no seal on Ex.A5, as such it is fabricated document. The trial Court in the judgment at paragraph No.9 observed that there was no specific denial of the contents of Ex.A5. It is also the contention of the defendant that Ex.A5 was issued in 8 MGP, J sa_43_2003 the month of December and not on 03.06.1995 and in reply the trial Court observed that the defendant has not taken any steps to disprove the documentary evidence of Ex.A5. It is pertinent to mention that the defendant has admitted about the issuance of damage certificate dated 15.12.1995, which also do not have the seal. It is specific contention of the defendant that the signature on Ex.A5 does not belong to his employee. If such is the case, the defendant ought to have submitted list of the employees working under it in order to establish that there is no such person, who has subscribed his signature on Ex.A5, working under it during the relevant point of time. But there is no such instance. Except giving suggestions that the plaintiffs have not issued the notice as mandated under Section 10 of the Carriers Act, there is no material placed by the defendant either before the trial court or first appellate court. Mere assertions are not sufficient to establish a particular contention. Thus, the contention of the defendant that Ex.A5 cannot be accepted in view of lack of its seal, is unsustainable.
9. From the above discussion, though the defendant denied to have received notice as mandated under Section 10 of the Carriers Act, it is amply clear that plaintiff has issued notice under Section 10 of the Carriers Act under Ex.A5 to the 9 MGP, J sa_43_2003 defendant.
10. As can be seen from Ex.A4, the driver of the defendant has endorsed that 18 colour picture tubes were delivered in damaged condition. However, the defendant contended that there is no negligence on the part of the driver of the defendant in causing damage to the consignment. It is pertinent to note that when the defendant is denying negligence on the part of his driver, then the defendant has to establish the same. But in the case on hand, except examining DW1, there is no material to establish the case of the defendant in denying the claim of the plaintiff.
11. There is no dispute that the consignment was issued by plaintiff No.2 to the defendant. There is also no dispute that out of 320 colour tube pictures, 18 colour tube pictures were delivered in damaged condition. As rightly observed by the first appellate court in the impugned judgment, once some of the goods were delivered in damaged condition, it is the defendant, who has to explain as to what was the reason for delivering the goods in damaged condition. Though DW1 was examined on behalf of the defendant, he has no personal knowledge with regard to the delivering goods to the plaintiff No.2 in damaged 10 MGP, J sa_43_2003 condition. The first appellate Court in the impugned judgment at page No.7 observed that when once, it is proved that the goods entrusted to the carrier were damaged during the transit and there is no evidence on the side of the defendant that the damage was not due to their negligence, in view of the Sections 8 and 9 of the Carriers Act, 1996, the damage was caused due to the negligence of the carriers and the carrier shall be liable to the owner for the loss or damage to any property delivered to such carrier.
12. As per the report of the surveyor under Ex.A7 chemicals from other cargo spilled on 20 colour picture tubes and due to the spillage of the chemicals, the damage was caused to the picture tubes. The defendant has issued damage certificate under Ex.A6 dated 15.12.1995 to plaintiff No.2 wherein it was stated that at the time of the delivery of goods, 18 colour picture tubes were damaged due to the spillage of the chemicals spread on the same and one picture tube is in broken condition. The defendant has not denied Ex.A6.
13. A perusal of the record discloses that both the Courts below concurrently held that the plaintiffs have established their claim. Though the learned counsel for appellant vehemently argued that 11 MGP, J sa_43_2003 the trial Court decreed the suit without proper appreciation of the evidence and the first appellate Court also committed an error in confirming the judgment and decree passed by the trial Court, in fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 of the Code of Civil Procedure. It is well settled principle of law by a catena of decisions of the Honourable Supreme Court that in the Second Appeal filed under Section 100 of the Code of Civil Procedure, this Court cannot interfere with the concurrent findings arrived at by the trial Court and first Appellate Court that are based on proper appreciation of the oral and documentary evidence on record. Further, in Gurdev Kaur v. Kaki 3, the Honourable Supreme Court observed that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration. In Suresh Lataruji Ramteke V. Sau. Sumanbai Pandurang Petkar and others 4 the Honourable Supreme Court observed as under:
3 (2007) 1 Supreme Court Cases 546 4 2023 Live Law (SC) 821 12 MGP, J sa_43_2003 "16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Alireferring to various other cases held:-
a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse.
b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity.
c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.
17. Jurisdiction under second appeal not to be exercised merely because an alternate view is possible. It was observed in Hamida v. Mohd. Khalil:
7. ...The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible."
This position was reiterated by Avtar Singh & Ors. v. Bimla Devi & Ors. In aid of such a restricted application, an essential aspect in ensuring that it does not acquire the nature of a "third appeal" is the limited possibility of appreciation of evidence and connectedly, the restriction on upturning concurrent findings of fact. However, there are certain exceptions to the rule as pointed out by this Court in Nazir Mohamed v. J. Kamala, as under:
"33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognised exceptions are where: (i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
17.2 The extent of the same may be underscored by the observation that:
"32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. 13 MGP, J sa_43_2003 Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar , AIR 1963 SC 302] . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter."
14. In view of the principle laid down in the above said decisions and having considered the rival contentions and entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellants are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
15. In view of the above facts and circumstances, this Court do not find any merits in the appeal to set aside the impugned judgment and in fact, the trial Court has elaborately discussed all the aspects and arrived to a proper conclusion.
16. In the result, this appeal is dismissed. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Date: 23.04.2024 Note: LR Copy to be marked.
B/o. AS