Container Corporatin Of India ... vs M/S Delhi Assam Roadways ...
2010 Latest Caselaw 5212 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                RFA No. 132/2005

                       Judgment delivered on: 16.11.2010

Container Corporation of India Ltd.              ..... Appellant

                Through:    Mr. S.C. Rajpal for the
                            appellant.

                     Versus

M/s Delhi Assam Roadways
Corporation Ltd.                        ..... Respondent

                Through: Mr. Manu Beri for the respondent.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Yes

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported
   in the Digest?                                       Yes

KAILASH GAMBHIR, J. Oral:
*

1. By this appeal filed under Order 41 Rule 1 and Section

96 of the Code of Civil Procedure, 1908, the appellant seeks

to set aside the judgment and decree dated 25 th October,

2004 passed by the Court of the learned Additional District

Judge, Delhi whereby the suit for recovery was decreed in

favour of the respondent.

2. Brief facts of the case relevant for deciding the present

appeal are that the respondent approached the appellant

company at its Bangalore office for transportation of 115

tyres for carriage to New Delhi. That the respondent alleged

that there was short delivery of 16 tyres in the said

consignment and on intimating the said fact to the appellant

there was a survey conducted by the appellant which report

stated that the delivery was made with seals intact and no

shortage was reported at the time of delivery by the

respondent. Consequently, the respondent served a legal

notice dated 21.8.2002 on the appellant, but on the failure to

pay the said amount of Rs.1,20,000 as price of 16 tyres, the

respondent filed a suit for recovery which vide judgment and

decree dated 25.10.2004 was decreed for an amount of Rs.

1,20,000 alongwith interest @ 12% from the date of notice.

Feeling aggrieved with the same, the appellant has preferred

the present appeal.

3. Counsel for the appellant submits that the respondent

had booked the consignment vide inland way bill No. 022181

"on said to contain basis" and, therefore, loading and

unloading of the goods was never supervised by the staff of

the appellant. Counsel further submits that the respondent

had never raised any protest at the time of the delivery of the

goods, which fact apparently would show that the goods were

not short delivered. Counsel for the appellant further submits

that no gate pass of the said consignment could be issued to

the respondent on 26th June, 2000 as the goods were received

by the appellant only on 27th June, 2000 and the delivery of

the same was taken by the respondent on 27th June, 2000.

Counsel for the appellant further submits that the learned

Trial Court has failed to consider the extracts of the cargo

gate register placed and proved on record by the appellant as

Exhibits DW 1/1 to DW 1/3, which clearly indicates that the

respondent had taken the delivery of the said goods on 27 th

June, 2000. In support of his arguments, counsel for the

appellant has placed reliance on the judgment of the Bombay

High Court in M/s Pawan Oil Industries vs. Union of India AIR

2006 Bombay 109. The contention of counsel for the

appellant is that when the containers reached intact and

there was no tampering or damage to the same, then there

could not have been any shortage of the goods, which were

loaded by the respondent itself being the consigner at the

place from where the goods were loaded. Counsel for the

appellant also submits that in the cross-examination the

respondent took various inconsistent stands by even denying

that the goods were not carried out by the appellant in three

containers but in two containers. The respondent also denied

to have booked the machine along with the consignment of

tyres besides denying the fact that the goods were taken in

five trucks. Counsel further submits that Exhibit PW- 1/10

was not proved on record by the respondent in accordance

with the law as no witness was produced by the respondent

from the company, who had issued the letter Exhibit PW

1/10. Counsel for the appellant further submits that the

respondent did not disclose in the plaint as to whether the

consignment was received with the original seal/intact seals

or with the tampered seals. Counsel further submits that no

replication was filed by the respondent to refute the

submissions of the appellant made in the written statement.

Based on these submissions, counsel for the appellant

submits that there is a clear illegality and perversity in the

order passed by the learned Trial Court and the same is liable

to be set aside.

4. Counsel for the respondent on the other hand submits

that the respondent had immediately informed the appellant

about the short delivery of the goods on 28 th June, 2000 with

clear reference to the said gate pass. Counsel further submits

that validity of the said gate pass was never questioned by

the appellant in reply to the said letter and it is for the first

time in its written statement such a false stand was taken by

the appellant. Counsel for the respondent has further placed

reliance on the copy of the survey report proved on record as

Exhibit PW- 1/7, which clearly shows that there was a short

delivery of 16 tyers. Counsel for the respondent further

submits that the said survey report was submitted by the

surveyor appointed by the appellant itself. Learned counsel

for the respondent further submits that the respondent had

reimbursed the cost of said 16 tyres to its customer and a

letter to this effect received from the customer of the

respondent was proved on record as Exhibit PW- 1/10.

5. I have heard learned counsel for the parties at

considerable length and have perused the records.

6. Counsel appearing for the appellant laid much emphasis

on the inland way bill No. 022181 proved on record as

Exhibit PW1/D1 to support his argument that the

consignment in question was booked by the respondent "on

said to contain basis". Perusal of inland way bill also

discloses the nature of the articles booked by the respondent

and loaded in the three containers, but nowhere it discloses

the quantity of tyres loaded in the packages stuffed in the

containers, therefore, the inland way bill does not give any

picture of the exact quantity of tyres booked and loaded by

the consigner i.e. the respondent herein.

7. The respondent in the suit has claimed short delivery of

16 tyres and the prime document on which the respondent

based its claim is the gate pass issued by the appellant at the

time of the delivery of the said consignment. The genuineness

of the said gate pass which was proved on record as Exhibit

PW 1/4, that indicates the delivery of 99 tyres on 26.6.2000,

has been strongly disputed by the counsel for the appellant.

The appellant has even disputed the correctness of vehicle

number mentioned in the said gate pass. Counsel for the

appellant has also claimed that there was no damage to the

parcels or tampering in the seals of the containers and,

therefore, there could not have been any possibility of any

kind of pilferage or shortage of the items loaded by the

respondent itself. No doubt these pleas raised by the

appellant carry much weight but such pleas in the absence of

any corroborated evidence cannot stand on a firm footing. It

was for the appellant to have produced the relevant records

to prove and establish the fact as to how many parcels were

off loaded on the date when the consignment had reached the

place of destination and then transported in various

trucks/lorries. It was also incumbent upon the appellant to

have produced a witness to prove that the parcels were intact

and there was no tampering with the seal of the containers.

In the absence of any such evidence led by the appellant, the

learned Trial Court rightly relied upon the gate pass proved

on record by the respondent as Exhibit PW 1/4. So far the

question as to whether the respondent had loaded 115 tyres

from Bangalore, it is suffice to mention that the survey

report proved on record as Exhibit PW 1/7 sufficiently proves

that in all 115 tyres were stuffed in the containers at Inland

Container Depot, Bangalore. The said survey report also

clearly specifies that the quantity, as per the lorry receipt,

were found to tally and thereafter the same were

acknowledged by the transporters and then the containers

were sealed in the presence of all concerned. It is pertinent

to mention here that the surveyors were appointed at the

instance of the appellant and, therefore, the appellant cannot

dispute the correctness of the said survey report. No

investigation report was placed on record by the appellant so

as to refute the claim of the respondent although the

appellant clearly took a stand that the matter was being

investigated into. Section 81 of the Railways Act, 1989, on

which reliance is placed by the counsel for the appellant is

not applicable to the facts of the present case. Section 81 of

the Railways Act envisages open delivery of consignments

where the consignment arrives in a damaged condition or

shows signs of having been tampered with whereas in the

present case the respondent had complained short delivery of

16 tyres but no such plea was taken by the respondent that it

took open delivery of the consignment. The judgment of the

Bombay High Court reported in M/s Pawan Oil Industries

(supra) is also of no help to the case of the appellant as in the

said case the consigner had not complied with the prescribed

packing conditions and the Railway receipt duly recorded

such non-compliance of the packing conditions by the

consigner while in the facts of the present case no such case

was set up by either of the parties.

8. In the light of the above discussion, I do not find any

perversity or illegality in the order passed by the learned

Trial Court.

9. There is no merit in the present appeal and the same is

hereby dismissed.

November 16, 2010              KAILASH GAMBHIR, J
rkr