Delhi High Court
Maple Logistics Pvt. Ltd. vs Icici Lombard General Insurance ... on 19 December, 2014
Author: Sunil Gaur
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: December 19, 2014
+ RSA 369/2014 & C.M.APPLN.19733/2014
MAPLE LOGISTICS PVT.LTD ..... Appellant
Through: Mr. A.K. Babbar and Mr. Surendra
Kumar, Advocates
versus
ICICI LOMBARD GENERAL INSURANCE CO. LTD. & ANR
..... Respondents
Through: Ms. Suman Bagga, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
The concurrent finding returned by both the courts below is that
appellant-defendant carrier is liable to pay the damages for the shortfall in
the goods which appellant-defendant had carried for respondents, who
were the insurer and the consignee.
The factual matrix of this case is already noted in the opening
paragraphs of the impugned judgment and needs no reproduction. Suffice
it would be to note that the Surveyor had ascertained the loss to the tune
of `1,71,755/- and respondents-plaintiffs' suit was contested by
appellant-defendant and the findings returned by the trial court against
appellant-defendant are as under: -
RSA 369/2014 Page 1
"Issue No.4 & 5:
Both the issues are interlinked and they are decided
together. The onus of proving these issues was on the
plaintiffs who have claimed recovery of the shortage of goods
which have already been reimbursed to plaintiff No.2. In this
regard, it is important to note that the onus is on the
defendant to show that the loss or damage to the goods
carried by it was not because of their negligence and not vice-
versa. Section 9 of the Carriers Act, 1865 provides that it is
for the carrier to prove that there was no negligence on its
part in delivering the goods and it is not for the plaintiff to
prove the loss or damage or non-delivery of goods was
because of the negligence of the carrier. The only thing
plaintiff is required to prove is the loss and there is a
presumption of negligence against the carrier who has to
rebut the same. The loss has been duly proved as it is
admitted by DW-1 in his cross examination that there is a
shortage of scrap as mentioned in GR's Ex. PW-1/6 to Ex.
PW-1/11 which were issued by defendant. In GR Ex. PW-1/6,
there is a shortage of 1420 kg, in GR Ex. PW-1/7, there is a
shortage of 690 kg and in GR Ex.PW-1/11, there is a shortage
of 1305 kg. None of these is disputed by the defendant and
therefore, the onus shifts back on the defendant to rebut that it
was not because of negligence on the part of the defendant.
Plaintiffs have duly proved that there is a shortage of goods
suffered by the plaintiff No.2 by 3.460 MT and defendant has
RSA 369/2014 Page 2
failed to discharge the burden which was on the defendant."
At the hearing of this second appeal, learned counsel for appellant
had contended that in view of clause/condition No.8 in the Goods
Receipt, there is no liability of appellant-defendant to pay the damages
because the seals on the consignment in question were found to be intact
and since tampering is ruled out, therefore, the loss is due to
circumstances beyond the control of appellant-defendant.
It was vehemently urged by learned counsel for appellant that in
the impugned judgment, it has been erroneously held that even if the seals
on the consignments are intact, it would be immaterial as the loss is
established. Thus, it was submitted on behalf of appellant-defendant that
findings returned by both the courts below are erroneous and deserve to
be set aside and the suit of the respondents-plaintiffs ought to be
dismissed.
Upon hearing and on perusal of the judgment of the courts below
and the material on record, I find that it would be relevant to look at
clause/condition No.8 of the Goods Receipt, which is as under: -
"8. The company takes absolutely no responsibility
for delay and loss in transit due to accident, strikes, other
causes beyond its control and due to break down of vehicles
enroute and for consequences thereof."
Undisputedly, while carrying the stainless steel scrap, shortage of
3.460 MT was detected and Notice under Section 10 of the Carriers Act,
1865 was served and a complaint was lodged. On the strength of the
RSA 369/2014 Page 3
evidence on record, it has been concluded by both the courts below that
there was loss of goods in transit and there is no worthwhile challenge to
the concurrent findings returned to this effect.
As far as appellant taking shelter under Clause/Condition No.8 of
the Goods Receipt is concerned, this court finds that the causes beyond
control are the acts of God i.e. Earthquake, Cyclone, etc., and as per
Section 9 of the Carriers Act, 1865, the plaintiff is not required to prove
negligence on the part of the carrier and the burden of proof is squarely
upon the carrier.
In the considered opinion of this Court, the case of appellant does
not come within the ambit of Section 6 of the Carriers Act, 1865 as the
appellant does not come within the Exceptions as carved out by Section 6
of the Carriers Act, 1865. No substantial question of law arises for
consideration in this second appeal. The concurrent findings of facts are
not perverse. Resultantly, this appeal and the application are dismissed
while leaving the parties to bear their own costs.
The appeal and the application are accordingly disposed of.
(SUNIL GAUR)
JUDGE
DECEMBER 19, 2014
s
RSA 369/2014 Page 4
