M/S.D.H.L. Express (India) ... vs M/S.Sri Manikandan Enterprises
2021 Latest Caselaw 10631 Mad

                                                                                          A.S.No.297 of 2018

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                          RESERVED ON          : 08.01.2021

                                        DATE OF DECISION : 26.04.2021

                                                     CORAM

                                   THE HONOURABLE MR.JUSTICE T.RAJA

                                                       AND

                          THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                                 A.S.No.297 of 2018

            1.M/s.D.H.L. Express (India) Private Limited,
              Plot No.12-B, South Phase,
              Guindy Industrial Estate,
              Guindy, Chennai – 32.

            2.M/s.D.H.L. Express (India) Private Limited,
              8th floor, Dheeraj Arma,
              A.K.Marg, Next to Bandra Court,
              Bandra Fast, Mumbai – 400 051.                              .. Appellants

                                                    Versus

            M/s.Sri Manikandan Enterprises,
            Rep. By its Proprietor S.Sarangapani,
            5, Devarajamudali street,
            Chennai – 3.                                                        .. Respondent


            Prayer: First Appeal has been filed under Section 96 of the Code of Civil Procedure, 1908,

            against the judgment and decree 16.08.2017 passed in O.S.No.11101 of 2010 by the XIX

            Additional Judge, City Civil Court, Chennai.
                                For Appellants               : Mrs.Chitra Sampath, SC,
                                                             for M/s.NVS & Associates

                                For Respondent               : Mrs.Rita Chandrasekaran
                                                             for M/s.Aiyar & Dolia
http://www.judis.nic.in


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                                                         JUDGMENT

(Judgment of the Court was delivered by T.RAJA, J.)

The defendants in the suit are the appellants and the plaintiff in the suit is the

respondent. The defendants/appellants have filed this appeal challenging the impugned

judgment and decree passed by the learned trial Court directing to recover a sum of

Rs.17,30,925/- from them with future interest at 9% per annum from the date of plaint till

the date of realization with costs.

2. For the sake of convenience, the parties will be referred to as arrayed in the

original suit.

3. Mrs.Chitra Sampath, learned Senior counsel for the defendants/appellants,

submitted that the plaintiff/respondent herein has been in the business of manufacturing

Human Hair Remi Single Drawn and exporting the same to foreign countries for the past

25 years. The plaintiff company entrusted the shipment to the first defendant on

24.06.2009 and the said shipment was intended for M/s.Cabelo Natural Importacao E

Exportacao, LDA, Travessa Engracia, Fragoso Predio No.22 3 Andar, Ingombota, Luanda,

Angola. The shipment was delivered to the destination described in the Airway Bill by the

first defendant/DHL and therefore, there was no negligence in handling the cargo by their

agents or staff. Even if it is proved that any liability could be fastened on the defendant, http://www.judis.nic.in

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the same is subject to the provisions of the Carriage by Air Act, 1972 (in short “the Act”)

and the plaintiff is bound by the terms and conditions mentioned in the Airway Bill.

Moreover, the plaintiff has not impleaded the consignee, namely, plaintiff's

customer/Cabelo Natural Importacao E Exportacao, in Ingombota, Luanda, Angola, and

DHL, Angola, therefore, the suit itself suffers from non-joinder of necessary parties.

Although this issue was taken up, it remained unanswered by the learned trial Court.

4. Arguing further, learned Senior counsel contended that the transaction between

the consignor/plaintiff and the DHL/defendants is bound by the requirements of the

Carriage by Air Act, 1972, as applicable for international carriage, read with Schedule II as

per Section 4 of the Act, which contains the Rules as per Hague Protocol, which was an

amendment to the Warsaw Convention. When the defendant is the carrier and the plaintiff

is the consignor and both of them being signatory to the Hague protocol, they are bound

by Schedule II as mentioned in Part 2 of the Annexure to the Act. When India adopted the

Warsaw Convention, Hague Protocol and Montreal Convention fully, as per Rule 5 of

Schedule II, every carrier has a right to require consignor to accept the Airway Bill. As per

Rule 11 of Schedule II, the Airway Bill is prima facie evidence of conclusion of contract.

Therefore, the Airway Bill has been signed and filed by the plaintiff and hence, they are

bound by the contract. Whileso, any reliance on the Carriers Act, 1865, by the learned trial

Court to determine the liability is inapplicable and erroneous, hence, the same is liable to

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be interfered with by this Court. Learned trial Court in paragraph No.8 of the judgment

held that the Airway Bill is not a contract and by disregarding Rules 5 and 11 of Schedule

II, learned trial Court has wrongly placed reliance on Section 9 of Carriers Act, 1865, that

has no application to the suit transaction. When the Airway Bill is valid and binding

document/agreement on both parties, the plaintiff company cannot wriggle out of its

responsibilities. Placing reliance on the Airway Bill and taking support of the judgment in

the case of Bharathi Knitting Vs. DHL Worldwide Express Courier Division of Airfreight

Limited [AIR 1996 SC 2508] holding that Airway Bill is a binding contract between the

carrier and the consignor and therefore, the parties are bound to the limitation of liability

mentioned in the terms and conditions of the Airway Bill, it is argued that any reference to

invoice has no relevance in determining the dispute of the present suit.

5. Coming to the next issue that no evidence was led by the plaintiff to prove

quantum of loss suffered, learned Senior counsel argued that the burden of proof is on the

plaintiff to prove his case when the suit itself filed claiming compensation. When the

plaintiff has to stand on his own leg, he cannot pick holes in the case of the defendants. In

this regard, taking support of a decision of the Hon'ble Apex Court in the case of Sayed

Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas

Committee and Others [Manu/SC/0650/2004], learned Senior counsel argued that the

plaintiff has to proceed or succeed on the strength of his case/her case, not on the weakness

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found in the case of the defendant. For the same proposition, referring to another decision

in the case of Rangammal Vs. Kuppuswami and others [MANU/SC/0620/2011], learned

Senior counsel argued that the plaintiff cannot proceed on the basis of weakness of the

other party. Whileso, in the present case, when the first defendant/DHL has not received

any correspondence from the plaintiff about the short delivery of goods as they have not

produced any evidence except the alleged letters from DHL Angola who has not been

made a party to the suit, and more particularly, no quantification has been made even in

such alleged letters by DHL Angola, it is the bounden duty of the plaintiff to prove the

actual loss and before the learned trial Court, the plaintiff has relied on a judgment of the

Hon'ble Division Bench of this Court in the case of Singapore Airlines Cargo Private

Limited Vs. M/s.HCL Info Systems Limited, New Delhi and others [(2017) 6 MLJ 211],

wherein the plaintiff was the owner of the goods and there was a notice of short delivery

and production of a certificate of short delivery to quantify its loss in the suit. But, in the

present case, no such certificate of short delivery has been produced and the plaintiff has

not proved the quantum of loss of 2 boxes under consignment bearing AWB

Nos.1036375281 and loss of 2 boxes and partial loss in the third box bearing AWB

No.1036375270 respectively. When the plaintiff has not proved or substantiated the value

of actual loss, the impugned judgment holding that the plaintiff is entitled to recover a sum

of Rs.17,30,925/- from the DHL with future interest @ 9% per annum from the date of

plaint till the date of realization with costs is untenable and unjustified.

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6. Continuing further, learned Senior counsel argued that even if Airway Bill is

taken as a contract between the parties, the plaintiff company cannot wriggle out of the

contract and the Airway Bill is binding on the parties, inasmuch as Airway Bill is a

standard form of contract as per Rule 8(c) and Rule 22(2) of Schedule II of the Carriage by

Air Act, 1972. It is further argued that to claim the value of the goods, a special declaration

is to be made in the Airway Bill, for which, supplementary charges are to be paid. But, in

the present case, no such charge has been paid and this is against Rule 22(2) of the Act,

therefore, the plaintiff is not entitled to recover the alleged value, as the alleged value is not

equal to the actual value declared for carriage and it is only a customs value. When the

declared value for carriage has been mentioned as NVD (No Value Declared), in view of

such non-disclosure, the defendants liability are limited by Rule 22(2), hence, the liability

of the defendants/DHL is limited to 250 Gold Francs or USD 20 per kilogram.

7. Concluding the arguments, learned Senior counsel relying on a decision of

Hon'ble Delhi High Court in Air India Vs. Tej Shoe Exporters Private Limited and

Others [2014 (1) Delhi 484], submitted that in the said decision, the plaintiff/Tej Shoe did

not declare the value of the goods in the Airway Bill, but, rather, only the value of customs

was declared and therefore, it is held that since the liability of carrier is limited by Rule 22,

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the scope of this Rule cannot be enlarged even by Courts as per legislative intent and that

what is available in Rule 22 is the maximum liability. In this case, it is explicitly admitted

by one S.Kandavel, proprietor of plaintiff company in his cross-examination that no

insurance was obtained and no special value was declared and that no amount was paid

towards the declared value of the cargo. It is further argued that against the decision in Tej

shoe's case (cited supra), when SLP was preferred, the same was also dismissed by the

Hon'ble Apex Court and this was reported in MANU/SCOR/20086/2014. Hence, based on

the above said ratio, even if 117 kgs. is taken on record as given by the plaintiff, then the

liability of the defendants will be 117 kgs x 20 USD x 64.17 (rate of INR) = Rs.1,50,157.80/-.

However, ignoring this aspect, learned trial Court has wrongly awarded Rs.17,30,925/-

with future interest @ 9% per annum from the date of plaint till the date of realization with

costs, which works out to Rs.30 lakhs, which is unjust enrichment and against the

provisions of the Act. In the meanwhile, based on the orders passed by the Hon'ble

Division Bench, the defendants/appellants deposited a sum of Rs.21,80,912/- and thereafter,

the plaintiff has also withdrawn Rs.10 lakhs. When the liability of carrier is limited by

Rule 22 and it is settled law that the scope of this Rule cannot be enlarged even by Courts

as per legislative intent, the conclusion reached by the learned trial Court by holding that

by virtue of Section 9 of the Carriers Act, 1865, no proof is required and thereby ordering

of payment to the plaintiff, is erroneous, therefore, the same is liable to be set aside.

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8. Per contra, Mrs.Rita Chandrasekaran, learned counsel for the plaintiff/respondent,

submitted that the plaintiff is in the business of manufacturing Human Hair Remi Single

Drawn and exporting the same to the foreign countries for the past 25 years. The plaintiff

company is considered as one of the very reputed companies and it is known for its quality

and prompt delivery of goods as per the contracted schedule. Whileso, the plaintiff had

entrusted a shipment to the first defendant on 24.06.2009 under the consignment bearing

Airway Bill No.1036375281 and the said shipment was intended for M/s.Cabelo Natural

Importacao E Exportacao, LDA, Travessa Engracia, Fragoso Predio No.22 3 Andar,

Ingombota, Luanda, Angola. As per the invoice, total value of the goods is USD 20250 @

USD 225.00 per kg. for total gross weight 97.200 kgs. and net weight 90 kgs. The goods

were shipped in 4 boxes; 2 boxes containing 45 kgs. reached the destination mentioned in

the Airway bill, but, the remaining 2 boxes containing 45 kgs. did not reach the

destination. The consignee, to whom the goods were shipped, on coming to know about

the status of partial shipment, sent a complaint to M/s.DHL Express, Angola, local DHL

Customer Service Coordinator. Subsequently, vide letter dated 12.04.2009, the Customer

Service Coordinator of DHL Express Angola acknowledged the inability to locate the

shipment and thereby it has declared it as partial loss. In the said letter, it is further stated

that any refund or credit will be done by DHL in India to the shipper, namely, the plaintiff.

Based on the said letter dated 12.04.2009 acknowledging the inability to locate the shipment

and also declaring partial loss, the plaintiff lodged a claim for USD 10125 being the

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compensation for the loss of 45 kgs. of Human Hair Remi Single Drawn product.

However, no progress has taken place. Although they are duty bound to deliver the air

shipment to the buyer at Angola intact, unfortunately, till date the defendants/DHL failed

to discharge their obligation.

9. Continuing further, Mrs.Rita Chandrasekaran, learned counsel, submitted that

again, the plaintiff sent another shipment for the same buyer, namely, M/s.Cabelo Natural

Importacao E Exportacao, LDA, Travessa Engracia, Fragoso Predio No.22 3 Andar,

Ingombota, Luanda, Angola, under the consignment bearing Airway Bill No.1036375270,

dated 26.06.2009, and as per the invoice dated 09.06.2009, the total value of the product is

USD 31500 @ USD 350.00 per kg. and the goods were sent in 3 boxes, each box contains 30

kgs., but, box Nos.1 and 2 weighing 72 kgs. were missing. Therefore, on coming to know

missing of two boxes, the plaintiff's buyer contacted the customer care coordinator of DHL

Express, Angola, who, in turn, vide letter dated 12.07.2009, acknowledging the inability to

locate the shipment, further stated that DHL India would settle the claim and refund will

be credited to the shipper directly, namely, M/s.Sri Manikandan Enterprises, the

plaintiff/respondent herein. Since the status of the shipment would not be tracked and the

shipment has not been located till date, it shows reckless gross negligence and mishandling

on the part of the defendants/DHL in not taking sufficient care to deliver the goods to the

consignee and thus, it has resulted in breach of trust among the foreign buyers. Therefore,

the limits of liability specified in Rule 22 of the Act shall not apply in the present case, even

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if it is proved that the damage resulted from an act or omission of the carrier, his servants

or agents, done with intent to cause damage.

10. Relying on a decision of this Court in Singapore Airlines Cargo Pvt. Ltd.,

Chennai, Vs. M/s.HCL Info Systems Limited and others [(2017) 6 MLJ 211], learned

counsel for the plaintiff/respondent submitted that in the said decision, while dealing with

similar argument that it is for the plaintiff/consignor to prove whether there is willful

negligence on the part of the carrier, it is held that the burden of proving the absence of

negligence and willful misconduct is only on the part of the carrier who has to prove the

absence of misconduct by valid and satisfactory evidence, which the carrier has miserably

failed to discharge. Applying the same ratio, if the case of the defendants/DHL is looked

into, as could be seen in paragraph Nos.13 and 14 of the written statement and also in the

letter dated 12.07.2009 of the DHL Express, Angola/Ex.A14, they have acknowledged their

inability to locate the shipment, besides assuring to settle the claim by refunding the loss to

the shipper directly, namely, the plaintiff, and therefore, the case of both parties is covered

by Section 58 of the Evidence Act read with Order XII, Rule 6 of the Civil Procedure Code.

11. Explaining the legal position further, learned counsel for the

plaintiff/respondent would submit that while Section 58 of the Evidence Act says that facts

admitted need not be proved, Order XII, Rule 6 of CPC would further make it clear that

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where admissions of fact have been made either in the pleading or otherwise, whether

orally or in writing, the Court may, at any stage of the suit, either on the application of any

party or of its own motion and without waiting for determination of any other question

between the parties, make such order or give such judgment, having regard to such

admissions. Therefore, by following the said provisions, learned trial Court has rightly

decreed the suit, which is in conformity with the ratio laid down by this Court in

Singapore Airline's case (cited supra). Therefore, the contention of the learned Senior

counsel by relying on Rule 22 of the Act that even if there is any liability found on the part

of the defendants/DHL the liability is only restricted, is inapplicable to the present case for

the reason that letter dated 12.07.2009 issued by the DHL Express, Angola, clearly admits

the case of both parties that there was a partial loss of goods and as per DHL terms and

conditions of transport, the refund will be done by DHL in India directly to shipper,

namely, the plaintiff, hence, it is not open to the defendants/DHL to wriggle out of its own

responsibilities as they cannot play hot and cold. Therefore, impugned judgment and

decree passed by the learned trial Court does not call for any interference.

12. Having perused Exs.A1 to A17 marked on the side of the plaintiff and Ex.B1

marked on the side of the defendant, and also having heard the learned Senior counsel for

the appellants and the learned counsel for the respondent, the following issues arise for

consideration in this appeal:-

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(i) Whether the direction of the learned trial Court directing the defendants

to pay Rs.17,30,925/- with future interest @ 9% per annum is legally well

founded?

(ii) Whether the liability is restricted to as per Section 22(2) of the Carriage

by Air Act, 1972?

13. Since Mrs.Rita Chandrasekaran, learned counsel for the plaintiff/respondent

herein relying heavily on letter dated 12.07.2009/Ex.A14, has tried to bring their case under

admitted liability, let us consider the same in the light of Section 58 of the Evidence Act

read with Order XII, Rule 6 of CPC and they are extracted hereunder:-

“Section 58 – Facts admitted need not be proved – No fact

need to be proved in any proceeding which the parties thereto or

their agents agree to admit at the hearing, or which, before the

hearing, they agree to admit by any writing under their hands, or

which by any rule of pleading in force at the time they are deemed

to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts

admitted to be proved otherwise than by such admissions.

“Order 12 Rule 6 – Judgment on admissions – (1) Where

admissions of fact have been made either in the pleading or http://www.judis.nic.in

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otherwise, whether orally or in writing, the Court may at any

stage of the suit, either on the application of any party or of its

own motion and without waiting for the determination of any

other question between the parties, make such order or give such

judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1)

a decree shall be drawn up in accordance with the judgment and the

decree shall bear the date on which the judgment was pronounced.”

To find an answer to the above said legal issue, it is also relevant to extract the letter dated

12.07.2009 of the DHL Express, Angola/Ex.A14, which is quoted below:-

CABELO NATURAL IMPORTACAO E EXPORTACAO

TRAVESSA ENGRACIO FRAGOSO

PREDIO NO.22 3 andar

Imgombotas

LUANDA – REP. DE ANGOLA

Luanda, 12 July 2009

Following your complaint regarding your shipment sent on the 24 June

2009 from India to Luanda, with DHL airway bill No.1036375281.

Unfortunately, despite all the investigations done at the transit

points of your shipment, we haven't been able to locate it, so we

have to declare it partially lost.

We would like to inform you that, we have immediately sent the claim file

to DHL in India.

Please be informed that this consignment was not insured, as the shipper

at the origin country paid under the DHL account No.530746263,

therefore, according with DHL Terms & Conditions of Transport, http://www.judis.nic.in

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any refund or credit will be done by DHL in India, directly to your

shipper SRI MANIKANDAN INTERPRISES.

We deeply regret this incident and all the inconveniences that this may

have caused you and we trust we can continue servicing your company in

the future.

With our best regards,

Mirriam Afonso

Customer Service Coordinator

DHL EXPRESS ANGOLA

CS/2009/07/32/AA

14. It is not in dispute that the plaintiff entrusted the shipment to the first

defendant/DHL on 24.06.2009 under the consignment bearing Airway Bill No.1036375281

for M/s.Cabelo Natural Importacao E Exportacao, LDA, Travessa Engracia, Fragoso Predio

No.22 3 Andar, Ingombota, Luanda, Angola. As per the invoice, total value of the product

is USD 20250 @ USD 225.00 per kg. for gross weight 97.200 kgs. and net weight 90 kgs.

The goods were shipped in 4 boxes; two boxes containing 45 kgs. reached the destination,

but, the remaining two boxes did not reach the destination. Whileso, again, the plaintiff

entrusted another shipment for the same buyer on 26.06.2009 and as per the invoice, total

value of the product is USD 31500 @ USD 350.00 per kg. and out of the goods despatched

in 3 boxes, two boxes were missing weighing 72 kgs. Therefore, consignee, on coming to

know about the status of goods, immediately sent a complaint to M/s.DHL Express, http://www.judis.nic.in

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Angola, local DHL Customer Service Coordinator, who, in turn, vide letter dated

12.07.2009, expressing their inability to locate the shipment, further stated that as per DHL

terms and conditions of transport, refund will be done by DHL in India directly to the

shipper, namely, the plaintiff. Therefore, since the Customer Care Coordinator of DHL

Express, Angloa, vide letter dated 12.07.2009, has clearly acknowledged their inability to

locate the shipment and thereby they have further agreed to refund the loss, they are

bound by their own admission as per Section 58 of the Evidence Act read with Order XII,

Rule 6 of CPC.

15. The Apex Court, in the case of Karam Kapahi and others Vs. Lal Chand Public

Charitable Trust & another [2010 (4) SCC 753], considering the principles behind Order

XII, Rule 6 of the Civil Procedure Code, ruled that the object of Order XII, Rule 6 is to give

the plaintiff a right to speedy judgment, for the clear reason that once the controversy

raised before the Court is admitted either partly or fully, there would be no point in

delaying the judgment unnecessarily and therefore, the Court seeing the admission of fact

made by the defendant by virtue of Order XV, Rule 1 read with Order XII, Rule 6 of the

Civil Procedure Code shall at the first hearing of the suit pronounce its judgment,

inasmuch as when Order XII, Rule 6 vividly makes the legal position clear that when the

admission of facts is made on the pleadings or otherwise, whether oral or in writing, the

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Court may at any stage of the suit give its judgment having regard to such admission. A

Division Bench of the Madhya Pradesh High Court also in the case of Shikharchand and

others Vs. Bari Bai & Others [AIR 1974 MP 75] has held that the plaintiff is entitled to the

relief asked for by him on the basis of defendant's own admissions, as there would be no

point in delaying the judgment unnecessarily in deciding the controversial points in the

routine manner. In the case on hand as well, DHL Express, Angola/Customer Service

Coordinator, vide letter dated 12.07.2009/Ex.A14, had explicitly declared the partial loss of

shipment sent to the consignee/Cabelo Natural Importacao E Exportacao at Angola by the

plaintiff's Company, besides stating that any refund or credit will be done by DHL, India,

directly to the shipper, namely, the plaintiff. As such, considering the value of the product

having been lost during the transit and also considering the rupee value against the USD at

that point of time, learned trial Court has rightly decreed the suit holding that the plaintiff

is entitled to recover a sum of Rs.17,30,925/- from the defendants/DHL with future interest

@ 9% per annum from the date of plaint till the date of realization, therefore, in view of the

well considered judgments cited supra, we do not find any reason to interfere with such a

well-reasoned judgment and decree passed by the learned trial Court.

16. Secondly, in the light of the admission made by the DHL/defendants/appellants

herein, it has to be seen whether their case can be brought under Section 22 of the Act.

Since the damage has been caused due to the reckless conduct of the defendants/appellants,

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in the light of the ratio laid down by the Hon'ble Division Bench of this Court in

Singapore Airline's case (cited supra), holding that when once carrier receives cargo, the

obligation is on their part to safely deliver the same, and that the burden is on the carrier to

show that they had followed proper procedure and inspite of their best efforts they could

not prevent the loss or damage, we are of the considered view that the

DHL/defendants/appellants herein are not entitled to claim the protection given under

Section 22 of the Act so as to limit their liability, for, as highlighted above, they themselves

admitted vide their letter dated 12.07.2009/Ex.A14 about the partial loss of the goods,

besides stating that the refund will be done by DHL, India, directly into the shipper,

namely, the plaintiff/respondent herein. For better appreciation, relevant portion of the

judgment in Singapore Airline's (cited supra) is extracted hereunder:-

31. As regards the liability on the part of the first

defendant/appellant, the rights and liability of an International Air

Carrier is governed by Carriage by Air Act. Chapter III of II Schedule

deals with liability of the carrier. It is contended by the first defendant/

appellant that the maximum liability on their part is only Rs.43,579/- and

their liability could be restricted only to the extent of USD 20 per

kilogram. On the contrary, the learned counsel for the

plaintiffs/respondents 1 and 2 would contend that Rule 22 (5) of Chapter

III deals with conversion of francs to units of gold and to Indian Currency

which provides for maximum liability of the air carrier for short landing of

33.30 kilograms of the cargo in terms of value of goods. According to the http://www.judis.nic.in

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plaintiffs/respondents 1 and 2, the weight of the short landed cargo is

33.30 kilograms. The loss has to be calculated by taking note of the fact

that the transaction in this case took place in the year 2007 and therefore,

the amendment brought into the Third Schedule of the Act during the year

2009 prescribing different mode of calculation will have no application to

the case on hand...........................” “32.............................. The limits of liability specified in rule 22

shall not apply, if it is proved that the damage resulted from an act or

omission of the carrier, his servants or agents, done with intent to cause

damage or recklessly and with knowledge that damage would probably

result; provided that, in the case of such act or omission of a servant or

agent, it is also proved that he was acting within the scope of his

employment.

33. It is evident from the above provisions of the Act that the claim

of the first defendant/appellant that their liability is limited to US Dollar

20 per kilogram is not sustainable when it is not disproved by the first

defendant/appellant that because of their negligence or wilful misconduct,

the loss or damage is caused to the consignment. In the absence of such

proof to show that there was no misconduct on their part, the first

defendant/appellant is not entitled to the protection given in Section 22 of

the Act and consequently, they will fall within the scope and ambit of the

provisions of Section 25 of the Act which deals with wilful misconduct.

Though it is the submission of the counsel for the first defendant/appellant

that it is for the plaintiffs to prove whether there is wilful negligence on

the part of the first defendant/appellant, we find that the burden of

proving absence of negligence and wilful misconduct is only on the part of

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the first defendant/appellant who has to prove the absence of misconduct

by valid and satisfactory evidence, which the appellant has miserably

failed to discharge in this case. Further, when once the carrier receives the

cargo, it is their obligation to safely deliver the same and the burden is on

the carrier to show that they followed proper procedure and inspite of their

best efforts, they could not prevent loss or damage. Therefore, we are of the

opinion that the burden of disproving the wilful misconduct is on the part

of the first defendant/appellant which they miserably failed to discharge by

letting in any oral or documentary evidence. In this context, it is useful to

refer to the decision rendered by the Kerala High Court in the case of (M/s.

Indian Airlines vs. Kurian Abraham and others) reported in AIR 2010

KERALA 85 relied on by the learned counsel for the plaintiffs/respondents

1 and 2 wherein it was held that when once carrier receives cargo, the

obligation is on their part to safely deliver the same. The burden

is on the carrier to show that they had followed proper procedure

and inspite of their best efforts, they could not prevent loss or

damage. In the instant case, the first defendant/appellant failed to show that they have taken all precaution and adopted proper

procedure to safely deliver the goods. In such view of a matter, we

do not find any reason to interfere with the Judgment and decree

passed by the trial Court. Hence, the Appeal suit fails and it is liable to

be dismissed.

34. With regard to the submissions made by the counsel for the

appellant that the liability of the appellant is only limited as per Warsaw

Convention 1929, we are of the opinion that when Rule 22 (5) of the

Carriage by Goods Act clearly imposes the liability on the part of the

Carrier and it is the Law of the Land, it has to be adopted to decree the http://www.judis.nic.in

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suit filed by the plaintiffs. Further, Rule 23 (1) of The Carriage by Air

Act, 1972 clearly stipulates that any provision tending to relieve the air

carrier of liability or fix a lower liability than that which is laid down in

these Rules shall be null and void. Therefore, the submission of the counsel

for the appellant that a condition in the airway bill limits their liability to

USD 20 per kilogram is null and void. Moreover, the appellant has not

filed the original airway bill containing the terms and conditions. In such

circumstances, we are not inclined to accept such submissions made by the

learned counsel for the appellant as regards the applicability of Warsaw

Convention 1929 and Hague convention to this case.”

17. Thirdly, it is not an isolated case where only once the goods despatched by the

plaintiff was lost inadvertently. At the risk of repetition, it may be mentioned that after

despatching the goods containing 4 boxes on 24.06.2009, 2 boxes containing 45 kgs.

reached the destination, but, the remaining 2 boxes did not reach the destination.

Therefore, when the plaintiff tracked the movement of the shipment using Airway bill

number, they came to know about the partial delivery of the goods. Immediately, the

consignee, after knowing partial delivery of the goods, sent a complaint to M/s.DHL

Express, Angola, local DHL Customer Service Coordinator, who, in turn, acknowledging

the loss of partial goods, stated that the refund will be done by DHL, India, directly to the

shipper. However, inspite of assurance, nothing has been done by the defendants to settle

the claim of the plaintiff in regard to the loss of 45 kgs. Again, it is to be noted that when

plaintiff sent another shipment containing 3 boxes (each box contains 30 kgs.) intended for http://www.judis.nic.in

A.S.No.297 of 2018

the same buyer, namely, M/s.Cabelo Natural Importacao E Exportacao, LDA, Travessa

Engracia, Fragoso Predio No.22 3 Andar, Ingombota, Luanda, Angola, box Nos.1 and 2

weighing 72 kgs. were missing. Therefore, it is repeated recklessness shown by the

defendants/DHL in delivering the goods to the consignee in the very same condition,

hence, repeated loss of the goods indicate that the defendants/DHL are not entitled to get

the protection under Section 22 of the Act, as it is a clear case of reckless and willful

misconduct falling within the scope and ambit of the provisions of Section 25 of the Act

which deals with wilful misconduct. Therefore, in view of reckless and wilful misconduct

of the defendants/DHL, which is falling within the scope of Section 25 of the Act, they

cannot seek any protection given under Section 22 of the Act.

18. Thus, in the light of the above said legal position, since the similar factual issues

involved in the present appeal has already been adjudicated and decided by the Hon'ble

Division Bench of this Court in Singapore Airline's case, we, respectfully agreeing to this

view, do not find any error or illegality in the impugned judgment and decree passed by

the learned trial Court. Accordingly, for the reasons stated above, answering the issues

against the appellants, the First Appeal is dismissed by confirming the impugned

judgment and decree passed by the learned trial Court. No Costs.

(T.R., J.) (G.C.S., J.) 26.04.2021 http://www.judis.nic.in

A.S.No.297 of 2018

rkm Index:yes Speaking

To

XIX Additional Judge, City Civil Court, Chennai.

T.RAJA, J.

and G.CHANDRASEKHARAN, J.

rkm

http://www.judis.nic.in

A.S.No.297 of 2018

A.S.No.297 of 2018

26.04.2021

http://www.judis.nic.in