Madras High Court
Indo Arya Central Transport Ltd vs M/S. T.T.K.Pharma Ltd on 10 March, 2021
S.A.No.1607 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:10.03.2021
CORAM:
THE HON'BLE MR.JUSTICE T.RAVINDRAN
S.A.No.1607 of 2008
and
M.P.No.1 of 2008
&
M.P.Nos.1 & 2 of 2010
Indo Arya Central Transport Ltd,
Door No.49, Broadway,
II Floor,
Chennai – 600 108. ... Appellant
Vs.
1. M/s. T.T.K.Pharma Ltd,
rep by Power Agent/Subrogee,
The Oriental Insurance Company Ltd,
Having Office at Door No.8,
Old Trunk road,
Pallavaram,
Chennai – 600 043.
2. The Oriental Insurance Company Ltd,
Divisional Office at “Rosy Towers”,
Door No.7, Uthamar Gandhi Salai,
Nungambakkam,
Chennai – 600 034. ... Respondents
1/8
https://www.mhc.tn.gov.in/judis/
S.A.No.1607 of 2008
Prayer:
Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 26.09.2007 made in A.S.No.484 of 2006 on the
file of the Fast Track Court Judge-II,City Civil Court, Chennai, confirming
the judgment and decree dated 22.03.2006 made in O.S.No.3898 of 2001 on
the file of the XV Assistant Judge, City Civil Court, Chennai.
For Appellant : Mr.P.K.Murali
For Respondent : No appearance
*****
JUDGMENT
Challenge in this second appeal is made to the judgment and decree
dated 26.09.2007 passed in A.S.No.484 of 2006 on the file of the
Additional District Judge, Fast Track Court-II, Chennai, confirming the
judgment and decree dated 22.03.2006 passed in O.S.No.3898 of 2001 on
the file of the XV Assistant Judge, City Civil Court, Chennai.
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S.A.No.1607 of 2008
2. For the sake of convenience, the parties are referred to as per their
rankings in the trial court.
3. The defendant in O.S.No.3898 of 2001, who had lost in both the
courts is the appellant in this second appeal.
4. Suit for recovery of money.
5. According to the plaintiffs, the first plaintiff dispatched the
consignment valued at Rs.2,92,936/- from Chennai to Vijayawada through
the defendant and the consignment was entrusted in good condition and the
defendant undertook to carry and delivery the consignment to the consignee,
however the defendant had not delivered the consignment and also issued
the non-delivery certificate and thereby the plaintiff having sustained the
loss of Rs.2,96,839/- being the value of the consignment not delivered and
the first plaintiff having taken the insurance from the second plaintiff and
as per the terms and conditions of the Insurance Policy, the second plaintiff
has settled the claim of the first plaintiff and by way of the letter of
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S.A.No.1607 of 2008
Subrogation cum Special Power of Attorney executed between the plaintiffs
1 and 2, the second plaintiff, the Insurance Company is entitled to maintain
the suit for the recovery of the suit claim and accordingly come forward
with the suit claiming the value of the consignment not delivered by the
defendant.
6. The defendant resisted the plaintiffs' suit contending that the suit
consignment had been entrusted to it and also further admitted the issuance
of non-delivery certificate. However, according to the defendant, the
consignment was booked under the owners risk and the suit is barred by
limitation and as the first plaintiff claim has been settled by the second
plaintiff pursuant to the Insurance Policy, the suit is not maintainable and
hence the suit is liable to the dismissed.
7. In support of the plaintiffs' case, P.W.1 was examined. Exs.A1 to
A9 were marked. On the side of the defendant, D.W.1 was examined.
Ex.B1 was marked.
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S.A.No.1607 of 2008
8. The Courts below on an appreciation of the materials available on
record, both oral and documentary and the submissions putforth by the
respective parties, were pleased to decree the suit in favour of the plaintiffs.
Challenging the same, the present second appeal has been laid.
9. It is not in dispute that the suit consignment has been entrusted to
the defendant for delivery to the consignee by the first plaintiff and the
defendant had not disputed the same. The same could also be gathered from
Ex.A3, the lorry receipt issued by the defendant. It has also been admitted
by the defendant that the consignment was entrusted to it properly.
Therefore the defendant as the carrier has the bounden duty to deliver the
goods under proper care. As rightly held by the Courts below, no acceptable
and reliable materials had been placed by the defendant to show that they
had taken all the care and protection in carrying the consignment safely to
the destination and from the letter issued by the defendant dated 08.09.1998
marked as Ex.A5, it is found that the consignment had not been delivered by
the defendant. Accordingly the statutory notice under section 10 of the
Carriers Act had been issued by the first plaintiff and pursuant to the
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S.A.No.1607 of 2008
Insurance Policy, the insurer, the second plaintiff having settle the claim of
the first plaintiff on the basis of the Letter of Subrogation, the plaintiffs
have laid the suit.
10. As rightly held by the Courts below, the defendant having
admitted the non-delivery of the suit consignment under Ex.A5, it cannot
take the plea that the same had been issued only to enable the first plaintiff
to get the reimbursement from the second plaintiff under the Insurance
Policy. When from the Letter of Subrogation and Special Power of
Attorney issued by the first plaintiff to the second plaintiff marked as Ex.A7
and when the second plaintiff had settled the claim of the first plaintiff
based on the Insurance Policy, it is found that as held by the Courts below,
the plaintiffs are entitled to maintain the suit.
11. Considering the reasonings and conclusions of the Courts below
for upholding the plaintiffs' case, they being founded on the proper
appreciation of the materials available on record, both on factual matrix as
well as on the point of law and when they are not shown to be in any
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S.A.No.1607 of 2008
manner, perverse, illogical and irrational, I do not find any valid reason to
interfere with the same. Resultantly, no substantial question of law is found
to be involved in this second appeal.
12. In conclusion, the judgment and decree dated 26.09.2007 passed
in A.S.No.484 of 2006 on the file of the Additional District Judge, Fast
Track Court-II, Chennai, confirming the judgment and decree dated
22.03.2006 passed in O.S.No.3898 of 2001 on the file of the XV Assistant
Judge, City Civil Court, Chennai are confirmed. Resultantly, the second
appeal is dismissed. Consequently, connected miscellaneous petitions are
closed.
10.03.2021
mfa
Index:yes
Internet:yes
https://www.mhc.tn.gov.in/judis/
S.A.No.1607 of 2008
T.RAVINDRAN, J.
mfa
To
1. The Additional District Judge,
Fast Track Court-II,
Chennai.
2.The XV Assistant Judge,
City Civil Court,
Chennai.
Copy to
The Section Officer,
VR Section,
High Court,
Chennai.
S.A.No.1607 of 2008
and
M.P.No.1 of 2008
&
M.P.Nos.1 & 2 of 2010
10.03.2021
https://www.mhc.tn.gov.in/judis/
