M/S.Sundaram Textiles Ltd vs M/S.Savani Roadlines
2022 Latest Caselaw 10641 Mad

                                                                              A.S.(MD)No.283 of 2009

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED: 21.06.2022

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                                A.S.(MD)No.283 of 2009


                 1.M/s.Sundaram Textiles Ltd.,
                    Lakhsmi Building, Usilampatti Road,
                    Kochadai, Madurai,
                    through its Power of Attorney,
                    United India Insurance Co.Ltd.


                 2.United India Insurance Co. Ltd.,
                    Divisional Office I,
                    7-A, West Veli Street, Madurai,
                    through it Senior Divisional Manager.         ... Appellants / Plaintiffs


                                                         -Vs-
                 M/s.Savani Roadlines,
                 130, Munichalai Road, Madurai,
                 through one of its Partners,
                 Priyesh M.Savani                                     ... Respondent / Defendant


                 1/16

https://www.mhc.tn.gov.in/judis
                                                                                      A.S.(MD)No.283 of 2009

                 PRAYER: Appeal Suit is filed under Section 96 of the Code of Civil Procedure to
                 set aside the decree and judgment made in O.S.No.194 of 2004 dated 20.07.2007
                 on the file of the Additional District Judge, Fast Track Court No.1, Madurai.


                                           For Appellants      : Mr.B.Rajesh Saravanan
                                           For Respondent      : No Appearance


                                                            JUDGMENT

For the sake of convenience, the parties are referred to as per their

ranking in the trial Court.

2.The brief facts of the plaint are as follows:-

(i)The first plaintiff is a manufacturer of cotton / polyester yarn and

having one of its mills at Nambinagar, Nanguneri and its Sales Depot at

Ichalkaranji, Maharashtra State. He entrusted the goods of 125 cartons of 62s

Polyester yarn, valued at Rs.9,30,188/- with the defendant for safe carriage by

road from their mills at Nanguneri to Ichalkaranji to be delivered at the godown

of their Sales Depot. The defendant having accepted the entrustment issued a

Consignment Note No.138450, dated 03.01.1996 and transported the

consignment in Truck No.KL 11 A 8679. Subsequently, the said consignment was

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not delivered at the destination. Though the first plaintiff had reminded the

defendant time and again about the non-delivery of the goods, there was no

response. Therefore, the first plaintiff wrote two letters dated 03.08.1996, one for

requesting to furnish non-delivery certificate and another one for making claim

for the loss of goods. The defendant on 06.09.1996 sent a non-delivery

certificate, issued by the Divisional Office of the defendant at Bangalore.

However, the defendant did not choose to settle the claim of the first plaintiff.

(ii)The second plaintiff then settled the claim of the first plaintiff at

Rs.9,30,188/- in pursuance of the contract of insurance. Thereafter, the first

plaintiff executed a letter of subrogation and special power of attorney dated

23.10.1996 to the second plaintiff. Therefore, the plaintiffs jointly filed a

complaint in O.P.No.78 / 1997 before the State Consumer Disputes Redressal

Commission, Chennai. The State Forum had allowed the same on 16.12.1998,

directing the defendant to pay the claim with interest. Aggrieved by the same, the

defendant preferred an appeal in Appeal No.46 / 1999 before the National

Consumer Disputes Redressal Commission, New Delhi and the same was

dismissed, by an order dated 11.03.1999. Thereafter, the defendant preferred

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Civil Appeal No.7349 / 2000 before the Hon'ble Supreme Court of India and the

same was allowed with liberty to the second plaintiff to approach the Civil Court

to recover the amount. Therefore, the suit has been filed by the plaintiffs.

3.The brief facts of the written statement filed by the defendant are as

follows:-

The suit is barred by limitation and also the plaintiffs have not issued

statutory notice under Section 10 of the Carriers Act, 1865 (hereinafter referred to

as 'the Act') and the proceedings pending in the Consumer Court will not give an

exemption for limitation. Since the information about the non-delivery of goods

had been given within 4 to 5 days of the despatch, the first plaintiff has not taken

any steps, but waited till 03.09.1996 and voluntarily, got the certificate of

non-delivery. Thereafter, taking advantage of the non-delivery certificate

received from the Divisional Office of the defendant at Bangalore, the first

plaintiff made claims, subsequently, got the claim from the Insurance Company /

second plaintiff. In order to get claim from the Insurance Company, they got the

certificate and therefore, there cannot be any knowledge of neither loss of goods

nor damages to the first plaintiff. Though the Hon'ble Supreme Court of India,

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while allowing the appeal filed by the defendant, dismissed the claim of the

plaintiffs with liberty to approach the Civil Court, has not given any exemption

for limitation. Therefore, the suit is likely to be dismissed.

4.Based on the above said pleadings and also the documents annexed

with the pleadings, the trial Court framed the following issues:-

“1.Whether the plaintiffs are entitled to get the suit claim from the defendant?

2.Whether the suit is barred by limitation?

3.Whether the suit is liable to be dismissed for non-joinder of necessary parties?

4.Whether the plaintiffs are entitled to take an advantage of the certificate received from the Divisional Office at Bangalore in the suit claim?

5.Whether the plaintiffs have got cause of action to file the suit?

6.whatever reliefs are the plaintiffs entitled?

Subsequently, on 12.06.2007, the following additional issue was framed:-

Whether the notice under Section 10 of the Carriers Act has

been issued?”

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5.In order to substantiate the case of the parties, during the trial on the

side of the plaintiffs, one witness was examined as P.W.1 and 13 documents were

marked as Exs.A.1 to A.13. On the side of the defendant, one witness was

examined as D.W.1, however, no documents have been marked.

6.On conclusion of the trial, after hearing the arguments advanced on

either side, the trial Court, by judgment and decree dated 20.07.2007, dismissed

the suit.

7.Challenging the same, the plaintiffs in the suit have filed the present

Appeal Suit before this Court.

8.The learned counsel for the appellants would submit that the

defendant has not denied the entrustment of 125 cartons of 62s Polyester yarn,

valued at Rs.9,30,188/- and also he has not denied the non-delivery of the said

goods at the destination. After receiving a request letter for furnishing

non-delivery certificate, the defendant has issued non-delivery certificate on

06.09.1996. Based on that the first plaintiff made a claim with the second

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plaintiff and executed subrogation right and power of attorney to the second

plaintiff. Subsequently, the plaintiffs jointly filed claim petition before the State

Consumer Disputes Redressal Commission, Chennai, which was allowed.

Aggrieved by the same, the defendant approached the National Consumer

Disputes Redressal Commission, New Delhi and at last before the Hon'ble

Supreme Court, the defendant succeeded and the Supreme Court has granted

liberty to the plaintiffs to approach the Civil Court. Based on that the plaintiffs

had filed the suit.

9.He would further submit that the learned trial Judge though accepted

that the suit has been filed within time, he has given finding that on the ground of

non-compliance of the statutory notice under Section 10 of the Act, the plaintiffs

are not entitled for the relief. The transaction has not been denied and the

non-delivery certificate issued on 06.09.1996 is not in dispute and from that date

within 6 months, they issued notice and the same has not been received by the

defendant. However, the learned trial Judge failed to consider the date of

knowledge before non-compliance of the statutory provisions under Section 10 of

the Act, which warrants interference.

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10.When the matter was listed on 13.06.2022, none appeared on behalf

of the respondent, however, the learned counsel for the appellants was heard. In

order to give one more opportunity to the respondent, the matter was directed to

be listed today (21.06.2022) under the caption 'for Judgment'. Today also, there is

no representation on behalf of the respondent. Therefore, after hearing the

learned counsel for the appellants and perusing the records available before this

Court, this ex-parte Judgment is passed.

11.It is not in dispute that the first plaintiff entrusted the goods with the

defendant and also normal transit period is 4 to 6 days to deliver the goods at the

destination, where the goods are to be delivered or handed over. The plaintiffs

have not stated that the goods entrusted is nearly about Rs.10 lakhs and the

normal transit period is 4 to 6 days. The plaintiffs have not stated either in the

plaint or in the evidence as to why they have not taken any action within the

reasonable time. The plaintiffs had stated that though the first plaintiff was

reminding the defendant time and again about non-delivery of the consignment,

there was no response and finally, the first plaintiff wrote a letter on 03.08.1996,

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requesting the defendant to furnish non-delivery certificate. Therefore, after the

transit period of 4 to 6 days, when the goods were not delivered at the destination

and the first plaintiff had reminded the defendant time and again about the non-

delivery of goods and the defendant had not given any response, why the first

plaintiff was waiting from the month of January to August. It shows that only for

getting claim from the Insurance Company, the first plaintiff got certificate from

the Divisional Office of the defendant, which does not mean the request for

issuance of the certificate of non-delivery. Therefore, the contention of the

appellants that they came to knowledge only at the time of getting non-delivery

certificate and the cause of action for issuance of notice under Section 10 of the

Act arose only in the month of August or in the month of January or prior to the

month of August, cannot be accepted.

12.A reading of the entire materials and evidence would show that

consignment letter was issued by the defendant on 03.01.1996 and the first

plaintiff made request for getting non-delivery certificate on 03.08.1996 and

obtained non-delivery certificate on 06.09.1996. Thereafter, the first plaintiff

made claim before the second plaintiff and also executed the right of subrogation.

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Therefore, the contention of the learned counsel for the appellants regarding the

date of the non-delivery certificate and loss of the goods or damages is not

acceptable. Though the trial Court held that the suit is not barred by limitation,

merely because the proceedings were pending before the Consumer Forum, it

held that the plaintiffs have not established the date of knowledge about the

non-delivery of goods.

13.It is pertinent to note that since the second plaintiff has got

subrogation right, they ought to have approached the Civil Court immediately and

the first plaintiff ought to have issued notice under Section 10 of the Act, within 6

months from the date of knowledge. The date of request for getting non-delivery

certificate or the date of receiving non-delivery certificate cannot be treated as the

date of knowledge of the loss of goods or damages. Though Section 10 of the Act

shows only that no suit shall be instituted against a common carrier for the loss

of, or injury to him for carriage, unless notice in writing of the loss or injury has

been given to him before the institution of the suit and within six months of the

time when the loss or injury first came to the knowledge of the plaintiff, it does

not say anything about non-delivery of the goods, it is only loss or injuries.

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Therefore, the non-delivery of goods obviously not falls under Section 10 of the

Act. The knowledge of non-arrival of the goods at the destination is one thing

and knowledge about the loss of goods is altogether different thing. Merely

because the goods did not reach the destination, one cannot come to the

conclusion that the goods were lost. Therefore, within normal transit period, if

the goods are not delivered at the destination, one cannot come to the conclusion

that the loss or damages caused. The plaint averments absolutely are kept silent

about the period between 03.01.1996 and 03.08.1996. The only bald averment

made in the plaint is that though the first plaintiff was reminding the defendant

time and again about the non-delivery of consignment, there was no response.

There is no date of communication and there is no specific date on what date the

first plaintiff came to knowledge or suspect that the goods were not delivered and

immediately, within reasonable time, what actions they have taken. The only

documentary evidence is that the first plaintiff sent a letter dated 03.08.1996

under Ex.A.4, to the defendant, requesting to issue non-delivery certificate and

through another communication dated 06.09.1996, the defendant sent non-

delivery certificate.

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14.Ex.A.5 shows that on the same date, the first plaintiff sent another

letter for claiming damages, for which the defendant sent a non-delivery

certificate on 06.09.1996 and they have not settled the amount for the letter

03.08.1996 under Ex.A.5 and also Ex.A.7 shows that the first plaintiff sent a letter

to issue valuation for the goods delivered to the defendant. The first plaintiff

made claim from the second plaintiff in the voucher, which is marked as Ex.A.8.

Therefore, from the communications Ex.A.4 to A.8, it is seen that the plaintiffs

came to knowledge about the non-delivery, even much earlier on 03.08.1996 and

only they sent a communication under Exs.A.4 and A.5 and got the certificate

under Ex.A.6 in order to get claim from the second plaintiff.

15.A perusal of Exs.A.7 to A.9 shows that in order to get claim, the first

plaintiff obtained Ex.A.6 non-delivery certificate and Ex.A.7 valuation certificate

from the defendant and thereafter, made claim with the second plaintiff and as per

Ex.A.9, the second plaintiff has got right of subrogation, which clearly shows that

the first plaintiff came to knowledge about the non-delivery of goods much earlier

to the communication letter Ex.A.4. All of a sudden, on 03.08.1996, the first

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communication letter was given from the first plaintiff to the defendant only to

issue non-delivery certificate. Therefore, the trial Court has come to the

conclusion that the plaintiffs have not followed the statutory provisions under

Section 10 of the Act.

16.Since this Court is First Appellate Court as a fact finding Court, it

has to re-appreciate the entire evidence independently and arrive at an

independent conclusion. Therefore, this Court has carefully gone through the

pleadings, oral and documentary evidence adduced on either side.

17.Though it is not a specific case of the plaintiffs and the defendant

that the defendant lost the goods, the first plaintiff came to know about the loss of

goods only on 03.08.1996. Therefore, the first plaintiff has not issued notice

under Section 10 of the Act within 6 months.

18.A reading of the pleadings clearly shows that consignment was

handed over on 03.01.1996 and as per normal course, the goods would have

delivered within 4 to 6 days at the destination. However, the first communication

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from the first plaintiff is only on 03.08.1996 that to only requesting the defendant

to send a non-delivery certificate. That means, the first plaintiff might have

known about the non-delivery much earlier to that date and even though he has

stated that he made several communications, however, there was no response,

absolutely, there is no documentary evidence to show that on what date the first

plaintiff has approached the defendant. Therefore, a perusal of entire records

shows that in order to get claim from the second plaintiff, the first plaintiff started

to gather records, subsequently, he got claim from the second plaintiff. Thereafter

only, the second plaintiff having subrogation right, started to make claim before

the Consumer Forum, stating that the cause of action arose for issuing notice

under Section 10 of the Act only on 03.08.1996.

19.Therefore, this Court finds that the plaintiffs have not approached the

Court with clean hands and they failed to establish that from the date of

knowledge about non-delivery / loss / damages within 6 months, the first plaintiff

issued a notice under Section 10 of the Act to the defendant. Therefore, in the

absence of the same, for non-compliance of the statutory provisions under Section

10 of the Act, the plaintiffs are not entitled to get the decree and there is no reason

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to interfere with the judgment and decree of the trial Court. Hence, there is no

merit in the appeal and the same is liable to be dismissed.

20.Accordingly, this Appeal Suit stands dismissed. However,

considering the facts and circumstances of the case, there shall be no order as to

costs.

21.06.2022 Index : Yes / No Internet : Yes / No

Myr

To

1.The Additional District Judge, Fast Track Court No.1, Madurai.

2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis A.S.(MD)No.283 of 2009

P.VELMURUGAN, J.

Myr

A.S.(MD)No.283 of 2009

21.06.2022

https://www.mhc.tn.gov.in/judis