Telangana High Court

A.B.C.India Ltd.Secbad. vs New India Insurance Co.Ltd.Hyd.And Anr on 23 April, 2024

* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

                        + S.A.No.43 OF 2003

%        23.04.2024

#        Between:

M/s. A.B.C. India Limited
                                                              Appellant
                                      Vs.
M/s. New India Insurance Company
Limited and another
                                                            Respondents

! Counsel for Appellants              : Sri Hari Sreedhar

^ Counsel for Respondents             : Sri Kota Subba Rao

<GIST:

> HEAD NOTE:


? Cases referred                  :

    1.   AIR 1997 Supreme Court 1923
    2.   1993 ACJ 616
    3.   (2007) 1 Supreme Court Cases 546
    4.   2023 Live Law (SC) 821
                                    2

                                                                  MGP, J
                                                              sa_43_2003




THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

                  SECOND APPEAL No.43 OF 2003

JUDGMENT:

This Second Appeal is filed by defendant challenging the

judgment and decree dated 29.07.2002 passed in A.S.No.215 of

2001 on the file of the learned Chief Judge, City Civil Court at

Hyderabad, confirming the judgment and decree dated 23.04.2001

passed in O.S.No.4836 of 1998 on the file of the learned Junior Civil

Judge, City Civil Court, Hyderabad. Thus, the present Second

Appeal is filed against the concurrent findings of trial Court as well

as first Appellate Court.

2. For the sake of convenience, the parties hereinafter are

referred to as they are arrayed before the trial Court.

3. The brief facts of the case, which necessitated the

appellant/defendant to file the present appeal, are as follows:

a) The plaintiffs filed O.S.No.4836 of 1998 against defendant

for recovery of Rs.44,605/- towards damage of the consignment

of picture tubes. The brief averments of the plaint are as under:

i) Plaintiff No.2 purchased 320 colour picture tubes valued

at Rs.14,31,197.82 paise and the same was entrusted by M/s.

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JCT Electronics to the defendant for carriage and to deliver the

consignment in good condition from Chandigarh to Hyderabad

but damage occurred to 18 colour picture tubes. The

defendant had not taken proper care and caution while

transporting. Immediately Plaintiff No.2 informed the defendant

about the damage and a notice was also issued. After receipt of

the notice, the defendant issued damage certificate dated

15.12.1995 stating that 18 colour picture tubes were delivered

in damaged condition.

ii) The plaintiff No.2 has appointed a surveyor to assess the

damage and submitted the report on 09.12.1995. The plaintiff

No.1 settled claim of the plaintiff No.2 for a sum of Rs.36,579/-

on 01.01.1996 and obtained valid receipt. In consideration of

the settlement the plaintiff No.2 also executed a letter of

subrogation and Special Power of Attorney in favour of the

plaintiff No.1 transferring all their rights authorizing to file a

suit against the defendant. In pursuance of the letter of

subrogation and special power of attorney the plaintiff No.1 is

authorized to file the present suit against the defendant for

recovery of the damaged consignment. The plaintiff No.1

received acknowledgment of the registered letter from the

defendant. Hence, the present for recovery of Rs.44,605/-.

MGP, J sa_43_2003

b) In reply to the plaint averments, the defendant filed

written statement denying the plaint allegations and the brief

averments of the written statement are as under:

i) The defendant denied that it had not taken proper care

and caution while transporting the consignment and in fact the

defendant is no way concerned with the reasons for the damage.

The receipt of letter issued by the plaintiff No.2 on 03.06.1995

and damage certificate issued by the defendant is also false.

The damage certificate was issued on 15.12.19963 after a long

gap of more than six months. In case any letter was addressed

by the plaintiff that was done in the month of December but not

as stated on 03.06.1995. The transaction will fall under the law

covered by Indian Carriers Act and Accordingly to Section10 of

the Act, a notice within a period of six months from the date of

incident is a must. No notice was served under Section 10 of

the Carriers Act.

ii) The defendant is not a party to the said survey and the

survey was done after six months in the absence of the

defendant is placed before the Court. There was no damage

caused due to negligence of the defendant. There is no cause of

action for the suit and there was no payment of any money

MGP, J sa_43_2003

towards damage by this defendant to plaintiff No.2, hence,

prayed to dismiss the suit with exemplary costs.

c) During the court of trial, on behalf of plaintiff, PW1 was

examined and Exs.A1 to A12 were marked. On behalf of

defendant, DW1 was examined but no documentary was

adduced.

d) The trial Court after considering the rival contentions,

decreed the suit in favour of plaintiff against the defendant for a

sum of Rs.44,605/- with subsequent interest @10% per annum

from the date of suit till the date of realization. Aggrieved by the

judgment and decree, the defendant filed the appeal before the

learned XIV Additional Chief Judge, City Civil Court, Hyderabad

vide A.S.No.215 of 2001, which was also dismissed on

29.07.2002. Aggrieved by the concurrent finding given by the

trial Court as well as first appellate Court, the defendant has

filed the present appeal to set aside the impugned judgments.

4. Heard both sides and perused the record including the

grounds of appeal.

5. The substantial question that was raised by the

defendant before this Court is that whether the trial Court as

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well as first appellate Court justified in holding that the

insurance company can file the suit against the common carrier

even in the absence of notice as mandatorily promised for under

Section 10 of the Carriers Act. In support of the said

contention, the learned counsel for the defendant relied upon a

decision in P. Rama Rao v. P. Nirmala and others 1. Per

contra, in National Insurance Company Limited and another

v. Om Prakash Poddar 2 the High Court of Judicature at

Calcutta observed as under:

"7. It will be seen from the aforesaid section that a suit as against a common carrier is barred for the loss of, or injury to goods without giving him a notice as prescribed. The present suit, however is not a suit directly for loss of, or injury to goods, but is a suit by an insurer which has arisen by reason of such loss or injury. Significantly the words of S. 10 do not cover suits which are only in relation to the loss of, or injury to goods, but the express words of the section only cover those direct primary suits which are themselves for the loss of, or injury to the goods."

6. In Asseemm Logistrics v. DARCL Logistics Limited

and another Absolutely there is no doubt that the Carriers Act,

1865 vide Section 10 provided that no suit shall be instituted

against the common carrier for the loss of, or injury to, goods

including containers, pallets or similar articles of transport

entrusted for carriage, unless a notice in writing for such loss of

injury is given before the institution of the suit within six

1 AIR 1997 Supreme Court 1923 2 1993 ACJ 616

MGP, J sa_43_2003

months of the loss coming to the knowledge of the plaintiff.

Now, the question to be adjudicated is whether the plaintiffs

have issued notice as required under Section 10 of the Carriers

Act to the defendant.

7. As seen from the evidence of Administrative Officer of

plaintiff No.1, who was examined as PW1, the driver of

defendant endorsed regarding the damage of tubes under Ex.A4

and plaintiff No.2 issued notice to the defendant on 03.06.1995

about the damage of the consignment. The plaintiff also

appointed J.P. Boda to investigate the facts of the case as

surveyor, who submitted a report under Ex.A7.

8. It is the contention of the plaintiffs that notice under

Section 10 of the Carriers Act was issued to the defendant

under Ex.A5. A perusal of Ex.A5, it is clear that notice under

Section 10 of the Carriers Act was issued by the plaintiffs to the

defendant. On the other hand, as can be seen from the cross

examination of PW1, it is the contention of the defendant that

there is no seal on Ex.A5, as such it is fabricated document.

The trial Court in the judgment at paragraph No.9 observed

that there was no specific denial of the contents of Ex.A5. It is

also the contention of the defendant that Ex.A5 was issued in

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the month of December and not on 03.06.1995 and in reply the

trial Court observed that the defendant has not taken any steps

to disprove the documentary evidence of Ex.A5. It is pertinent

to mention that the defendant has admitted about the issuance

of damage certificate dated 15.12.1995, which also do not have

the seal. It is specific contention of the defendant that the

signature on Ex.A5 does not belong to his employee. If such is

the case, the defendant ought to have submitted list of the

employees working under it in order to establish that there is no

such person, who has subscribed his signature on Ex.A5,

working under it during the relevant point of time. But there is

no such instance. Except giving suggestions that the plaintiffs

have not issued the notice as mandated under Section 10 of the

Carriers Act, there is no material placed by the defendant either

before the trial court or first appellate court. Mere assertions

are not sufficient to establish a particular contention. Thus, the

contention of the defendant that Ex.A5 cannot be accepted in

view of lack of its seal, is unsustainable.

9. From the above discussion, though the defendant denied

to have received notice as mandated under Section 10 of the

Carriers Act, it is amply clear that plaintiff has issued notice

under Section 10 of the Carriers Act under Ex.A5 to the

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defendant.

10. As can be seen from Ex.A4, the driver of the defendant

has endorsed that 18 colour picture tubes were delivered in

damaged condition. However, the defendant contended that

there is no negligence on the part of the driver of the defendant

in causing damage to the consignment. It is pertinent to note

that when the defendant is denying negligence on the part of his

driver, then the defendant has to establish the same. But in

the case on hand, except examining DW1, there is no material

to establish the case of the defendant in denying the claim of

the plaintiff.

11. There is no dispute that the consignment was issued by

plaintiff No.2 to the defendant. There is also no dispute that

out of 320 colour tube pictures, 18 colour tube pictures were

delivered in damaged condition. As rightly observed by the first

appellate court in the impugned judgment, once some of the

goods were delivered in damaged condition, it is the defendant,

who has to explain as to what was the reason for delivering the

goods in damaged condition. Though DW1 was examined on

behalf of the defendant, he has no personal knowledge with

regard to the delivering goods to the plaintiff No.2 in damaged

MGP, J sa_43_2003

condition. The first appellate Court in the impugned judgment

at page No.7 observed that when once, it is proved that the

goods entrusted to the carrier were damaged during the transit

and there is no evidence on the side of the defendant that the

damage was not due to their negligence, in view of the Sections

8 and 9 of the Carriers Act, 1996, the damage was caused due

to the negligence of the carriers and the carrier shall be liable to

the owner for the loss or damage to any property delivered to

such carrier.

12. As per the report of the surveyor under Ex.A7 chemicals

from other cargo spilled on 20 colour picture tubes and due to

the spillage of the chemicals, the damage was caused to the

picture tubes. The defendant has issued damage certificate

under Ex.A6 dated 15.12.1995 to plaintiff No.2 wherein it was

stated that at the time of the delivery of goods, 18 colour picture

tubes were damaged due to the spillage of the chemicals spread

on the same and one picture tube is in broken condition. The

defendant has not denied Ex.A6.

13. A perusal of the record discloses that both the Courts below

concurrently held that the plaintiffs have established their claim.

Though the learned counsel for appellant vehemently argued that

MGP, J sa_43_2003

the trial Court decreed the suit without proper appreciation of the

evidence and the first appellate Court also committed an error in

confirming the judgment and decree passed by the trial Court, in

fact, all the grounds raised in this appeal are factual in nature and

do not qualify as the substantial questions of law in terms of Section

100 of the Code of Civil Procedure. It is well settled principle of law

by a catena of decisions of the Honourable Supreme Court that in

the Second Appeal filed under Section 100 of the Code of Civil

Procedure, this Court cannot interfere with the concurrent findings

arrived at by the trial Court and first Appellate Court that are based

on proper appreciation of the oral and documentary evidence on

record. Further, in Gurdev Kaur v. Kaki 3, the Honourable

Supreme Court observed that the High Court sitting in Second

Appeal cannot examine the evidence once again as a third trial Court

and the power under Section 100 C.P.C. is very limited and it can be

exercised only where a substantial question of law is raised and fell

for consideration. In Suresh Lataruji Ramteke V. Sau. Sumanbai

Pandurang Petkar and others 4 the Honourable Supreme

Court observed as under:

3 (2007) 1 Supreme Court Cases 546

4 2023 Live Law (SC) 821

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"16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Alireferring to various other cases held:-

a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse.

b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity.

c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

17. Jurisdiction under second appeal not to be exercised merely because an alternate view is possible. It was observed in Hamida v. Mohd. Khalil:

7. ...The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible."

This position was reiterated by Avtar Singh & Ors. v. Bimla Devi & Ors. In aid of such a restricted application, an essential aspect in ensuring that it does not acquire the nature of a "third appeal" is the limited possibility of appreciation of evidence and connectedly, the restriction on upturning concurrent findings of fact. However, there are certain exceptions to the rule as pointed out by this Court in Nazir Mohamed v. J. Kamala, as under:

"33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognised exceptions are where: (i) the courts below have ignored material evidence or acted on no evidence;

(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

17.2 The extent of the same may be underscored by the observation that:

"32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V.

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Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar , AIR 1963 SC 302] . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter."

14. In view of the principle laid down in the above said decisions

and having considered the rival contentions and entire material

available on record and the findings recorded by the trial Court as

well as the first Appellate Court, this Court finds no ground or

reason warranting interference with the said concurrent findings,

under Section 100 C.P.C. Moreover, the grounds raised by the

appellants are factual in nature and no question of law much less a

substantial question of law arises for consideration in this Second

Appeal.

15. In view of the above facts and circumstances, this Court do

not find any merits in the appeal to set aside the impugned

judgment and in fact, the trial Court has elaborately discussed all