AS/19/1995 of SHIVASHAKTI TRASPORT ADILABAD. Vs UTTAMCHAND KATARIA AKOLA on 3 December 2002

THE HON’BLE SRI JUSTICE GODA RAGHURAMANDTHE HON'BLE SRI JUSTICE N.RAVI SHANKAR

APPEAL SUIT No.19 of 1995

JUDGMENT:(Per THE HON'BLE SRI JUSTICE N. RAVI SHANKAR)

Heard Sri Sharad Sanghi, learned counsel for the appellantsand Sri Pratap Narayan Sanghi, learned counsel for therespondents.

2. The original appellant Sivaprasad Dhoot who is said to bethe proprietor of Sivasakthi Transport of Adilabad is the defendantin O.S.No.30 of 1992 on the file of the Court of District Judge,Adilabad (trial court). The said suit was decreed with costs by thetrial court on 26.09.1994 for a sum of Rs.3,35,445-40 ps withfuture interest at 18% per annum on the sum of Rs.3,06,639-32 psfrom the date of the suit till realization. Questioning the same thisappeal has been filed. Pending the appeal, the original appellantdied and thereafter his wife and sons came on record asappellants 2 to 5 as his legal representatives.

3. The matter pertains to a claim for compensation for thevalue of the goods entrusted to the appellant for transport andwhich are said to have been lost in transit. For convenience, theparties shall hereafter be referred as they are arrayed in the suit.

4. The defendant admittedly was the proprietor of SivasakthiTransport and the plaintiff says that he was a common carrierwithin the meaning of the Carriers Act, 1865 (for short Act). Theplaintiff’s version is that on 28.01.1992 he entrusted to thedefendant 50 bales of cotton more fully described in Ex.A.2despatch advice worth Rs.3,06,639-32 ps at Adilabad to be delivered to the consignee M/s.Crystal Spinners of Udmalpet inTamilnadu. The freight charges are stated to be Rs.10,000/- out ofwhich the plaintiff paid Rs.3,000/-. The defendant despatched thesame to the destination through lorry No.TAX 1733. However, thegoods did not reach the destination and the plaintiff informed thesame to the defendant on 17.02.1992. In spite of several requestsfrom the plaintiff the defendant failed to deliver the goods to theconsignee and the goods were not traced.

5. The plea of the plaintiff is that the defendant being a commoncarrier is solely responsible for the loss of goods and therefore heis entitled to recover the same from him. The plaintiff valued thegoods/loss at Rs.3,06,639-32 ps. He has also referred to thenotices and the replies given by the defendant. The plaintifftherefore claims Rs.3,06,639-32 ps plus the advance freightcharges of Rs.3,000/- together with interest at 18% per annumfrom 28.01.1992 till payment.

6. The defendant in his written statement denied that he is acarrier. His version is that the plaintiff himself contacted thedriver of the aforesaid lorry and arranged for the transport bysettling the freight charges at Rs.10,000/- and paid Rs.3,000/- asadvance to the lorry driver. His further plea is that he merelyacted as a broker in arranging the lorry and took only an amount ofRs.200/- towards brokerage in arranging the lorry and thattherefore is not responsible for the loss of goods. His furtherversion is that after learning about the loss of goods from theplaintiff he gave a report to the police and it was registered asCrime No.34/1992 in Adilabad Town Police Station and the matterwas under investigation and what happened to the goods has to beascertained and the plaintiff filed the suit in haste. The furtherversion of the defendant is that the lorry owner Mr.N.Rajagopal of Tiruchirapalli and the lorry driver Mr. T.Nagarajan of the sameplace are necessary parties and the suit is also bad for their non-joinder.

7. The trial court considered the evidence of P.W.1 AswinKumar who is the special power of attorney holder of the plaintiff(consignor) of the cotton bales in question; the evidence of D.W.1Sivaprasad Dhoot himself who is the proprietor of the defendantconcern; Ex.A.3 receipt (lorry receipt) which was issued in thename of Sivasakthi Transport of D.W.1 and accepted the case ofthe plaintiff. It rejected that D.W.1 was a mere broker. It thenconsidered the question of non-joinder of the lorry owner and thedriver and held that there was no privity of contract between theplaintiff and the lorry driver or its owner and concluded that thedefendant was a carrier and liable for the claim as the goods werelost. These findings are questioned by the learned counsel for theappellants who are the legal representatives of the originaldefendant as contrary to evidence.

8. We have gone through the evidence of P.W.1 and D.W.1,Exs.A.1 to A.11 documents filed by the plaintiff and are of theopinion that there is no ground to disturb the above findings of thetrial court for the following reasons.

9. On the first point as to whether there is entrustment of goodsto the defendant by the plaintiff, it may be noted that Ex.A.3 lorryreceipt which is admitted by D.W.1 would show that his concerni.e. Sivasakthi Transport received the consignment and it readsthat the total freight charges were fixed at Rs.10,000/- for 50 balesi.e. Rs.200/- per bale, and further he received Rs.3,000/- towardsadvance and Rs.7000/- was still due. Nothing has been elicitedfrom the cross-examination of D.W.1 to disbelieve Ex.A.3. Further nothing is also elicited from the cross-examination of P.W.1 tohold that the plaintiff directly entrusted the goods to the driver ofthe aforesaid lorry and D.W.1 merely acted as a broker. Ex.A.3clearly shows that it was issued by Sivasakthi Transport which isthe concern of the original defendant i.e. D.W.1. Thus D.W.1 hasto be treated as the carrier within the meaning of the Act.

10. So far as the question relating to loss of goods is concerned,the evidence of D.W.1 himself would show that they were notdelivered to the consignee and there is no explanation from him asto what happened to the goods. The goods are cotton bales anddo not fall under the schedule to the Act. It therefore follows thatthe defendant cannot escape liability or restrict his liability in anymanner by relying upon Section 3 of the Act. Thus as held by thetrial court the defendant being a common carrier would becomeliable for the loss of the goods. The matter however does not endhere.

11. It may be noted that a consignor, to recover the amountclaimed by him towards value of goods entrusted to a carrier,should not only prove entrustment of goods and their loss but hasalso to prove that the goods entrusted are of the value claimed byhim. We will now take up this requirement of proof regarding valueas the third question.

12. In the plaint the plaintiff has in para-5 thereof clearly statedthat the value of the cotton bales in question is Rs.3,06,639-32 psand claimed that the defendant having undertaken to transport thesame to the consignee is liable for the loss of the said cottonbales/goods as he failed to deliver the same to the consignee or tothe plaintiff. He also claimed Rs.3,000/- paid to the defendanttowards part of the freight charges. The defendant, it should be noted, while answering the averments in para-5 of the plaintnowhere specifically denied the plaintiff’s claim that the value ofthe cotton bales was Rs.3,06,639-32 ps. He merely reiterated hisdefence that he is not a carrier, he gave police report and the suitwas filed in haste. We have already rejected his plea in thatbehalf. In fact in the entire written statement there is no specificdenial by the defendant about the value of the cotton balesmentioned and claimed by the plaintiff.

13. It should also be noted that prior to filing of the suit theplaintiff got issued the original of Ex.A.6 notice to the defendantwherein also he specifically mentioned and claimed that the valueof the cotton bales was Rs.3,06,639-32 ps. The defendant gotissued Ex.A.8 reply dated 12.05.1992. Even in that reply thedefendant only took the plea that he was not the carrier but actedas only a broker. He did not deny the value of the goods. Thedefendant Sivaprasad as D.W.1 in his evidence also did not denythe value of the cotton bales. Even the cross-examination ofP.W.1 would show that the defendant’s counsel in the trial courtdid not question P.W.1 about the value of the goods. We havementioned the above circumstances, apart from the averments inthe written statement, only to show how the defendant conductedhis defence.

14. It may now be noted that a combined reading of Rules 3, 4and 5 of Order VIII of the Code of Civil Procedure, 1908 (for shortCode), would show that the defendant has to specifically denyeach and every allegation made in the plaint and a mere evasivedenial is not enough and in such a situation the allegations or thecase set out in the plaint must be deemed to have been admitted. It is of-course true that Rule 3 of Order VIII of the Code regardingspecific denial creates an exception with regard to damages. The plaintiff did not make any claim for damages here, but he claimedthe value of the goods i.e. cotton bales which were lost in transitand which were not traced. In such a situation the aboveexception cannot come to the rescue of the defendant. In thecircumstances the defendant must be deemed to have admittedthe plaintiff’s claim regarding the value of the goods.

15. From his side, the plaintiff examined P.W.1 about the valueof the goods and filed Ex.A.2 copy of the invoice despatched to theconsignee, which also shows that the value of the cotton bales isRs.3,06,639-32 ps. Normally this evidence let in by the plaintiffmay not be held to be sufficient to uphold the case of the plaintiffas may be treated as self-serving testimony but thataspect will assume importance only if there is a specific denial bythe defendant regarding the value of the goods which is not thecase here.

16. It may however be noted that the proviso to sub-rule 1 ofRule 5 of Order VIII of the Code reads that a discretion is given tothe court to require any facts to be proved by the opposite partyeven if it is admitted. It is true that this discretion is conferredupon the court, but in the face of the above written statement ofthe defendant, the failure of the defendant to deny the value of thegoods even in his Ex.A.8 reply and his failure to cross-examineP.W.1 to show that the value of the goods will not be equal to theamount claimed by the plaintiff, we are of the opinion that thiscourt need not exercise the above discretion and call upon theplaintiff to prove the value of the goods independently ignoring theabove circumstances which weigh against the defendant. Accordingly, we answer the question relating to the value of thegoods also in favour of the plaintiff.

17. Even with regard to the plaintiff’s claim for Rs.3,000/- paidtowards advance freight charges out of Rs.10,000/-, Ex.A.3 lorryreceipt shows that the defendant did receive Rs.3,000/- asadvance freight charges. There is no reason to reject this claim ofthe plaintiff. We accordingly hold that plaintiff is entitled to refundof this amount of Rs.3,000/- also for the aforesaid reasons.

18. That takes us to the question of interest. The plaintiffclaimed interest at the rate of 18% per annum on the amount ofRs.3,06,639-32 ps (value of the goods and advance freightcharges) from 28.01.1992 i.e. the date of entrustment ofconsignment to the defendant. The trial court granted 18% intereston the sum of Rs.3,06,639-32 ps from the date of the suit. Thisrate of interest i.e. 18% per annum, having regard to thetransaction in the case which can be said to be a commercialtransaction, cannot be said to be unreasonable especially when itis granted from the date of the suit.

19. Regarding the liability of the appellants for the suit claim, itshould be noted that the present appellants are the legalrepresentatives of the deceased defendant. Nothing has beenbrought to our notice to hold that they would be personally liablefor the suit claim.

20. For the aforesaid reasons, we are of the opinion that thisappeal must fail and it is accordingly dismissed with costs holdingthe appellants liable to the suit claim only to the extent of theproperty of the deceased which has come to their hands and hasnot been duly disposed of. Any amount paid by the originaldefendant or appellants shall be given credit to and adjustedagainst the suit claim. All the civil miscellaneous petitions in theappeal shall stand disposed of according to the result of this appeal.

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GODA RAGHURAM, J

25[th] JUNE 2012CVRK

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N. RAVI SHANKAR, J

THE HON’BLE SRI JUSTICE GODA RAGHURAMAND

THE HON'BLE SRI JUSTICE N.RAVI SHANKAR

CVRK

APPEAL SUIT No.19 of 1995(Per THE HON'BLE SRI JUSTICE N. RAVI SHANKAR)

25[th] JUNE 2012