R. Bhaskaran, J.
1. The suit is for recovery of amounts alleged to have been due to the plaintiff as compensation for damage caused to the goods insured by the 1st plaintiff and transported by the defendant. The particular of the claims are detailed in paragraph 3 of the plaint under the heads A to L. The first plaintiff is a Corporation doing General Insurance business; 2nd plaintiff a firm doing business at Mannar; and the defendant is a Private Limited Company doing the business of common Carriers.
2. The facts of the case put in a nut-shell are: the defendant transported goods to Mannar under various lorry receipt numbers; the consignments were booked by the Hindustan Aluminium Corporation Ltd.. for and on behalf of the 2nd plaintiff; the consignments reached Manner in a damaged condition; the 2nd plaintiff took open delivery after paying the freights; the local agent of the defendant issued a damage certificate wherein it was admitted that the packages were in damaged condition, contents water stained, and circles blackened; the goods were subjected to a survey; the goods came into contract with rain water while in the custody of the defendant; the stains were very conspicuous and spread all over the surface; even after buffing, the stains remained, and so the aluminium circles were subjected to reprocessing to mitigate the damage; and the plaintiff suffered damages as shown in the claims, as detailed in paragraph 3 of the plaint under the heads A to L.
3. The defendant contended inter alia as follows: The defendant had no liability to indemnify the plaintiffs as claimed; the plaintiffs were bound to satisfy the defendant that the goods were packed by the consignor in perfect condition; the defendant could not be held liable for in different packing; the packing was done at consignor's risk; the survey mentioned in the plaint were not made after a proper survey conducted in the presence of any accredited representatives of the defendant; the survey reports did not prove any negligence on the part of the defendant; the plaintiffs had not made out a case that the goods were not properly covered after they were entrusted with the defendant; in fact the consignments were carried and delivered in the same condition as they were booked; the defendant had no notice of buffing or reprocessing of goods, as claimed by the plaintiff; no damage certificate had been issued by any of the defendant's authorised representative or agent; even if such certificate were validly issued, such issuance was without prejudice to defendant's rights; the issuance of such certificates, if any, did not constitute any admission of liability on the part of the defendant; the assessment of damages was irregular and objectionable; it was not the invoice priee, but the declared price that had to be taken into consideration, and the latter had to be compared with the market price, the plaintiffs were not justified in using the damaged articles without proper and independent assessment of their value; and they ought to have returned to goods either to the consignee or to the defendant or should have valued them with the intervention of a court.
4. The main submission of the defendant was that the defendant had no liability in a case where it was not proved that after the goods were entrusted to the common carrier viz., the defendant, there was any negligence on the part of the common carrier. The court below rejected the contention finding that the defendant, as a common carrier had a statutory duty to deliver the goods entrusted to it in good condition, that is to say, in the same condition as it was when they were entrusted to it. As for the quantum of damages, the court fixed the amount of Rs. 12,805.70. A decree for that amount with interest at 6% and cost was granted in favour of the plaintiffs. It is feeling aggrieved by this decision of the court below that the appeal has been preferred by the defendant.
5. Shri P. Ramanujan, the counsel for the appellant/defendant, submitted that the trial Court was in error in holding that the liability of the common carrier was absolute in regard to the non-delivery of goods in good condition i.e., in the condition in which they were delivered to the common carrier by the consignor. According to him, there was no evidence in this case that after the goods were entrusted to the common carrier, the common carrier had either shown negligence or committed any criminal act warranting the award of damages in favour of the consignor. In terms of Section 9 of the Carriers Act, 1865, in any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servents or agents.
6. So, in view of the provisions contained in Section 9 of the Act casting an absolute liability on the common carrier for the delivery of the goods entrusted to it in good condition, we are not satisfied by the argument of the appellant-defendant that inasmuch as there was failure on the part of theplaintiff to prove that there was negligence on his part to take proper care of the goods entrusted to him, it was not liable in damages.
7. The counsel for the appellant-defendant then contended that assuming that his liability was absolute, there arises the question as to the quantum of damages to be paid to the plaintiff by the defendant. He argued that 25% of the invoice price of the damaged goods had been fixed by the court below rather arbitrarily despite rejecting Exts. A-l to A-5 reports on which the plaintiffs had been placing reliance. It was contended by Shri Varghese Kalliath, the counsel for the respondent-plaintiff, that in the notices sent by the 1st plaintiff the quantum as now claimed in paragraph 3 of the plaint had been specifically claimed, and that the defendant had not questioned the correctness of the quantum mentioned in the respective notices. According to him, the defendant disputed only his personal liability without questioning the correctness of the quantum of damages claimed in the respective notices. It was therefore submitted by him that once the court found that the defendant's liability to deliver the goods in the condition in which they were entrusted to it by the plaintiffs, it followed that the defendant was liable to pay the damages at the rate at which it was claimed by the plaintiff in the notices issued to the defendant.
8. We find it difficult to agree with the reasoning of the trial Court, in paragraph 25 of the judgment under appeal, reiterated by counsel for the respondent-plaintiffs. In all the letters sent by the defendant in reply to notice sent by the 1st plaintiff claiming payment of damages, the stand taken by the defendant was that he was not liable to pay any damages to the plaintiffs and that the second plaintiff had to look up to the first plaintiff for damages, if any, it had sustained. From this it could not be said that the defendant did not dispute the correctness of the quantum of damages mentioned in the various notices. As a matter of fact, the specific question in regard to the rate of quantum mentioned was not at issue when the notices were exchanged. In paragraph 37 of the written statement, however, the appellant defendant is seen to have stated as follows:
The assessment of damages is irregular and objectionable. It is not the invoiced price but the declared price that it to be taken into consideration and the latter has to be compared with the market price, Plaintiffs were not also justified in using the alleged damaged articles without a proper and independant assessment of their value. They ought to have been returned to the consignor or to this defendant, as the case may be, or valued with the case may be or valued with the intervention of the court in the event of any claim being proposed to be lodged before the court. This defendant is not bound to accept the valuation of damages arbitrarily made by the plaintiffs even granting that any damages had been caused in transit.
This defendant is not bound to accept following all damages arbitrarily made by even now and intervention.
9. In view of this specific contention raised by the defendant putting the plaintiff to prove regarding the quantum of damages, if any, which the plaintiffs were entitled to get from the defendant, it was for the plaintiffs to prove by cogent evidence as to the quantum of damages to which the plaintiffs were entitled. We do not find any evidence on record to enable the court to fix the quantum of damages, if any, to be allowed in favour of the plaintiff in respect of each of the consignments. This being the position, while accepting the position that the defendant is liable in damages when it failed to deliver the goods to the consignee, in the condition in which they were entrusted to it, the quantum of such damages has to be fixed with reference to the evidence in the behalf, and that burden is on the plaintiff.
10. As far as the shortage in delivery is concerned, the defendant is liable to compensate the plaintiffs by paying the invoice price of those items. The counsel for the appellant-defendant has agreed to pay the amount that may be worked out with respect to the shortage in delivery.
11. In the light of the foregoing discussions, we allow the appeal; set aside the judgment and decree of the court below; and remand the matter to that court for fixing the quantum of damages, if any, to which the respondents-plaintiffs are entitled from the defendant. After allowing the parties to adduce evidence, if any, to substantiate the contention of the respective parties, on the question of damages, if any, to which the plaintiffs are entitled, that court would dispose of the matter fixing the quantum of damages, if any, to which the plaintiffs are found entitled. If view of the fact this a suit of 1973 that court would dispose of the matter as expeditiously as possible, at any rate, before 31st March, 1983. There will be no order as to costs in the appeal. The parties will appear before the trial court on the 15th of November, 1982. The court-fee paid on the memorandum of appeal will be refunded to the appellan defendant.