1. The Appellant/Plaintiff has filed the instant Second Appeal before this Court as against the Judgment and Decree dated 31/3/2004 in A.S.No.17 of 1995 passed by the First Appellate Court viz., the Learned District Principal Judge, Tuticorin, in confirming the Judgment and Decree dated 26/8/1992 in O.S.No.113 of 1983 passed by the Learned Sub-Judge, Tuticorin.
2. THE PLAINT SCENARIO OF THE APPELLANT/PLAINTIFF:- The Appellant/Plaintiff is a registered firm and doing business in manufacturing coconut oil under the trade name of 'Ravi Brand'. 30 tins of coconut oil of 'Ravi Brand' of 16 kilograms per tin were delivered to the Respondent/Defendant on 18/12/1979 at Tuticorin as per delivery note No.624593 along Bill No.690 for Rs.8,000/- for delivery to the Appellant/Plaintiff's sale depot at Thirumangalam. The lorry freight charges of Rs.22.50 was pre-paid.
3. The goods were not delivered to the Appellant/Plaintiff's sales depot at Thirumangalam. Oral demands for delivery of goods in a good and marketable condition were of no use. Therefore, the Appellant/Plaintiff was perforced to issue a notice dated 4/1/1980 through a lawyer asking for delivery in a good and marketable condition or to pay the value of the goods, viz., Rs.8,000/- together with interest at 18% and also the lorry charges. The Respondent/Defendant on receiving the lawyer's notice on 5/1/1980 sent a belated reply with false allegations. Hence, the suit has been laid for the value of 30 tins of coconut oil estimated at Rs.8,000/- together with interest at 18% p.a., from 18/12/1979 to 18/1/1980 for one month at Rs.120/- and for a lorry freight charges at Rs.2,250/- and in all, a sum of Rs.8,142.50 has been claimed.
4. The Appellant/Plaintiff has sought a relief of the decree being passed against the Respondent/Defendant for a sum of Rs.8,142.50 paise.
5. THE WRITTEN STATEMENT AVERMENTS OF THE Respondent/DEFENDANT: It is not correct to state that 30 tins of coconut oils have been delivered at Thirumangalam depot as sent by the Appellant/Plaintiff. The Appellant/Plaintiff has deliberately suppressed the true facts and has filed the case as against the Respondent/Defendant. The Appellant/Defendant is not entitled to file a case, both in law and on justice.
6. The Respondent/Defendant is a broker in respect of the goods being loaded in the lorries and he is doing the said avocation. In the lorry rent viz., the freight amount/charges, per rupee only 8 paise brokerage commission will be paid by the Appellant/Plaintiff (owner of the goods of the Respondent/Defendant).
7. On 18/12/1979 in lorry bearing Registration No.MDU - 7629 belonging to Kamatchi Pillai in the name of Sethuvaidhiya lingam of Periyakulam, Vadugapatti road, 30 tins of coconut oil has been sent and the said 30 coconut oil tins were sent directly from the mill by loading the same in the lorry, for which the Respondent/Defendant has made necessary arrangements. Except receiving a brokerage commission of Rs.1.80, the Respondent/Defendant is not concerned with the goods sent in the lorry, as referred to supra.
8. The aforesaid lorry together with 30 coconut oil tins with other goods sent in a lorry bearing Registration No.MDU - 7629 was involved in an accident on 18/12/1979 at about 10.30 p.m., in between Kovilpatti and Nalli and the factum of accident has been immediately informed to the Appellant/Plaintiff. The Appellant/Plaintiff came to the accident spot, inspected the damaged oil tins and the coconut oils were filled up in the different tins brought by the Appellant/Plaintiff and the said tins have been brought to the Respondent/Defendant's lorry booking office. The Appellant/Plaintiff informed the Respondent/Defendant that he will take back the filled up coconut oil tins from the booking office of the Respondent/Defendant, but later, those tins have not reached Thirumangalam depot and has falsely issued the notice, for which the Respondent/Defendant has caused a reply dated 23/1/1980 giving true details.
9. In the reply notice, the full address of the lorry owner even though has been given, the oil tins were not taken delivery and further, no action was initiated against the owner of the lorry and falsely, a case has been filed against the Respondent/Defendant.
10. The lorry bearing Registration No.MDU - 7629 belonging to Kamatchi Pillai was involved in the accident and the coconut oil tins were damaged, for which course, the Respondent/Defendant was not responsible. Therefore, the suit filed against the Respondent/Defendant was liable to be dismissed. For not impleading the owner of the lorry, the suit has to be dismissed for non-joinder of necessary and proper party. There was no cause of action for filing of the suit by the Appellant/Plaintiff. The amount claimed in the suit/plaint was not to be paid by the Respondent/Defendant.
11. Before the trial Court in the main suit, 1 to 5 issues have been framed for determination. On the side of the Appellant/Plaintiff, witness P.W.1 was examined and Exs.A.1 to A.7 were marked. On the side of the Respondent/Defendant, D.W.1 was examined. No document was marked.
12. The trial Court, on an appreciation of oral and documentary evidence on record, came to a clear conclusion that the Respondent/Defendant was only a lorry broker with whom, the goods were not entrusted and further, the owner of the lorry was not joined as a party to the suit proceeding and resultantly, dismissed the suit with costs.
13. As an aggrieved person, feeling aggrieved, the Appellant/Plaintiff filed A.S.No.17 of 1995 before the First Appellate Court viz., the Learned Principal District Judge, Tuticorin.
14. The First Appellate Court, viz., Principal District Judge, Tuticorin, after framing 1 to 5 points for determination has come to a conclusion that the Respondent/Defendant is only a 'broker' and he has no connection with the goods loaded in the lorry etc., and dismissed the appeal with costs, thereby confirmed the Judgment and Decree of the trial Court in O.S.No.113 of 1983. Being dissatisfied with the Judgment and Decree of the First Appellate Court in A.S.No.17 of 1995 dated 31/3/2004 passed by the Learned Principal District Judge, Tuticorin, the Appellant/Plaintiff has preferred the present Second Appeal before this Court.
15. At the time of admission of the Second Appeal, this Court has formulated the following substantial question of law for consideration:-
(i). Whether the findings of the Courts below is vitiated by failure to consider the admission of D.W.1 regarding entrustment of the goods for transport delivery of goods of the request of the Appellant corroborated by Exs.A.3 and A.4?
16. THE CONTENTIONS, DISCUSSION AND FINDING ON SUBSTANTIAL QUESTION OF LAW (i):- The Learned counsel appearing for the Appellant/Plaintiff urges before this Court that the Judgment and Decree of the trial Court in O.S.No.113 of 1983 dated 26/8/1992 and the Judgment and Decree of the First Appellate Court dated 31/3/2004 in A.S.No.17 of 1995 are contrary to law and further, both the Courts have not adverted to the specific allegations as regards the entrustment of the goods to the Respondent for the purpose of delivery at Thirumangalam, which has not been denied and disputed.
17. Advancing his arguments, the Learned counsel for the Appellant/Plaintiff, contends that the conclusion arrived at by both the Courts that the Respondent/Defendant only acted as a broker and not in any way concerned with the delivery of the goods obviously brushing aside the evidence of P.W.1 and corroborated by Ex.A.3 and Ex.A.4 apart from the admission of D.W.1 himself.
18. Expatiating his submissions, the Learned counsel appearing for the Appellant/Plaintiff projects a plea that both the Courts have committed an error in not adverting to the admission of D.W.1 in the reply notice under Ex.A.7 for the return of the goods by the lorry and retained by him without establishing the very claim of the Appellant/Plaintiff, in regard to the allegations made in the plaint.
19. It is the stand of the Appellant/Plaintiff that the Respondent/Defendant not only acted as a 'broker' but he is running a lorry shed and carrying on the business.
20. In any event, the Learned counsel appearing for the Appellant/Plaintiff contends that the Appellant/Plaintiff entrusted the goods to the Respondent/Defendant for the purpose of transport and delivery and therefore, he alone is squarely responsible for the loss in issue.
21. The liability of a common carrier is that of an insurer. It therefore, follows that notwithstanding the fact that there is no negligence on the part of the common carrier he is liable to compensate the owner of the goods, for the loss of the goods that occurred during transit thereof by the lorry belonging to the carrier, in the considered opinion of this Court.
22. Added further, a common carrier is responsible for the safety of the goods except when the loss is caused by 'Act of God' or 'King's Enemies'.
23. It is to be borne in mind that an absolute liability of the carrier is subject to two exceptions, viz:-
(i). Any special contract that the carrier may choose to enter with the consumer and
(ii). 'Act of God'.
Also, the onus of proof that there is no criminal act or negligence on the part of the carrier or its agent or servants is upon the carrier.
24. Where a loss/damage is caused to the consignments in accident, during transit and the carrier failed to rebut the presumption of negligence as per Section 9 of the Carriers Act, 1865, then the carrier is clearly liable to pay the damages as opined by this Court. Further more, the burden of proving absence of negligence is on the carrier.
25. For a fuller and better appreciation of the facts of the matter in issue, it is useful for this Court to make a reference to the evidence of P.W.1 and D.W.1 in the case.
26. P.W.1 (a partner of the Appellant/Plaintiff's firm) in his evidence has deposed that he is doing the business in the name of 'Ravi Brand' coconut oil and he has a depot at Thirumangalam and for delivery of 30 tins of coconut oil on 12/10/1979, he loaded the said coconut oil tins in a lorry, for which, he paid an amount of Rs.22.50 and that 30 coconut oil tins have been loaded from the factory in the lorry and that the said goods have not been delivered at Thirumangalam and when he questioned the Respondent/Defendant as to the non- delivery of the coconut oil tins, he informed that, he will deliver the same.
27. It is the further evidence of P.W.1 that he issued a lawyer's notice Ex.A.1 dated 4/1/1980 and for which a reply Ex.A.2 dated 20/1/1980 has been sent by the Respondent/Defendant.
28. The case of the Appellant/Plaintiff is that the value of 30 coconut oil tins is Rs.8,000/-.
29. P.W.1 in his further evidence has deposed that in their shop, in Ex.A.3 ledger, at page No.200 in the Respondent/Defendant's account, on 1/3/1980, they have written a sum of Rs.8,000/- in the Respondent/Defendant's account and the daily ledger page 376 which is Ex.A.4.
30. P.W.1 (in his cross-examination) has deposed that in Ex.A.2, he has signed and also the signature of the lorry driver is seen and he has got records to establish that he has delivered the goods to the Respondent/Defendant and he does not remember that in lorry bearing Registration No.MDU-7629, he sent the goods and he does not remember the Registration number of the lorry and that he has paid a sum of Rs.22.50 paise towards lorry rent and that, he has not paid Rs.1.80 paise as brokerage amount.
31. P.W.1's evidence is also to the effect that after Ex.A.2, he has not issued any notice to the owner of the lorry and it is incorrect to state that since the lorry has been involved in the accident, which has carried the goods and that his goods have been damaged and further, only the owner of the lorry should pay the damages.
32. The evidence of P.W.1 is to the effect that he does not know till date as to the fate of the goods given to the Respondent/Defendant.
33. D.W.1 in his evidence has deposed that it is not true to state that 30 tins of coconut oil were entrusted to him for delivering at Thirumangalam depot on 18/12/1977 at a value of Rs.8,000/- and further, he is a lorry broker and he used to get commission 8 paise per rupee and he has made arrangements for loading the goods in MDU lorry bearing Registration No.7629 and that the said lorry belongs to Sethuvaidhiya lingam of Periyakulam, Vadugapatti road, Periyakulam and that when the lorry has been proceeding to Nalli, at that time, it has got capsized and immediately, the Appellant/Plaintiff has been informed about the factum of accident and immediately, the Appellant/Plaintiff has inspected the accident spot and has removed the undamaged coconut oil tins and also the damaged coconut oil tins were filled up in the empty coconut oil tins and they were taken to the mills to the Appellant/Plaintiff.
34. D.W.1 (in his further evidence) has categorically deposed that he has sent a reply notice to the Plaintiff's lawyer's notice that a compensation/damages can be claimed only from the owner of the lorry and Ex.A.7 is the reply notice and he received only a commission of Rs.1.80 for loading the coconut oil tins.
35. As seen from the evidence of P.W.1 and D.W.1 and also from the factual matrix of the case that the lorry bearing Registration No.MDU - 7629 in which 30 coconut oil tins were transported was involved in the accident on 18/12/1979 and admittedly, in O.S.No.113 of 1983 proceedings before the trial Court, the owner of the lorry who transported 30 coconut oil tins was not arrayed as a party to the suit proceedings. Also, the owner of the lorry bearing Registration No.MDU - 7629 viz., Sethuvaidhiyalingam of Pudukottai was not only a necessary party to the suit proceedings but also a proper party for adjudicating the claim of the Appellant/Plaintiff. For the accident that took place on 18/12/1979, the Respondent/Defendant, by any stretch of imagination could not be fastened with the liability of any payment of damages/compensation, much less the damages/compensation claimed a sum of Rs.8,142.50 in the suit. This is because of the simple fact that the Respondent/Defendant only acted as a lorry broker for which he received a commission of Rs.1.80 paise to claim a compensation/damages in respect of the suit sum of Rs.8,142.50 in all, based on the premise that 30 coconut oil tins were not delivered at all to the Appellant/Plaintiff's sale depot at Thirumangalam was not a correct one. As already stated and at the risk of repetition, it is to be pointed out by this Court that the lorry bearing Registration No.MDU - 7629 belonging to Sethuvaithiyalingam of Pudukottai, who transported 30 coconut oil tins on 18/12/1979 got involved in the road accident in between Kovilpatti and Nalli. For making the Respondent/Defendant liable to pay the suit compensation amount, as claimed by the Appellant/Plaintiff, there must be an entrustment of 30 coconut oil tins (goods) with the Respondent/Defendant by the Appellant/Plaintiff. In the instant case on hand, the Respondent/Defendant has only received the brokerage amount and P.W.1 in his evidence has candidly and tacitly admitted that he was informed that coconut oil tins were damaged when the lorry was involved in the accident and this fact, he was aware of the same on the very same night. One cannot loose sight of an important fact that, as per Carriers Act, a lorry owner is squarely responsible for the damages in regard to the non-delivery of the case, complained of by an aggrieved party.
36. Continuing further, P.W.1 has clearly deposed that the goods will usually be loaded at the factory itself. In his cross-examination, P.W.1 has also stated that, he does not know whether the Respondent/Defendant owns a lorry or not? Even in the absence of a Privity of Contract between the owner of the lorry and the owner of the goods, the owner of the lorry can be made liable in law for the loss/damages sustained. The non-impleading of the owner of the lorry to the suit proceedings is clearly an aspect which goes against the Appellant/Plaintiff. The owner of the lorry bearing Registration No.MDU - 7629 viz., Sethuvaithiyalingam of Pudukottai was not only a necessary but also a proper party. The non-joinder of the said owner of the lorry was clearly fatal to the proceedings of the suit.
37. On going through the Judgment passed by the trial Court in O.S.No.113 of 1983 dated 26/8/1992 and also the Judgment of the First Appellate Court in A.S.No.17 of 1995 dated 31/3/2004, this Court is of the considered view that both the Courts have concurrently held that the Appellant/Plaintiff has not filed the suit against the owner of the lorry bearing Registration No.MDU - 7629 and instead the suit filed against the Respondent/Defendant viz., the broker of the lorry is not at all maintainable and the said findings arrived at by the Courts below, in the considered opinion of this Court, do not warrant any interference at this distance of time, for the reason that, they do not suffer from any material irregularity or patent illegality, in the considered opinion of this Court.
38. Apart from the above, mere admission of D.W.1 as regards the entrustment of the goods for the transport as alleged to be corroborated by Exs.A.3 and A.4 will not in any way improve or heighten the case of the Appellant/Plaintiff since the facts situation is that the Respondent/Defendant is only a 'broker' and he has acted only in that capacity at the time of transporting 30 coconut oil tins of 'Ravi Brand' on 18/12/1979 and accordingly, the substantial question of law No.(i) is answered against the Appellant/Plaintiff.
39. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the dated 31/3/2004 made in A.S.No.17 of 1995 passed by the First Appellate Court viz., the Learned District Principal Judge, Tuticorin and the Judgment and Decree dated 26/8/1992 made in O.S.No.113 of 1983 passed by the Learned Sub-Judge, Tuticorin are confirmed by this Court, for the reasons assigned in this appeal.