M/S Transport Corporation of India Ltd. v Oriental Insurance Company Ltd and Travancore Rayons Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 24TH DAY OF MAY 2019 / 3RD JYAISHTA, 1941** ## **RFA.No. 389 of 2004** **AGAINST THE DECREE AND JUDGMENT IN OS 453/1994 of PRINCIPAL SUB COURT, NORTH PARAVUR DATED 29-11-2003** ## **APPELLANT/DEFENDANT:** **M/S. TRANSPORT CORPORATION OF INDIA LTD. 10, RAMBOGH, OLD ROHTAK ROAD, NEW DELHI-7.** **BY ADVS. SRI.T.V.GEORGE SMT.LINDA GEORGE SRI.SAIBY JOSE** ## **RESPONDENTS/PLAINTIFFS:** **1 ORIENTAL INSURANCE COMPANY LTD, REP.BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, PATTAMANA BUILDING, ALUVA.** **2 THE TRAVANCORE RAYONS LTD RAYONPURAM, KERALA, REP. BY ITS POWER OF ATTORNEY HOLDER, THE 1ST PLAINTIFF.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No. 389 of 2004** **2** ## **JUDGMENT** The defendant in O.S.No.453/1994 on the file of the Principal Sub Court, North Paravur is the appellant. The appellant/defendant (herein after referred to the defendant) is challenging the judgment and decree dated 29.11.2003 allowing the plaintiff/first respondent to recover a sum of Rs.76,936.94/- with interest at the rate of 18% per annum from the date of the suit till realisation from the defendant. 2. The brief facts for disposal of the appeal are as follows: The first plaintiff is an Insurance Company. The second plaintiff is a public limited company engaged in manufacturing of rayon materials. The defendant is a carrier company. On 28.8.1992 the second plaintiff sent 48 cases of 960 reams of Trayophane cellulose film sheets as per LR No.P80312 to the godown at Delhi for M/s.Sudarshan Paper Mart a distributor of the consigner through the defendant. When it was delivered some defects were noted in some of the consignments and the damages were assessed by a Surveyor and thereafter complying with all the formalities on the basis of letter of subrogation and power of attorney of the second plaintiff an amount of Rs.70,105/- was claimed by the 1[st] plaintiff. **RFA.No. 389 of 2004** **3** 3. Defendant, the carrier company has denied the allegations levelled against the company and the claim was denied on various grounds. Firstly it was contended that since consignee was not made as a party, the suit was bad for non joinder for parties. It is further contended that the power of attorney and letter of subrogation are not valid documents. Further contention is that though quantity of the damages was assessed it was without any basis and it was not caused in transit and hence, the plaintiff was not entitled to realise any amount. It was also contended that the survey was conducted behind their back and damages were caused not because of any negligent or careless acts in handling the goods, but it was after the delivery of the goods while it was in the hands of the consignee. 4. Before the court below, an official from the first plaintiff company was examined as PW1. Apart from his evidence Exts.A1 to A15 were marked on the side of the plaintiff. No oral or documentary evidence was adduced on the side of the defendant/company. The court below after evaluating the entire evidence decreed the suit as referred above. Feeling aggrieved by the judgment and decree, the carrier company has filed this appeal. 5. Heard T.V. George, the learned Counsel for the appellant/defendant and Adv.Sri.P.Jacob Mathew the learned counsel for the Insurance Company. **RFA.No. 389 of 2004** **4** 6. Admittedly, 48 cases of 960 reams of Trayophane cellulose film sheets were transported by the defendant/company as the carrier to deliver it to M/s. Sudarshan Paper Mart, Delhi at their godown. The consignments were sent on 28.8.1992 by the second plaintiff, the Travancore Rayons Limited. It is also not in dispute that the consignments were delievered at the godown of the consignee ie M/s. Sudarshan Paper Mart on 7.9.1992. The case of the plaintiffs is that when the goods were verified on 29.9.1992 it was found that certain items were damaged and it was found on the strength of Ext.A3 Survey Report dated 23.10.1992 that the damages were caused to the consignment in transit. Ext.A12 is the policy and Ext.A8 is the copy of the claim disbursement voucher. Ext.A10 is the letter of subrogation executed by the second plaintiff in favour of the first plaintiff. It is pertinent to note that the goods were delivered at Delhi, the godown of the consignee. The consignee is not a party in the suit. The goods were inspected and the damages were detected on the basis of the survey report conducted only on 29.9.1992. So it is revealed from the records that the goods were remaining in the custody and possession of the consignee from 7.9.1992 till 29.9.1992, the date of inspection by the Surveyor. 7. The question involved in this case is whether the carrier is liable to pay any amount as damages to the plaintiffs more precisely **RFA.No. 389 of 2004 5** to the Insurance Company. It is argued by the learned counsel that the judgment and decree mainly revolved on two points. Ext.A11 (special power-of-attorney by the 2[nd] plaintiff) is an invalid document and on the basis of Ext.A11 the first plaintiff is not entitled to realise any amount from the defendants. The learned counsel relies on Section 85 of the Evidence Act which reads as follows. ## “ **85** . **Presumption as to power-of-attorney** The court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul or representative of the [Central Government], was so executed and authenticated.” 8. It was contended by the learned counsel for the defendant that Ext.A11 was not executed and authenticated before the Notary Public as mandated under Section 85 of the Evidence Act. 9. The learned Counsel relies on the decision in **M/s.Electric Construction and Equipment Co.Ltd., v. M/s. Jagjit Electric Works, Sirsa (Haryana) (AIR 1984 Delhi 363)** to fortify his argument that the power of attorney is an invalid document. It has been held in paragraph 8 as follows: “It is useful to note that Section 85 raises a presumption about the execution of a Power of Attorney provided two conditions are satisfied. Firstly, it must be executed before a Notary Public and secondly, it must be authenticated by a **RFA.No. 389 of 2004** **6** Notary Public. In this case, there is no authentication at all. There is no statement of facts by the Notary Public regarding the manner of execution or the persons executing the document.” It is pointed out by the learned counsel for the defendant that the execution and authentication as mandated under Section 85 of the Evidence Act has not been complied with and hence the document can only be treated as an invalid document. ## 10. But it is to be noted that the Honourable Supreme Court in **Jugraj Singh and another v. Jaswant Singh and others (AIR 1971 SC 761)** has observed in paragraph 7 that: “...........There is a presumption of regularity of official acts and we are satisfied that he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This makes the second Power of attorney valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act.” 11. Here it is to be noted that Ext.A11 was executed and signed before the notary. In view of the decision of the Supreme Court in Jugraj Singh's case (supra) it can be concluded that the power of attorney was authenticated by the Notary Public and when such an official act was done as mandated under Section 85 of the Evidence Act Ext.A11 would render as as a valid document and that be so **RFA.No. 389 of 2004** **7** argument of the learned counsel for the defendant that Ext. A11 is an invalid document is only to be rejected. 12. The main issue involved in this case is whether the carrier who had carried the goods to Delhi as entrusted by the second plaintiff has caused the damages and whether the carrier is liable to pay damages to the plaintiff on the basis of the survey report produced and marked in the case as Ext.A3. As referred above, it is pertinent to note that the goods were entrusted on 28.8.1992 and the carrier has delivered the same in the godown of the consignee on 7.9.1992 itself. But damages were noted and the Surveyor had inspected the consignment only on 29.9.1992. So admittedly, from 7.9.1992 till 29.9.1992 the goods were in the possession of the consignee. But the consginee is not made as a party before this Court. The main document relied on by the plaintiff to claim damages from the carrier is Ext.A3 survey report as well Ext.A4 a letter (damage certificate) alleged to have been issued by the carrier to the second plaintiff. At the outset it is to be noted that no one from the office of the second plaintiff who alleged to have received Ext.A4 notice was examined before the court to substantiate its contents. According to the learned counsel for the plaintiffs this letter was issued by the carrier and it was received by the second plaintiff certifying the damage caused to the consignee. But there was no attempt on the side of the plaintiffs to **RFA.No. 389 of 2004 8** examine any of the officers from the office of the carrier so as to substantiate the case that it was issued admitting the damages and loss to the consignment at the time of delivery of the goods at the place of consignee. So at any cost Ext.A4 though marked cannot be relied on. 13. Now the question to be looked into is whether the survey report relied on by the plaintiffs is sufficiently proved and can be accepted to assess the loss for the consignment. It is also to be noted that the surveyor who inspected the property at the premises of the consignee was on 29.9.1992 after 22 days of its delivery at the place of the consignee. Admittedly, no notice was issued regarding the inspection of the consignment by the Surveyor at the premises of the consignee. Without any notice the consignment was inspected and assessment of damages and loss was assessed by the Surveyor and the total loss assessed was Rs.67,102/-. But the Surveyor, who prepared the Survey report was not made as a witness and was not examined before the court to prove its contents. The learned counsel for the defendant has invited my attention to the decision reported **Associated Transport Corporation (P) Ltd. v. National Insurance Co. Ltd. [1989 (1)KLT 386]** . It has been held in this decision by a Division Bench of this Court that only if evidence is adduced to prove the quantum of damages a decree can be granted **RFA.No. 389 of 2004** **9** on the basis of the report submitted by the Surveyor. The facts of the case herein is quite similar to the facts involved in the decision relied on by the learned counsel for the defendant. In paragraph No.11 it has been observed as follows: “11. The counsel for the appellant lastly contended that in any view of the matter the burden is on the plaintiffs to prove the quantum of damages and that they have not adduced any evidence to prove the quantum except producing Ext.A7 certificate by a surveyor. He further contended that though in Exts.A5 and A6 the defendant has admitted damage to 78 bundles and short delivery of the bundles, it has not admitted the quantum of damages which the 2[nd] plaintiff is bound to prove. We feel that there is great force in the contention of the appellant. The only evidence on the basis of which a decree for damages has been granted by the lower court is Ext.A7 dated 12.9.1975 issued by a Surveyor. That report itself says that it was prepared in compliance with the instructions received from the 1[st] plaintiff. No notice is issued to the defendant before the survey is made. The surveyor who prepared Ext.A7 has not been examined to prove the contents of Ext.A7. Moreover, there is not even formal evidence adduced by the 2[nd] plaintiff as to the quantum of damages who alone is competent to prove the same. The only witness examined on the side of the plaintiffs is PW1 who is an officer of the 1[st] plaintiff-Insurance Company. He cannot have any direct knowledge regarding these matters and his evidence is not sufficient to prove the quantum of damages. The mere fact that the 1[st] plaintiff paid the amount to the 2[nd] plaintiff will not be sufficient evidence nor will it bind the defendant who is ultimately liable for damages. In these circumstances, we are constrained to hold that there is absolutely no evidence to prove the quantum of damages and the decree granted by the lower court fixing the damages at Rs.9202/- is without any evidence and is liable to be set aside. As the plaintiffs have not proved the quantum of damages, they are not entitled to a decree for damages and the decree is liable to be **RFA.No. 389 of 2004** **10** set aside.” 14. Here as mentioned above, the Surveyor who prepared Ext.A3 report has not been examined before the court though the report was prepared even without giving a notice. The plaintiffs ought to have examined the Surveyor to prove the contents of the document. The non examination of the Surveyor before the court is definitely a defect on the side of the plaintiffs and such a defect cannot be rectified by a remand of the case as suggested by the learned counsel for the plaintiffs. 15. The plaintiffs are duty bound to prove the document by examining the Surveyor before the court. Though, no notice was issued by the Surveyor or by the second plaintiff before inspecting the consignment and assessing the damages if the surveyor was examined it would have been accepted as the contents were proved properly. So Ext.A3 cannot be relied on to assess the quantum of damages so as to get a decree to realise the same from the defendants. There is lack of evidence and the non examination of the Surveyor is definitely fatal to the case of the plaintiffs. Another Division Bench of this Court in A.S.No.526/2000 in an unreported case involved in M/s. Transport Corporation of India Ltd. v. United India Insurance Co.Ltd. and others observed in paragraph No.6 that when damage is claimed, the basis of its quantification should be proved by the plaintiff. **RFA.No. 389 of 2004** **11** 16. So in short, it could be seen that the plaintiff has failed to adduce cogent evidence to prove the quantum of damages except the report, before the court to claim it from the defendant. No explanation is forthcoming for the failure to examine the surveyor. When the allegation of damages is denied, the plaintiffs are bound to prove it to claim it from carrier. It is not just and proper to rectify those defects after a pretty long time. It is to be noted that the cause of action for the suit arose in the year 1992. The original case was filed by the plaintiffs in the year 1994 and it was disposed of in the year 2003. So also I think that it is not just and proper to remand the case as suggested by the learned counsel for the plaintiffs to cure the material defects and laches on the side of the plaintiffs so as to get a decree for realisation of money from the defendant. Hence, I find that the judgment and decree under challenge are liable to be set aside and I do so. In the result, the appeal is allowed. The judgment and decree under challenge are set aside and the suit is dismissed. The parties are directed to bear their respective costs. **Sd/-** **SHIRCY V.** **JUDGE** smm