24 Oct 2009

Carriers presumed liable for damage in transit !!!

Stating the obvious, the Delhi High Court in a recent decision has reiterated the 150 year old law to declare a public (transport) carrier liable for for loss of goods during transport for presumed acts of negligence. The Carriers Act of 1855 provides that "in any suit brought against a common carrier for the loss, damage or non-delivery of goods including containers, pallets or similar articles of transport used to consolidate 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 servants or agents." 

"In Arvind Mills –vs- Associated Roadways 2004 (11) SCC 545, the Supreme Court remarked that Section 9 is a procedural provision, enjoining that a presumption should be drawn about carrier’s liability. Hussainbhai –vs- Motilal Agarwal AIR 1963 Bom 208, a Division Bench ruling of the Bombay High Court, establishes that the presumption of liability without proof of negligence arises, by virtue of Section 9 and the onus of proving an exception to that rule, is upon the carrier", noted the High Court to hold the public carrier liable in this case, which was brought about by an insurance company (on payment of claim of the insured) against the transport company for damage of the colour television sets during transport from Delhi to Chennai.

In these circumstances, the High Court allowed the claim of the insurance company against the transporter observing thus "in this case, the plaintiffs have proved existence of an insurance policy, that it covered the consigned goods; the plaintiffs also proved that the consignment was accepted by Bombay Transport, for a consideration, and it issued a consignment note; the goods were to be delivered at Chennai, to KELTRON. The certificate issued by Bombay Transport, after the consignee protested about the condition of the goods, establishes that the goods were damaged while in the custody of the carrier. The insurer appointed a surveryor; its report establishes the extent of damage. The insurer paid the insured (Jupiter) the amount, in accordance with the surveyor’s valuation; Jupiter issued a subrogation letter authorizing United India, to claim the sum from the carrier. These are proved by clear documentary evidence. The defendant, on the other hand, has not cared to prosecute these proceedings, and enter its defence. In these circumstances, it did not discharge the onus which lay upon it, by virtue of Section 9 of the Carriers Act. The basic claim of the plaintiffs, therefore, has to succeed."

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