S. Sankarasubban, J.
1. This CM. appeal is filed against the judgment in A.S. No. 183 of 1984 of a learned Single Judge of this Court. Defendant is the appellant. O.S. No. 437 of 1980 on the file of the III Additional Sub-Court, Ernakulam was filed by the respondents herein against the present appellant.
The suit was filed by the respondents for recovery of an amount of Rs. 80,560.89. Respondent No. 1 is United India Insurance Co. Ltd. and the respondent No. 2 is the Hindustan Machine Tools Ltd. The suit was filed by the respondents, respondent No. 1 being acting as power of attorney holder of the respondent No. 2.
2. According to the plaint averments, the Hindustan Machine Tools Limited, Kalamassery consigned to the National Aeronautical Laboratory, Bangalore one NH-26/1500 mm Centre Lathe with accessories. The plaintiff No. 2 entrusted the said lathe to the defendant on 3.11.1977 at Kalamassery. Defendant is a carrier. The defendant carried the consignment under G.C. Note No. 15719 dated 3.11.1977. The lathe was entrusted to the defendant for safe carriage and delivery in good order and condition at Bangalore to the National Aeronautical Laboratory, Bangalore. But the consignment was not delivered by the defendant to the consignee in good condition. It fell down from the running lorry at Mekhri Circle in Bangalore and consequently the lathe had suffered extensive damage.
3. The lathe was sent by the consignee to the plaintiff No. 2 for necessary repairs. It was repaired and subsequently delivered to the National Aeronautical Laboratory, Bangalore. The plaintiff No. 2 had insured the lathe with the plaintiff No. 1 at its Divisional Office, Kochi against the loss or damage for Rs. 1,53,993.92. The consignee lodged a claim with the plaintiff No. 1 and the defendant. The plaintiff No. 1 settled the claim by paying to the plaintiff No. 2 a sum of Rs. 53,838.94 for repairing charges and subsequently Rs. 5,900/- towards transportation charges. The damage to the lathe occurred only due to negligence of the employees of the defendant. Therefore, the defendant is liable to make good the loss. It is further stated that the plaintiff No. 2 has given power of attorney to prosecute the suit.
4. A written statement was filed by the defendant. In the written statement, the following contentions were raised. The arrangement was to pay the freight on the consignment at the delivery point by the consignee and the consignee had paid the same on accepting the consignment intact from the Bangalore office of the defendant Company. The entrustment of the consignment to the defendant Company was on 31.10.1977 and not on 3.11.1977. As per the conditions of the contract, only the Court in Secunderabad city will have the jurisdiction. The goods consigned through the defendant were carried at 'owner's risk' only. The consignor had obtained the policy only on 16.11.1977. This is long after the alleged damage/ loss. The defendant was not aware of the loss or damage to the lathe. It was not due to misconduct or negligence of the employees of the defendant. The plaintiffs are not entitled to bring the suit. The suit is incompetent. As soon as the goods are entrusted to the carrier to be carried to the consignee, the property in the goods vested on the consignee, who is the rightful owner. Date of delivery of the package at Bangalore was not mentioned in the plaint. The suit was not properly framed. The plaintiffs are not entitled to any relief.
5. On the basis of the above pleadings, the Trial Court raised five issues. The first issue was whether the Court had jurisdiction to try and decide the suit. This issue was decided preliminary by order dated 10.12.1982. The Trial Court held that the Court had jurisdiction. On behalf of the plaintiffs, Exhs. A-1 to A-11 were marked and on behalf of the defendant, no exhibit was marked. P.Ws. 1 and 2 were examined on behalf of the plaintiffs. No evidence was given on the part of the defendant.
6. The Trail Court, after considering the various issues, had decreed the suit for Rs. 80,560.89. From the judgment and decree of the Trial Court, an appeal was filed before this Court as A.S. No. 183 of 1984. A learned Single Judge of this Court disposed of the appeal by judgment dated 6.8.1997. The learned Single Judge agreed with the Trial Court on all issues except regarding the quantum of damages. The learned Single Judge took the view that no evidence has been given by the plaintiffs to prove the scope and width by which the quantum of damages be determined. The learned Single Judge confirmed the finding that the defendant is liable to pay the damages. The suit was remanded for a limited purpose by giving an opportunity to the plaintiffs to prove the quantum and summon the Surveyor, who submitted Exh. A-5 report. Both parties were given opportunity ' to adduce evidence. It is against that this CM. appeal is filed.
7. Advocate Mr. T.V. George appeared for the appellant and Mr. T. Karunakaran Number appeared for the respondents.
8. The learned Counsel for the appellant raised the following contentions:
(1) Without making the consignee a party to the suit, the suit was not maintainable.
(2) The power of attorney executed by the plaintiff No. 2 in favour of the plaintiff No. 1 has not been validly proved. (3) The insurance policy shows that the policy has been assigned to the defendant. If that be so, the plaintiff No. 1 cannot file a suit. (4) The learned Single Judge should not have remanded the matter, as there was no evidence to show that no opportunity was given to the plaintiffs to prove the Surveyor's report in the Trial Court. Mr. T. Karunakaran Nambiar who appeared for the respondents submitted that the suit was competent even without the consignee and he supported the judgment of the learned Single Judge.
9. Before we go into the various issues in this case, it is seen that neither the plaintiffs nor the defendant have produced the delivery note, on the basis of which, the goods were transported in defendant's lorry. In fact, while trying the question of jurisdiction, the defendant produced only a sample printed form consignment note. The appellant/defendant did not produce the actual consignment note issued in favour of the plaintiff No. 2. The plaintiff No. 2 filed an affidavit stating that copy of the consignment note was not available with them. The Trial Court initially while considering the question of jurisdiction, did not take into consideration the printed consignment note on the ground that there is no provision in that note for the signature of the consignor. We are highlighting this aspect, because a contention has been taken by the defendant that the consignee had become the owner of the property and hence, only the consignee can institute the suit for realising the damages or that the consignee should be made a party to the suit. As a matter of fact, before the Trial Court, an application was filed by the plaintiffs to implead the consignee as additional plaintiff. But that application was not prosecuted and the consignee has not been impleaded.
10. The first question to be considered is whether the suit filed by the plaintiff is maintainable. The contention advanced by the defendant is that the plaintiff No. 2 was not the owner of the goods and hence, the plaintiff No. 2 cannot institute the suit The Insurance Company has joined the suit, because it paid the amount to the plaintiff No 2. Unless the plaintiff No. 1 is entitled to get back the amount from the defendant, the suit is not maintainable. The Trial Court as well as the learned Single Judge relied on the decision reported in St. Joseph Union Tile Works v. Rappai 1978 ACJ 385 (Kerala). Under Section 8 of the Carriers Act, 1865, it is the owner, who is entitled to realise the damages from the carrier. But the decisions have held that it is only when the suit is under the Carriers Act that liability of the carrier is to the owner. Under general law, a consignor can institute a suit against the carrier for realisation of compensation of damages, in case there is a contract to that effect between the carrier and the consignor. One of the earlier decisions is the decision reported in Union of India v. West Punjab Factories Ltd. 1958-65 AC] 602 (SC). That was a case where the goods were transported through Railways and the goods caught fire when it was stored in the railway platform. The question was whether the suit instituted was maintainable. The goods were sent by Birla Cotton Factory, represented by the West Punjab Factories Limited. The contention was that they could not institute a suit, because the consignee has become the owner. Dealing with that, the Apex Court held as follows: "Ordinarily, it is the consignor who can sue if there is damage to the consignment, because the contract of carriage is between the consignor and the railway administration. Where, however, the property in the goods carried has passed from the consignor to consignee, the latter may be able to sue. Whether title to goods has passed from the consignor to the consignee depends on the facts of each case". On the facts, it was held that the property was still with the consignor and hence, it was held that the suit was maintainable.
11. In the decision reported in St. Joseph Union Tile Works v. Rappai 1978 ACJ 385 (Kerala), Kochu Thommen, J. had occasion to consider a similar problem. In that case, it was held that the consignor is entitled to sue the carrier either on the basis of title, if the property in the goods has not passed from him, or on the basis of privity of contract between himself and the carrier for the carriage of goods. If the true owner of the goods has failed to bring an action against the carrier for the loss of or damages to the goods, the law is not without remedy in an action by the consignor merely because the property in the goods has passed from the consignor to the consignee. Ultimately, the learned Judge found that the property in the goods at the material time remained with the plaintiff. The Court found no reason to disagree with that finding and in the light of that finding, it was held that the consignor was entitled to sue the carrier on the basis of title. The same proposition was followed in the decision reported in Savani Transport Pvt. Ltd. v. C. Ahmed Sharif Saheb 1981 ACJ 98 (AP), by the Andhra Pradesh High Court. There, the question was whether the carrier, which was entrusted with the transport of goods was competent to sue another carrier. Dealing with that contention, on the basis of the contract of the parties, the Court held that the suit was maintainable. In Halsbury's Laws of England, 4th Ldn., Vol. 5, para 452, it is stated thus: "Where goods have been delivered to a carrier, and they are lost or injured, the owner of the goods is the proper person to sue for damages. A consignor who consigns only as agent, and has no property in the goods, has no right of action unless it is given to him by the terms of the contract. Nevertheless where the goods are at the consignor's risk until delivery to the consignee, the consignor may have a special properly in the goods, as bailee, sufficient to entitle him to sue." The other decisions cited were K. Vcnkal Rao v. Commercial Goods Transport Firm Vizianagaram AIR 1982 AP 203; Sukul Bros. v. U.K. Kavarana AIR 1958 Cal. 730, and D.P. Narasa Reddy v. Ellisetti China Venkata Subbayya . Learned Single
Judge merely relied on the decision in St. Joseph Union Tile Works v. Rappai (supra). On the facts of that decision, it was held that there was proof to show that the property has not passed to the consignee. So far this case is concerned, a definite contention was taken by the defendant that the consignee has become the owner of the property. The plaintiffs have failed to prove or give any evidence regarding any contract between the plaintiff No. 2 and the defendant, which enable the plaintiff No. 2 to sue in case any damage occurs. They have not even denied that the property has not passed to the consignee.
12. In the above view of the matter, we are of the view that the plaintiff No. 2 was not competent to institute the suit. Then the question is whether the suit filed by the plaintiff No. 1 is maintainable. In the suit, it is stated that the insurance policy, which was produced as Exh. A-6 in this case, was taken by the plaintiff No. 2 and issued by the plaintiff No. 1 and a claim was put forward by the plaintiff No. 2 and the claim was paid. It is further stated that an amount of Rs. 5,000/-and odd was paid to the consignee on the basis of the claim filed by them. In the written statement, the defendant has taken a contention that the insurance policy was taken after the goods were delivered. The plaintiffs have not given the date of delivery of the goods. On the reverse side of Exh. A-6 insurance policy, the following endorsements appear: "Endorsed in favour of National Aeronautical Laboratory". It was signed by the Accounts Officer, Hindustan Machine Tools Ltd. No date is put there. If the policy has been endorsed in favour of the National Aeronautical Laboratory, we do not know how the plaintiff No. 2 can authorise the plaintiff No. 1 to realise the damages. Further, the respondent No. 1 cannot institute a suit, because of the view taken by us that it is the consignee, who has become owner of the property and there is no authorisation from the consignee to the Insurance Company to institute the suit. The appellant then contended that in view of the decision in A.T. Corpn. v. National Insurance Co. Ltd. 1989 (1) KLT 386, it was not proper on the part of the learned Single Judge to remand the case for enabling the plaintiffs to examine the Surveyor. No reason had been given by the plaintiffs for the non-examination of the Surveyor earlier. The learned Single Judge has not given any reason for remanding the case for examination of the Surveyor. The incident was said to have occurred in 1977 and the Surveyor filed the report in 1978.1n the same decision relied on by the learned Single Judge, viz., A.T. Corpn. v. National Insurance Co. Ltd. (supra), a prayer was made for remand. The prayer for remand was refused. Order 41 Rule 23 of the Code of Civil Procedure deals with remand. It has been held by the decisions that a remand is to enable a party to have another opportunity for producing evidence. Here, no reasons have been given by the plaintiffs for not examining the Surveyor earlier.
13. After giving an anxious consideration of the entire matter, we are of the view that the appeal has to be allowed and the suit has to be dismissed. In view of the above, appeal is allowed and the suit is dismissed. No order as to costs.
