TMI Blog2007 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 1,75,000 with the petitioner under a letter dated 22-11-2004, on account of loss suffered by the consignor. The respondent had issued a certificate of damage/shortage/non-delivery. Hitachi made a claim in the amount of Rs. 1,70,342 with the petitioner under the insurance cover provided by the petitioner. The claim was paid by the petitioner, on 25-1-2005. By a declaration executed on 12-1-2005, by Hitachi in favour of the petitioner, the petitioner was subrogated to the rights and remedies of the insured under the policy of insurance. On 26-7-2005, the petitioner issued a statutory notice under sections 433 and 434 of the Companies Act, 1956, calling upon the respondent to make payment of the outstanding dues in the amount of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra ), this court should hold that a company petition for winding up under sections 433 and 434 of the Companies Act, 1956, would be maintainable. 4. Section 8 of the Carriers Act, 1865, provides as follows : "8. Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent . Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property (including container, pallet or similar article of transport used to consolidate goods) delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Following the judgment in Patel Roadways Ltd. s case ( supra ) in Economic Transport Organization v. Dharwad District Khadi Gramudyog Sangh AIR 2000 SC 1635, the Supreme Court held that it is for the carrier to prove the absence of negligence. In such a case it is for the defendant to establish that he had taken reasonable care and exercised due diligence in the transportation of the goods. 7. The liability under section 8 of the Carriers Act, 1865, is conditioned upon the negligence or a criminal act of the carrier, his agent or servant. The plaintiff in the suit does not have to prove that the loss, damage or non-delivery of goods entrusted was not due to negligence or a criminal act of the carrier. The burden lies on the carrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the quantification of damages are issues on which evidence has to be adduced at the trial of a civil suit and a finding of fact has to be recorded. As the Supreme Court held in Patel Roadways Ltd. s case ( supra ), the question can be addressed before the consumer fora constituted under the Consumer Protection Act, 1986, as well. Those fora do have the power and jurisdiction to resolve matters of fact and render factual determinations. However, unless a debt is due and payable, the remedy of winding up is not available. 9. On behalf of the petitioner, reliance has been placed on the judgment of a Division Bench of the Karnataka High Court in Kudremukh Iron Ore Co. Ltd. v. Kooky Roadways (P.) Ltd. [1990] 69 Comp. Cas. 178 . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent-company, its servants or agents." 10. That apart, the Division Bench also noted that the matter was uncontested before the learned Single Judge who had heard the company petition ex parte . There was no response even to the statutory notice for winding up that was issued under the provisions of sections 434 and 438 of the Companies Act, 1956. The observations of the Karnataka High Court, therefore, must be read in the context of the fact that there was no denial of the liability of the common carrier in that case. In contrast, the reply that has been filed on behalf of the carrier in the present case does set up a triable issue. The petition for winding up would in the circumstances be clearly not maintainable. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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