Bangalore District Court
M/S. Bosch Limited vs Khushdil Roadways Chd (Regd.) on 1 July, 2016
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 1st day of July, 2016.
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.B.(Spl.),
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.4429/2011
PLAINTIFF : 1. M/s. Bosch Limited,
Hosur road, Adugodi, Bengaluru
- 560 030, represented by Power
Agent/Subrogee M/s. United
India Insurance Company
Limited, No.24, Classic Building,
Richmond road, Bengaluru,
represented by their Divisional
Manager.
2. M/s. United India Insurance
Company Limited, No.24, Classic
Building, Richmond road,
Bengaluru, represented by their
Divisional Manager, represented
by their Divisional Manager.
(By Sri P.S. Ranganathan, Advocate)
-VERSUS-
DEFENDANT: Khushdil Roadways CHD (Regd.),
(Registered), 36, New Timber
Market, Sector 26, Chandigarh
represented by Manager.
(By Sri H.K.S., Advocate)
Cont'd..
-2- O.S. No.4429/2011
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Date of Institution of the Suit : 26-11-2011
Nature of the Suit (Suit on : Recovery of damages
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 14-07-2014
of recording of the evidence
Date on which the Judgment : 01-07-2016
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 4 years, 7 months, 4 days
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(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This is a suit filed by the plaintiffs against defendant for recovery in a sum of Rs.2,21,247-00 with interest at the rate of 12 per cent per annum from the date of suit till its realization by way of damages.
2. The brief facts of the plaint are as under:-
Plaintiffs have contended that they are the Public Limited Companies and the defendant is a Private Limited Company - incorporated under the Companies Act and a Common Carrier for reward having their Head Cont'd..
-3- O.S. No.4429/2011 Office at Chandigarh. It is submitted that first plaintiff during the course of their business has despatched the consignment of Auto parts from Panchkula to their at Gurgoan, Haryana vide their invoice dated 31-07-2008 valued at Rs.2,21,247-00. The said consignment was securely packed and entrusted with the defendant for safe carriage and delivery to the first plaintiff at Gurgoan, Haryana. It is submitted the defendant by issuing consignment note dated 31-07-2008 has undertaken to carry the said goods and deliver in the same good order and condition at destination as was entrusted with them. The first plaintiff being owner of the said consignment insured the same with second plaintiff under a policy of insurance. It is submitted defendant failed to deliver the said consignment - thereby committed breach of statutory obligation. Upon such non-delivery, plaintiff being owner issued a statutory notice of loss informing the defendant about the loss. After receipt of the notice, defendant issued their certificate admitting the fact of non-delivery of the said consignment. On account of non-delivery of the consignment, first plaintiff suffered loss of Rs.2,21,247-
00. Thereafter, first plaintiff lodged their claim on the second plaintiff under the policy of insurance. Second plaintiff indemnified the first plaintiff's claim and upon such indemnification, first plaintiff executed letter of subrogation and Special Power of Attorney in favour of the second plaintiff. With this submission, the plaintiffs prayed to decree the suit.
Cont'd..
-4- O.S. No.4429/2011
3. On the other hand, upon service of notice, defendant appeared through its Counsel and filed written statement. The brief facts of the written statement of the defendant are as follows:-
Defendant has contended this Court has no territorial jurisdiction to try and decide the present suit between the parties in view of the terms and conditions laid down in the consignment note which clearly speaks of the disputes between the parties are subject to jurisdiction of Chandigarh Courts only. These conditions were impliedly accepted by the plaintiff No.1 and all the conditions mentioned in the consignment note have binding effect between the parties. Alleged agreement of insurance though not admitted between the co-plaintiff was bi-lateral and not tripartite, but as defendant has not joined into the same hence the suit is liable to be dismissed. Co-plaintiffs have wrongly invoked the jurisdiction of this Court by concealing the material facts and law to that extent. It is submitted in view of the law laid down by the Hon'ble Orissa High Court reported in 1978, the parties can file suit either at the place of booking or at the place of delivery whereas in the present case in hand the consignment in question was booked in Panchkula for its onward delivery at Gurgaon, but the truck in which the consignment in question was booked was hijacked from Barwala by the enemies of the States. Totally a 13 numbers of consignments belonging to the plaintiff also loaded in Cont'd..
-5- O.S. No.4429/2011 the truck. It is submitted in this regard, criminal case has been registered against the culprits. It is submitted suit is bad for non-compliance of Sections 3 and 10 of the Carriers of Goods Act.
It is submitted consignment in question was booked entirely on owner's risk as it is mentioned clearly in the consignment note. Co-plaintiffs have filed present suit alleging that Court of Bengaluru has jurisdiction to try and decide the case as letter of subrogation was executed at Bengaluru. Lastly, it is submitted suit filed by the plaintiff for non-joinder and misjoinder of necessary party. With this submission, defendant prayed to dismiss the suit.
4. On the basis of the above said pleadings, this Court has framed the following -
ISSUES (1) Whether the plaintiffs prove that the delivered consignment was in damaged condition resulting in shortage as alleged and the negligence of defendant?
(2) Whether the plaintiffs prove that they are entitled for Rs.2,21,247-00 with interest Cont'd..
-6- O.S. No.4429/2011 rate of Rs.12 per cent per annum as prayed?
(3) What order or decree?
5. In order to substantiate the plaint averments, Assistant Manager of the second plaintiff company herself examined as P.W.1 and got documents marked as per Exs.P.1 to P.8 and closed her side.
6. In spite of granting sufficient opportunity, defendant has not come forward either to cross-examine P.W.1 or to lead evidence on its behalf. Hence, cross- examination of P.W.1 on behalf of the defendant and evidence on behalf of the defendant taken as nil.
7. I have heard arguments on behalf of the plaintiff. Advocate for the defendant has not come forward to argue on the merits of the case.
8. My findings on the above Issues are as follows:-
ISSUE No.1 - Affirmative;
ISSUE No.2 - Affirmative;
ISSUE No.3 - As per final order, for the following -
Cont'd..
-7- O.S. No.4429/2011
REASONS
9. ISSUES 1 AND 2 : Since both these Issues are inter-related with each other, they are being taken up together for discussion at a stretch in order to avoid repetition of facts.
10. In order to prove the above Issues, Assistant Manager of the second plaintiff company herself examined as P.W.1. In her evidence, she has deposed first plaintiff during the course of business despatched their consignment of Auto parts from Panchkula to their consignee at Gurgoan, Haryana under the invoice dated 31-07-2008. P.W.1 further deposed that the said consignment was securely packed and was entrusted with the defendant common carrier and after receipt of the consignment, defendant common carrier issued their consignment note and undertaking to deliver the same in the same good order and condition as was entrusted. P.W.1 further deposed defendant did not deliver the said consignment and committed breach.
Thereafter, first plaintiff being owner issued statutory notice of loss informing the loss and after receipt of the notice, defendant issued certificate admitting loss sustained by the plaintiff. P.W.1 further deposed on account of short delivery of the consignment by the defendant, first plaintiff suffered loss of Rs.2,21,247-00 and thereafter, first plaintiff lodged their claim on second plaintiff under policy of insurance and second plaintiff indemnified the claim of the first plaintiff.
Cont'd..
-8- O.S. No.4429/2011 P.W.1 further deposed that upon such indemnification, plaintiff No.1 issued letter of subrogation and power of attorney in favour of the second plaintiff and on the basis of those documents, second plaintiff is entitled to recover the suit claim from the defendant.
11. In support of the above said contention, P.W.1 has produced invoices together marked as per Ex.P.1, consignment note marked as per Ex.P.2, notice of loss marked as per Ex.P.3, certificate of fact marked as per Ex.P.4, claim bill marked as per Ex.P.5, settlement intimation voucher marked as per Ex.P.6, letter of subrogation marked as per Ex.P.7, copy of notice issued through recovery agent marked as per Ex.P.8. In my considered view, evidence of P.W.1 and the contents of Exs.P.1 to P.8 have remained unchallenged. As I have discussed above, even after granting sufficient opportunity, defendant has not come forward either to cross-examine P.W.1 or to deny the contents of Exs.P.1 to P.8.
12. At this juncture I would like to rely upon the ruling of Hon'ble High Court reported in ILR 1998 KAR 2655 (Shirajasab Husensab Exambi -versus- Ashok Panditappa Kaddimani) - wherein, it is held thus -
"Order VI Rule 1(a), Order VII Rule 11, Order VIII Rule 10 and Order XVII Rule 3 - Is it permissible for the Court to go in to the merits and other factual allegations when Cont'd..
-9- O.S. No.4429/2011 the Defendant does not appear in spite of the service of the suit summons? HELD - Court shall have to pass a decree as prayed for, unless the relief itself is, prima facie barred by limitation."
13. In my considered view, the principles laid down in the aforesaid decision is exactly applicable to the case on hand. In view of the above said settled position of law and on the basis of the evidence of P.W.1 and on the basis of the records produced on behalf of the plaintiff, this Court is of the opinion that the plaintiff No.2 is entitled for the relief sought for.
14. In the present case, though defendant has filed written statement questioning the jurisdiction of this Court, but defendant has not come forward to establish the same. Further, it is pertinent to note here that in the written statement, defendant has contended as per the terms and conditions laid down in the consignment notice, it speaks of disputes between the parties are subject to jurisdiction of Chandigarh Courts only. I have perused the consignment note which is marked as per Ex.P.2. Nowhere in Ex.P.2, it has mentioned disputes between the parties are subject to Chandigarh Courts only. In the written statement, defendant has contended plaintiffs have wrongly invoked the jurisdiction of this Court by concealing the material fact. But this aspect has not at all been established by the defendant either by cross-examining Cont'd..
- 10 - O.S. No.4429/2011 P.W.1 or by producing relevant records. Though
defendant has taken contention suit filed by the plaintiff is bad for non-joinder and mis-joinder of necessary parties, even it has not been established by the defendant. Defendant has quoted some citations in the written statement, but with due respect to the decisions referred to above, they are not helpful to the case of the defendant. As per the contents of the written statement and on the basis of Ex.P.7, it reveals letter of subrogation and special power of attorney executed by plaintiff No.1 in favour of plaintiff No.2 at Bengaluru. Therefore, all the contentions taken by the defendant with regard to jurisdiction has no substance at all. Accordingly, my answer to above Issues are in the affirmative.
15. ISSUE No.3 : In the present case, the plaintiffs have sought for recovery of a sum of Rs.2,21,247-00 with interest at the rate of 12 per cent per annum from the date of the suit till realization as the transaction being commercial transaction. Admittedly, the transaction took place between the plaintiffs and the defendant is a commercial transaction. On the other hand, the defendant has not at all established to hold that the plaintiffs are not entitled for the interest at the rate of 12 per cent per annum. In view of the above said discussion on Point No.1, I proceed to pass the following -
Cont'd..
- 11 - O.S. No.4429/2011
ORDER
Suit filed by the plaintiffs against the defendant, is hereby decreed with cost.
Plaintiff No.2 is entitled to recover from the defendant a sum of Rs.2,21,247-00 being the value of the consignment with interest thereon at the rate of 12 per cent per annum from the date of suit till its realization towards damages.
Defendant is liable to pay to the plaintiff No.2 a sum of Rs.2,21,247-00 being the value of the consignment with interest thereon at the rate of 12 per cent per annum from the date of suit till its realization towards damages within two months from today.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 1st day of July, 2016.) (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
- 12 - O.S. No.4429/2011
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : Smt. Nanjamma 14-07-2014
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : 27 invoices.
Ex.P.2 : Consignment note.
Ex.P.3 : Notice of claim for compensation. Ex.P.4 : Certificate of fact.
Ex.P.5 : Claim bill.
Ex.P.6 : Settlement intimation vouchers. Ex.P.7 : Letter of subrogation.
Ex.P.8 : Office copies of claim bills with postal receipt.
3. WITNESS/ES EXAMINED FOR THE DEFENDANT:
Nil
4.DOCUMENT/S MARKED ON BEHALF OF DEFENDANT:
Nil (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..