Bangalore District Court
M/S.Sree Lakshmi Silks vs M/S.Anl Parcel Services on 18 February, 2016
IN THE COURT OF THE XXX ADDL.CITY CIVIL
JUDGE, BANGALORE CITY
DATED THIS THE 18TH DAY OF FEBRUARY 2016
-: PRESENT: -
SRI.M.G.KUDAVAKKALIGER, B,Com., LL.M.,
XXX Addl.City Civil Judge,
Bangalore.
O.S.NO.2041/2013
PLAINTIFF/S. M/s.Sree Lakshmi Silks,
No.25-1-1, Lakshmi Mansion,
Basavanna Lane, J.M.Road Cross,
Bengaluru-560 002. Rep.by its
Partner M.suryanarayanaswamy.
(By Pleader Sri.M.Ramaswamy,
Adv.)
/VS/
DEFENDANT/S. M/s.ANL Parcel Services,
By its Manager, No.5-9-30/1/5/B,
Road No.4, Basheerabagh, Palace
Colony, Hyderabad-500 063,
A.P.State.
(By Pleader Sri.N.Naresh, Adv.)
*****
2 O.S.No.2041/2013
DATE OF INSTITUTION 14-03-2013
NATURE OF THE SUIT (Suit on Suit for money
Pronote, Suit for declaration and recovery
Possession, Suit for injunction, etc.)
DATE OF THE COMMENCEMENT 22-7-2014
OF RECORDING OF THE EVIDENCE
DATE ON WHICH THE JUDGEMENT 18-02-2016
WAS PRONOUNCED
TOTAL DURATION : YEAR/S MONTH/S DAY/S
2 11 4
(M.G.KUDAVAKKALIGER),
XXX ADDL.CITY CIVIL JUDGE,
BENGALURU.
3 O.S.No.2041/2013
JUDGEMENT
1. The plaintiff firm has filed this suit against the defendant for recovery of Rs.1,26,665/- with interest at the rate of 18% p.a. from the date of suit till realization with costs.
2. The following are the brief facts leading to the case of the plaintiff:
That the plaintiff is a registered partnership firm dealing in manufacturing and sales of silk sarees and allied clothing and fabrics. The defendant being an enterprise carrying on lifting of goods and delivering to the destinations on certain terms. The defendant is regularly lifting consignments of the plaintiff for onward delivery to his customers all over India. On one occasion i.e. 31-10-2011, the defendant lifted one consignment under invoice No.30150 dtd.31-10-2011, for delivering the same to its customers Sri.V.Ramaraogaru, 4 O.S.No.2041/2013 Sri.Datta Sai Sarees, V.T.Road, House No.1-6-82/1, Suryapet, A.P. The consignment is valued at Rs.1,03,400/- containing pure silk sarees. The plaintiff further contended that the consignment lifted by the defendant has not been delivered to the consignee at their destination and the said consignment is reported to have been lost in the office of the defendant on account of theft committed by miscreants in the premises of the defendant, when the consignment was in their custody. The defendant has informed the plaintiff about the theft of the consignment in their office and in this regard, they have lodged a police complaint for tracing the same and undertook to deliver the consignment to the consignee as and when the same is traced and recovered. But, even after lapse of more than one year, no efforts were made by the defendant for tracing the lost consignment and therefore, there are no chances of delivering the same to the consignee 5 O.S.No.2041/2013 in future also. As the value of the lost consignment is Rs.1,03,400/-, the plaintiff is entitled for the reimbursement of the same and the defendant is liable to pay the same to the plaintiff. Therefore, the plaintiff has called upon the defendant to pay the said sum over phone. But, the defendant has not paid the same. Thereafter, plaintiff got issued a legal noticedtd.12-10-2012 coupled with the final reminder dtd.11-2-2013 calling upon the defendant to pay the sum of Rs.1,03,400/- with interest at 18% p.a. for the delayed payment on the amount claimed, beyond the period of one month from the date of invoice. Therefore, the plaintiff is entitled to Rs.23,265/- towards interest due from 1-12-2011 to 28-2-2013 and totally the defendant is due and liable to pay Rs.1,26,665/- with future interest at 18% p.a. to the plaintiff. Hence, the plaintiff has prayed to decree the suit with costs.6 O.S.No.2041/2013
3. After registration of the suit, suit summons was issued to the defendant. Pursuant to the suit summons, defendant has put appearance through their advocate and filed the written statement contending inter-alia that the suit has been filed against a dead person and therefore, without any further enquiry, the suit has to be dismissed in limine. Further, the suit is barred by time, since the same has been filed after expiry of limitation. Defendant has denied the averments made at para-3 and calls the plaintiff for strict proof of the same. The plaintiff has not furnished all the documents at the time of booking the consignment. It was accepted since the plaintiff promised to furnish at a future date. The defendant denies the value of the consignment. The defendant has denied the averments made at para-4 of the plaint and calls the plaintiff for strict proof of the same. The defendant has contended that it is very clear from the terms of the consignment, 7 O.S.No.2041/2013 the jurisdiction in the event of any dispute shall only subjected to Hyderabad jurisdiction and plaintiff s bound by the terms and conditions of the consignment. Hence, the defendant is not liable to pay any amount much less as claimed by the plaintiff. The defendant has also denied the averments made at paras-5 and 6 of the plaint and calls the plaintiff to strict proof of the same. The defendant is not liable to pay neither the sum nor interest and there is no cause of action to file the suit. Hence, prays to dismiss the suit with exemplary costs.
4. On the basis of the rival contentions taken by the respective parties in the above pleadings of both the parties, the following issues have been framed for disposal of the case:
1. Whether plaintiff prove that defendant is liable to pay Rs.1,03,400/- towards the lost of consignment?8 O.S.No.2041/2013
2. Whether the suit is barred by time?
3. What order or decree?
5. In order to substantiate the case made out by the plaintiff, the partner of the plaintiff firm Sri.M.Suryanarayana Swamy has entered into witness box and filed his affidavit evidence under Order XVIII rule 4 of CPC in lieu of his oral evidence as per P.W.1 and got marked as many as 8 documents as per Ex.P.1 to P.8. In order to rebut the case of the plaintiff, defendant has cross examined the pw1, and the Manager of the defendant firm Sri.Gangalakurty Radhakrishna has entered into the witness box and filed his affidavit evidence as per D.W.1. But, no documents were marked on behalf of the defendant and the Case posted for arguments.
6. I have heard the arguments on both sides and perused the materials placed on record.
9 O.S.No.2041/2013
7. On the basis of the evidence both oral and documentary and other materials., I record my findings to the above issues as follows:
Issue No.1: In the affirmative.
Issue No.2: In the negative.
Issue No.3: As per the final order for the following:
REASONS
8. ISSUE NO.1 & 2: These issue are interlinked, discussion on one point has its direct bearing on the discussion on another point. In view to avoid repetition of discussion and facts of evidence, I am going to consider all these points jointly.
9. It is the brief case of the plaintiff that, it is a registered partnership firm dealing in manufacturing and sales of silk sarees and allied clothing and fabrics. The defendant being an enterprise carrying on lifting of goods and delivering to the destinations on certain 10 O.S.No.2041/2013 terms. The defendant is regularly lifting consignments of the plaintiff for onward delivery to its customers all over India. On one occasion i.e. 31-10-2011, the defendant lifted one consignment under invoice No.30150 dtd.31-10-2011, for delivering the same to its customers Sri.V.Ramaraogaru, Sri.Datta Sai Sarees, V.T.Road, House No.1-6-82/1, Suryapet, A.P. The consignment is valued at Rs.1,03,400/- containing pure silk sarees. But, the said consignment lifted by the defendant has not been delivered to the consignee at their destination and defendant has reported that the said consignment is lost in the office of the defendant on account of theft committed by miscreants in the premises of the defendant, and in this regard, they have lodged a police complaint for tracing the same and undertook to deliver the consignment to the consignee as and when the same is traced and recovered. But, even after lapse of more than one year, no efforts were made 11 O.S.No.2041/2013 by the defendant for tracing the lost consignment and there are no chances of delivering the same to the consignee in future also. As the value of the lost consignment is Rs.1,03,400/-, the plaintiff is entitled for the reimbursement of the same and the defendant is liable to pay the same to the plaintiff. Therefore, the plaintiff has called upon the defendant to pay the said sum over phone. But, the defendant has not paid the same. Therefore, plaintiff got issued a legal notice dtd.12-10-2012 coupled with the final reminder dtd.11- 2-2013 calling upon the defendant to pay the sum of Rs.1,03,400/- with interest at 18% p.a. for the delayed payment on the amount claimed, beyond the period of one month from the date of invoice. Therefore, the plaintiff is entitled to Rs.23,265/- towards interest due from 1-12-2011 to 28-2-2013 and totally the defendant is due and liable to pay Rs.1,26,665/- with future interest at 18% p.a. to the plaintiff. Pursuant to the 12 O.S.No.2041/2013 suit summons, the defendant has put appearance through their advocate and filed the written statement contending inter-alia that the suit has been filed against a dead person and therefore, without any further enquiry, the suit has to be dismissed in limine. Further, the defendant has contended that the suit is barred by time, since the same has been filed after expiry of limitation. Defendant has denied the averments made at para-3 of the plaint. The plaintiff has not furnished all the documents at the time of booking consignment. Plaintiff has promised to furnish the documents at a future date. The defendant denies the value of the consignment. The defendant has also denied the averments made at para-4 of the plaint. The defendant has contended that it is very clear from the terms of the consignment, the jurisdiction in the event of any dispute shall only subjected to Hyderabad jurisdiction and plaintiff is bound by the terms and conditions of the 13 O.S.No.2041/2013 consignment. Hence, the defendant is not liable to pay any amount much less as claimed by the plaintiff and prays to dismiss the suit with exemplary costs.
10. In order to substantiate the case made out by the plaintiff, the plaintiff has entered into the witness box deposed the plaint averments and got marked as many as 8 documents as per Ex.P.1 to P.8. P.W.1 in his examination-in-chief deposed that plaintiff is the registered Partnership firm used to manufacture and sale of silk sarees and allied cloth and fabrics, defendant is the enterprise carrying the business of lifting the goods, consignments and delivering to the various institutions and persons. Defendant is regularly lifting the consignment of the plaintiff and delivering to his customers all over India. On 31-10-2011, defendant has lifted one consignment under Invoice No.30150 worth Rs.1,03,400/- for delivering the same to its customer Sri.V.Ramraogaru, Sri Datta Sai Sarees, 14 O.S.No.2041/2013 V.P.Road, Suryapet, A.P. But, subsequently, the defendant has not delivered to the consignee at the destination. The said consignment is reported to have been lost in the office of the defendant on account of the theft committed by some miscreants, when the consignment was in their custody in the premises of the defendant. Defendant has not traced out the lost consignment and there is no chance of delivering the same to the consignee. Hence, the plaintiff is entitled for reimbursement of consignment amount of Rs.1,03,400/-. Defendant is liable to pay the same. The plaintiff has issued legal notice on 12-10-2012 and reminder on 11-2-2013 calling upon the defendant to pay the cost of the last consignment with interest at the rate of 18% p.a. Hence, he has filed this suit.
11. At this juncture, it is to be noted that defendant has denied the averments made in the plaint at para No.3 to 6 and called the plaintiff for the strict proof of the 15 O.S.No.2041/2013 same and defendant denied the value of the consignment and contended that this Court has no jurisdiction in the event of any dispute shall only subjected to Hyderabad jurisdiction. Plaintiff is bound by the terms and conditions of the consignment note. In this way, the defence of the defendant is total denial. But during the course of cross-examination, the learned Counsel for the defendant concentrated on the contents of the Ex.P.7. Ex.P.7 is the (receipt) consignment note issued by the defendant company on 2-11-2011 vide No.48284062 and value of the consignment is Rs.1,03,400/-. The parcel is from Bengaluru to Suryapet. The name of the plaintiff and the consignee also mentioned in Ex.P.7. On careful perusal of the contents of the Ex.P.7, it discloses that defendant company has lifted the materials of the consignment. The learned Counsel for the defendant has cross- examined the P.W.1 basing on the contents of Ex.P.7 16 O.S.No.2041/2013 itself. During the course of cross-examination, D.W.1 initially tried to deny all the suggestions made with regard to the consignment, but admitted the lifting of goods under consingment. For better appreciation, I cull out the same:
"¸ÀgPÀ ÀÄ ¸ÁUÀuAÉ iÀÄ°è PÀ¼ÀÉ¢gÀĪÀÅzÀÄ. ¸ÀgPÀ ÀÄ PÀ¼z É ÁUÀ CzÀÄ £ÀªÀÄä ¸Áé¢Ãü £ÀzÀ°vè ÀÄÛ CAzÀgÀÉ ¸Àj. .............. ¸ÀgPÀ ÀÄ vÀ®Ä¥ÀŪÀ ªÉÆzÀ¯ÃÉ PÀ¼z É ÀÄ ºÉÆÃzÀ°è £ÁªÀÅ dªÁ¨ÁÝggÀ ÁUÀÄvÉê Û AÉ zÀgÉ ¤d."
12. On careful perusal of the above culled out evidence and the admission given by defendant No.1, it clearly discloses that the plaintiff has delivered the consigned materials to the defendant and defendant has lifted the materials of the consignment to deliver the consignee. The learned Counsel for the defendant puts suggestions to P.W.1 that defendant is liable to reimburse Rs.5/- per kg. in case of loss or damage of the materials as shown. Therefore, the plaintiff is succeeded in proving delivery of the consigned material to the representative of the defendant at Bengaluru, who issued receipt as per Ex.P.7. Now, it is to be noted that during the course of 17 O.S.No.2041/2013 the cross-examination D.W.1 has admitted the consignment and also taking of defence of Rs.5/- per k.g. irrespective of the total value claimed by the plaintiff. Defendant has also admitted that except the consignment note, they have not produced any agreement before this Court. Hence, this Court is of the opinion that plaintiff has successfully proved that defendant has lifted the goods consigned in favour of customer Sri.V.Ramaraogaru worth Rs.1,03,400/- vide invoice No.30150 dtd.30-10-2011 booked by the plaintiff with defendant for transporting the same to Suryapet, A.P. on 2-11-2011. Now, the burden shifts on the defendants to prove that goods have been delivered to the consignee as per the consignment note. But, in the instant case the defendant has not delivered the consigned goods to the customer of the plaintiff. Therefore, the transporter is liable for loss of goods or damage to the goods or non-delivery of goods or about 18 O.S.No.2041/2013 short delivery. In the instant case, no material evidence has been produced to prove that defendant has not booked the consignment and not lifted the material, but the consignment entrusted by the plaintiff to the defendant was not delivered either to the plaintiff's client at Suryapet or it was redelivered to the plaintiff. There is no material evidence to prove that the defendant was not negligent in handling the consignment, but they have not delivered the consignment to the consignee i.e. customer of the plaintiff. Hence, the burden is on the carriers to prove the absence of negligence.
13. Their Lordship of the Hon'ble High Court have held in the case of M/S.KARNATAKA TRANSPORT CORPORATION VS.NATIONAL INSURANCE BANK LTD.1 that, "In a suit for loss, damage or non-delivery of goods, filed against the carrier, the plaintiff is not 1 AIR 1999 KARNATAKA 233 19 O.S.No.2041/2013 required to prove negligence ordinarily. He has only to prove that goods were delivered to the carrier or entrusted to the carrier for being taken to the destination and being delivered to the consignee. He has to prove that goods were either not delivered or that they were delivered in damaged condition. Once these two facts have been established, the presumption of negligence will arise in favour of the plaintiff that there was negligence on the part of the carrier, unless the defendant carrier produces evidence to rebut it."
14. On careful perusal of the principles evolved by their Lordships of the Hon'ble High Court, that the plaintiff need not prove the negligence on the part of the defendant. Once the plaintiff has proved that goods have been delivered to the carrier or entrusted to the carrier for being taken to the destination and being delivered to the consignee and plaintiff has to prove goods were either not delivered or they were delivered in damaged condition. In the instant case, the plaintiff has proved that goods were entrusted to the defendant for transportation, but the defendant has not delivered the goods to its customer i.e. V.Ramaraogaru. Hence, the presumption of negligence will arise in favour of 20 O.S.No.2041/2013 plaintiff that there was negligence on the part of the carrier unless the defendant carrier produce evidence to rebut it.
15. Therefore, I hold that plaintiff has established that on account of negligent act on the part of defendant, plaintiff has suffered damages to the extent of Rs.1,03,400/-. This brings us to the alternative submission. The counsel for defendant has contended that as per Ex.P.7, a public notice was printed on the backside of the Ex.P.7, plaintiff has admitted the liability of defendant to the extent of Rs.5/- per k.g. As per the Ex.P.7 total weight of the consignment is 20 kg. according to the defendant. Hence, the weight of the lost consignment was only 20 kgs. and consequently, the liability for the loss would be Rs.100/-. But, this calculation is unreasonable. The counsel for defendant is of the opinion that the public notice is a contract between plaintiff and defendant. On the other hand, it 21 O.S.No.2041/2013 is the submission of the counsel for plaintiff that public notice is printed on the overleaf in a mild ink which is unvisible to anybody, except there is an agreement between the plaintiff and defendant in writing, it is not binding on the plaintiff and the unilateral action of the defendant cannot restricts its liability. I need not go in detail with regard to submissions made by the counsel for the defendant in their respective arguments. As it is already covered in ruling reported in M/s. MSIL Vs.United India Insurance Company Ltd. & others2. In the said case, it was submitted that the liability of MSIL is limited to 20 U.S.Dollars under public notice dtd.10-10-84. The Lordship did not accept the submission and made observation. The observation made by their Lordships is worth quoting:
No doubt, as per the public notice, which was issued pursuant to an arrangement between the Customs Department and the Custodian, the liability of the custodian is limited to 20 US $ per Kg., or the actual value of the imported goods, whichever is less. Even if the said public notice 2 ILR 2009 kar.2974 22 O.S.No.2041/2013 has been Gezetted, it does not absolve the 1st defendant from its liability to answer the claim of the plaintiffs with regard to the loss of goods. The terms of the said public notice would only bind the MSIL and the Customs Authorities."
16. In view of principles evolved by their Lordships in the categorical pronouncement, this Court is not accepting the submission made by the counsel for defendant. The plaintiff is entitled to receive the entire loss of Rs.1,03,400/- caused due to non-delivery of the consigned goods to its customer Sri.V.Ramaraogaru consignee to the consignment.
17. In the instant case, the defendant has taken contention and deposed that as per the terms of the consignment, the jurisdiction in the event of any dispute shall only subject to Hyderabad jurisdiction.
18. The provisions of Sec.19 reads as under:
"19. Suits for compensation for wrongs to person or movables.-Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits f the u; of one Court and the 23 O.S.No.2041/2013 defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts."
19. As per Sec.19 of the C.P.C. where a suit is for compensation for wrong done to the person or to the movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides or carries on business or personally work for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. In the instant case there is a loss of consigned goods by the defendant. Defendant is having branch office at Bengaluru and doing its carrier business. Hence, the agent of the defendant company works for gain at Bengaluru and books consignment for transportation. Therefore, the Bengaluru Court is also having jurisdiction. Hence, the contention taken up by the defendant is not sustainable in the eye of law. 24 O.S.No.2041/2013
20.Defendant has taken contention that as per Sec.10 of the Carriers Act, 1865 no suit shall be instituted against the common carrier for loss or injury to the goods entrusted to him for carriage unless notice in writing was given within 6 months of the time when loss or injury first came to the knowledge of the plaintiff. But, as on the date of the incident, the Carriage Act, 1865 was repealed and new Act the Carriage by Road Act, 2007 was introduced. Under the new enactment no such period of limitation for giving notice was described. However, the plaintiff has issued legal notice to the defendant after giving sufficient time to the defendant to search the lost consignment, only when, the defendant has failed to search the lost consignment the plaintiff has issued legal notice calling upon to reimburse the value of the lost consignment. Therefore, the defence taken up by the defendant during the course of the evidence and argument is not sustainable. At this 25 O.S.No.2041/2013 juncture, it is to be noted that defendant has not pleaded this contention in his written statement. Hence, any amount of evidence without the pleadings is of no consequences. Hence, it is of no use to the defendant in observing its liability to pay. Hence, this Court is of the opinion that plaintiff has successfully proved that defendant has lifted the goods consigned in favour of customer Sri.V.Ramaraogaru worth Rs.1,03,400/- vide invoice No.30150 dtd.30-10-2011 booked by the plaintiff with defendant for transporting the same to Suryapet, A.P. on 2-11-2011. Accordingly, I answer issue No.1 in the affirmative and issue No.2 in the negative.
21. POINT NO.3: In view of the discussions and reasons stated above and my answers to the above points, I proceed to pass the following:
26 O.S.No.2041/2013
ORDER The suit of the plaintiff is hereby partly decreed with costs.
Plaintiff is entitled to recover Rs.1,03,400/- (Rupees Seven Lakhs Eighty Three Thousand Five Hundred only) with future interest at the rate of 12% p.a. from the date of legal notice till realization.
The defendant company is hereby directed to pay the decreetal amount within two months from the date of this judgment & decree.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 18TH DAY OF FEBRUARY 2016).
(M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL JUDGE, BENGALURU.27 O.S.No.2041/2013
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W. 1 M.Suryanarayana Swamy.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 G.Radhakrishna DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 : Invoice. Ex.P.2&3 : Copies of legal notice. Ex.P.4 & 5 : Acknowledgements. Ex.P.6 : Reply. Ex.P.7 : Receipt. Ex.P.8 : Courier Receipt.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
NIL.
(M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL JUDGE, BENGALURU.