Bangalore District Court
Is A Manufacturer And Dealer In ... vs For Rs.5 on 31 March, 2022
IN THE COURT OF LXXXV ADDL. CITY CIVIL &
SESSIONS JUDGE, AT BENGALURU (CCH-86)
(Commercial Court)
DATED THIS THE 31ST DAY OF MARCH 2022
PRESENT:
SMT. LATHAKUMARI M.
M.A., LL.M.,
LXXXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com. O.S. No. 3984/2018
BETWEEN:
1. The New India Assurance Co.,
Ltd., Regional Office / Claims
Hub, No.2-B, Unity Building
Annex, Mission Road,
Bangalore -560 027.
2. M/s. Tata Hitachi Construction
Machinery Co., Pvt., Ltd.,
Jubilee Building, No.45,
Museum Road,
Bangalore-560 025.
represented by the plaintiff
No.1 as Power of Attorney
Holder/ Subrogee
: PLAINTIFFS
(Represented by Sri. C.R.
Ravishankar - Advocate)
AND
2
Com. O.S. No. 3984/2018
M/s. BLR Logistics (I) Limited,
Floor No.1, 2, 3, III Cross,
Opp. To ESIC, DDUTTC Suburb,
Yeshwanthapur, Bangalore-22
Represented by its Manager.
: DEFENDANT
(Represented by Sri. Veeresh M
- Advocate)
Date of Institution of the 06.06.2018
suit
Nature of the suit (suit on
pronote, suit for Suit for recovery of
declaration & Possession, money
Suit for injunction etc.)
Date of commencement
of recording of evidence 22.10.2021
Date on which judgment 31.03.2022
was pronounced
Total Duration Year/s Month/s Day/s
03 09 25
(LATHAKUMARI M.),
LXXXV Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit filed by plaintiffs to pass a judgment and decree against the defendant for a sum of 3 Com. O.S. No. 3984/2018 Rs.5,95,141/- together with court cost and current interest at 18% p.a., from the date of this suit till realization and for such other orders as this court deems fit to grant in the facts and circumstances of the case.
2. FACTUAL BACKGROUND:
The 2nd plaintiff M/s. Tata Hitachi Construction Machinery Co., Pvt., Ltd., (also referred to as the assured/ consignor/subrogee of 1st plaintiff/PA holder of the 1st plaintiff), is a manufacturer and dealer in construction machinery equipments, spares and allied products having its registered office at Museum Road, Bengaluru. It took a policy of insurance from 1st plaintiff (New India Assurance Co., Ltd., referred to as insurer) covering transit risk between the period from 01.07.2014 to 30.06.2015 in respect of Tata Hitachi Hydraulic Excavator with accessories against theft, pilferage, nondelivery or damages. 2nd plaintiff entrusted a consignment of said Tata Hitachi Hydraulic Excavator and other accessories from its branch situated at Jamshedpur, Jharkhand State to deliver to the consignee M/s. Pandey Brothers, Pakur, Jharkhand State to the defendant herein by properly packed and handed over the same to the defendant for 4 Com. O.S. No. 3984/2018 transportation on road from Jamshedpur to Pakur, Jharkhand State. The truck of defendant which was carrying the consignment met with an accident and the consignment was completely damaged. On the basis of the surveyors certificate issued after assessment of the damage, the 1st respondent settle the claim of 2nd respondent for Rs.5,95,141/-. It is plaintiff further case that, on settlement of the claim of 2nd plaintiff, the 1st plaintiff has been subrogated to the rights of the 2nd plaintiff to recover the amount from the defendant carrier, and also holds the power of attorney/ a letter of subrogation to pursue the recovery proceedings against the defendant. Thereafter plaintiffs 1 and 2 have filed this suit, claiming a sum of Rs.5,95,141/- with interest at 18% p.a., from defendant from the date of suit till realization, as the damage to the consignment was due to the negligence on the part of defendant and its driver.
3. On issuance of suit summons the defendant appeared through its counsel and resisted this suit by filing its written statement contending that, the suit of the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed with exemplary costs. At para-2 of its written statement, the defendant has 5 Com. O.S. No. 3984/2018 mentioned that he has no comments over the averments of para-1 of the plaint and also para-2 of the plaint regarding the address of the parties to the suit. At para-3 of the written statement though defendant admits that 1 st plaintiff is a public undertaking carrying on the business of insurance such as motor, marine, fire and miscellaneous insurance having its registered office situated at M.G. Road, Fort, Mumbai, is denied the contention that the Regional Office of 1st plaintiff is situated at Mission Road, Bengaluru. Further, defendant has pleaded his ignorance with respect to business of 2 nd plaintiff and also about its registered office situated at Museum Road, Bengaluru. At para-5 of the written statement, this defendant has denied specifically that he was entrusted with the goods for transportation from the plaintiff and further contended that there is no previty of contract between the plaintiff and defendant and as such asserted that defendant is not at all liable to pay any amount to the plaintiffs. At para-6 of the written statement, this defendant has even denied the consignment i.e., Tata Hitachi Hydraulic Excavator with accessories entrusted to him by 2nd plaintiff from its branch office situated at Jamshedpur for delivery to the consignee M/s. Pande Brothers at Pakur, Jharkhand State.
6Com. O.S. No. 3984/2018 He has also denied two consignment Note bearing No. 647843 dated 22.06.2015 and categorically contended that the plaintiffs have fabricated the documents in this regard, in order to claim unlawful money from this defendant. At para-7 of his written statement this defendant has stated that, he is not having any knowledge about insurance policy obtained by 2 nd plaintiff from 1st plaintiff covering all the risk of consignment and receipt for transit risk such as shortage, damage and non- delivery etc., in transit and also mentioned that he is not at all aware of the policy bearing No. 67170021150500000005 issued by 1st plaintiff in favour of 2nd plaintiff. At para-8 of his written statement this defendant has denied the plaint averment that the truck bearing Reg. No. WB-03-C-819191 carrying the consignment met with an accident at a place known as Mukhia Dangha near Dimna Chowk, Jamshedpur on 26.06.2015 resulting in the trailer unbalanced and the machinery loaded on the truck fell on the ground causing expensive damage to the said machinery. This defendant further denied that he has delivered the consignment in damage condition and specifically mentioned that the said machinery was not at all damaged and it was delivered in 7 Com. O.S. No. 3984/2018 good condition. It is further asserted in para-8 of its written statement that, the plaintiff in order to claim the money have fabricated entire documents and put forward a false claim against this defendant, though he has never issued any damage certificate to the plaintiff. It is also contended that said damage certificate is also fabricated to substantiate the claim of plaintiff. It is further contended that plaintiffs by joining hands appointed M/s. J.C. Gupta & Co., an independent Surveyor to make spot inspection, to conduct survey and also to verify the consignment and to report, instead of appointing Government Surveyor for the said purpose. It is further asserted that plaintiffs knowing fully well that no such damage has been caused to the consignment, they have created the false claim based on false report of said J.C. Gupta. At para-10 of the written statement, it is further stated that this defendant is not having any knowledge about the amount of Rs.5,95,141/- paid by 1 st plaintiff to the 2nd plaintiff herein and contended that plaintiffs in order to make false claim have made false allegations against this defendant. There is no cause of action for the plaintiffs to file this suit and same has been filed on false and fabricated documents. At para-13 of the written 8 Com. O.S. No. 3984/2018 statement, it is further mentioned that, the said goods were insured and the alleged accident was happened during the policy was in force and hence, this defendant is not liable to pay any amount to the plaintiff. Hence pray for dismiss this suit with exemplary costs.
4. Based on these pleadings, this court framed following issues:
1) Whether the plaintiffs prove that they suffered loss of Rs.5,95,141/- on account of damages to the consignment by the Defendant?
2) Whether Defendant proves that the said goods were insured and the alleged accident was happened during the policy in force and thereby he is not liable to pay any amount to the plaintiffs?
3) Whether the Defendant further proves that the suit of the Plaintiffs has no cause of action?
4) What order or decree?
5. On behalf of 1st plaintiff insurance company, its Manager K. Yuvaraj got examined himself as PW.1 and got 9 Com. O.S. No. 3984/2018 marked as many as 14 documents Ex.P1 to P14. During his cross-examination, learned counsel for defendant got confronted photographs produced by 1 st plaintiff insurance company and got marked the same on his behalf as per Ex.D1 to D9. On behalf of defendant, its Manager in Bengaluru Branch got examined himself as DW.1. During his chief-examination he got marked one document Ex.D10, the authorization letter issued by defendant, Logistic Company Limited.
6. I have carefully scrutinized the entire records before me. Heard the arguments.
7. My findings on the above Issues are as under: -
Issue No.1: In the Affirmative Issue No.2 & 3: In the Negative Issue No.4 : As per final order for the following REASONS
8. Issue No.1 to 3: These three issues are taken up together for consideration to avoid repetition of facts.
10Com. O.S. No. 3984/2018 As I have already stated, the 1st plaintiff being the insurer and power of attorney holder/subrogee of the 2nd plaintiff respectively have filed this suit against defendant transport carrier claiming an amount of Rs.5,95,141/- from defendant along with interest at the rate of 18% towards damage of consignment. Though defendant in its written statement denied its transaction with the plaintiffs herein and also contended that goods were delivered in a good condition, later in his chief affidavit admits that 2 nd plaintiff entrusted transportation of the Tata Hitachi Hydraulic Excavator with Accessories from Jamshedpur to Pakur, Jharkhand State under consignment note bearing No. 647843 dated 22.06.2015. However, it is the contention of defendant, as per its averments in para-3 and 4 of the chief affidavit that, he accepted the consignment for transporting the same as per Ex.P1 at owner risk and goods took are carried subject to terms and conditions mentioned overleaf on 02.06.2015 and Consignment Note bearing No. 647843. It is further mentioned in this chief affidavit at para-4 that as per, the Ex.P1 receipt at owners risk on terms and conditions No.2, the common carrier shall issue the lorry receipt at "owners risk" only such consignor/consignee confers having open 11 Com. O.S. No. 3984/2018 transit insurance policy towards accident, theft, shortages, damages, leakages, against the said consignment. Further, at para-5 DW.1 has deposed, that 1st plaintiff has issued the insurance policy bearing No. 67170021150500000005 for the period from 01.07.2014 to 30.06.2015. At para-6 of the chief-affidavit DW.1 further states that, the truck bearing No. WB-03-C-8191 carrying the consignment met with an accident (the road was not in good condition) at a place known as Mukhia Danga, near Dimna Chowk, Jamshedpur on 26.06.2015 at about 6.15 PM due to the accidentally falling of Hydraulic Excavator due to unbalancing of vehicle of uneven/coarse ground during transit, the machine got damaged. In para- 7 of the chief affidavit it is stated that in the report Ex.P11 issued by plaintiffs surveyor at clause-9, the cause of damage clearly stated as "Accidental falling of Hydraulic Excavator from the trailer due to unbalancing of vehicle on Uneven/Coarse Ground during transit" and hence contended that the condition of the road was not good and due to this reason the accident occurred and also stated that any litigation in this regard the jurisdictional court is only mumbai court and hence this court has no jurisdiction. The accident occurred due to the bad 12 Com. O.S. No. 3984/2018 condition of the road and was not due to the negligence of the defendant logistics limited and also contended that said accident happened during the policy in force and thereby deposed that defendant is not liable to make any payment to the plaintiffs. All these contentions raised by defendant in his chief affidavit are new contentions. Defendant neither raised such contentions in his written statement nor produced any documents at the time of his defense. On the other hand he filed written statement entirely denying each and every aspects of plaint averments so also his relationship with the 2 nd plaintiff. He further denied that the consignment was delivered at a damaged state. With these contentions of respective parties now let me consider the relevant provisions of law.
9. It is the only contention of defendant that at the relevant point of time under the policy issued by 1 st plaintiff in favour of 2nd plaintiff with regard to the consignment was valid and thereby he is not liable to pay the amount claimed from plaintiffs. From the chief affidavit averments of DW.1 and also plaint averments it is crystal clear that the insurer i.e., 2nd plaintiff entrusted the consignment for transportation to the carrier i.e., defendant herein. The consignment was insured by the 13 Com. O.S. No. 3984/2018 assurer with the insurer i.e., 2nd plaintiff herein. When the goods were damaged in an accident, the assured, as the consignor could certainly maintain a claim seeking compensation for the loss, alleged negligence and deficiency in service. The fact that in pursuance of a contract of insurance, the assured had received from the insurer, the value of the goods lost, does not erase or reduce the liability of the wrong doer responsible for the loss. The contract of insurance is a contract of indemnity. The loss/damage to the goods covered by a policy of insurance, may be caused either due to an act for which the owner (assured) may not have a remedy against any third party (as for example when the loss is an act of an act of God) or due to a wrongful act of a third party (as for example where the loss is on account of negligence of the third party). In both cases, the assured can obtain reimbursement of the loss, from the insurer. In the first case, neither the assured, nor the insurer can make any claim against any third party. But where the damage is on account of negligence of a third party, the assured will have the right to sue the wrongdoer for damages and where the assured has obtained the value of the goods lost from the insurer in pursuance of the contract of 14 Com. O.S. No. 3984/2018 insurance, the law of insurance recognizes as an equitable corollary of the principles of indemnity that the rights and remedies of the assured against the wrong doer stand transferred to and vested in the insurer.
10. The equitable assignment of the rights and remedies of the assured in favour of the insurer, implied in a contract of indemnity, known as 'subrogation' is based on two basic principles of equity: - (i) No tort-feasor should escape liability for his wrong; (ii) No unjust enrichment for the injured, by recovery of compensation for the same loss, from more than one source. The doctrine of subrogation will thus enable the insurer to step into the shoes of the assured and insurer, and enforce the rights and remedies available to the assured. The term 'subrogation' in the context of insurance has been defined in Black's Law Dictionary and the same is extracted herein below: -
"The Principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy."15
Com. O.S. No. 3984/2018 Right of subrogation is statutorily recognized and described in Sec.79 of the Marine Insurance Act, 1963 which is extracted and reads as follows:
(1) Where the insurer pays for a total loss, either of the whole, or in the case of goods of any apportionable part, of the subject-matter insured, the thereupon becomes entitled to take over the interest of the assured in whatever may remain of the subject-matter so paid for, and he is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject-matter as from the time of the casualty causing the loss.
(2) Subject to the foregoing provisions, where the insurer pays for a partial loss, he acquires no title to the subject matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the assured and in respect of the subject matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified, according to this Act, by such payment for the loss".
Section 140 of the Contract Act, 1872, deals with the principles of subrogation with reference to rights of a surety/ guarantor which reads as under: -
"140. Rights of surety on payment or performance: Where a guaranteed debt has become due, or default of the principal - debtor to perform a guaranteed duty has been taken place, 16 Com. O.S. No. 3984/2018 the surety, upon payment or performance of all that is liable for, is invested with all the rights which the creditor had against the principal - debtor."
At this stage, it is necessary to rely upon the citation, Chancellor Boyd in National Fire Insurance Co., vs. McLaren - 1886 (12) OR 682 "The doctrine of subrogation is a creature of equity not founded on contract, but arising out of the relations of the parties. In cases of insurance where a third party is liable to make good the loss, the right of subrogation depends upon and is regulated by the broad underlying principle of securing full indemnity to the insured, on the one hand, and on the other of holding him accountable as trustee for any advantage he may obtain over and above compensation for his loss. Being an equitable rights, it partakes of all the ordinary incidents of such rights, one of which is that in administering relief the Court will regard not so much the form as the substance of the transaction. The primary consideration is to see that the insured gets full compensation for the property destroyed and the expenses incurred in making good his loss. The next thing is to see that he holds any surplus for the benefit of the insurance company. "
Subrogation, as an equitable assignment, is inherent, incidental and collateral to a contract of indemnity, which occurs automatically when the insurer settles the claim 17 Com. O.S. No. 3984/2018 under the policy, by reimbursing the entire loss suffered by the assured. It need not be evidenced by in writing. The subrogation is not evidenced by any document, but is based on the insurance policy and the receipt issued by the assured acknowledging the full settlement of the claims relating to the loss. The assured has no right to deny the equitable rights of subrogation of the insurer in accordance with law, even whether there is no document in writing to support the same. This equitable right of subrogation arises when the insured settles the claim of the assured, for the entire loss. When there is an equitable subrogation in favour of the insurer, the insurer allowed to stand in shoes of the assured against the wrongdoer.
11. With the above principles relating to subrogation, now let me scan through the oral and documentary evidence relied upon by the plaintiffs. First plaintiff insurance company Manager who got examined himself as PW.1 has also got marked as many as 14 documents in his further chief-examination. Ex.P1 is the Authorization Letter. Ex.P2 is the original LR receipt dated 02.06.2015 along with the acknowledgment issued by none other than the defendant herein. The defendant is taking shelter 18 Com. O.S. No. 3984/2018 under clause (2) of the terms and conditions mentioned in this document wherein it is stated that: "the common carrier shall issue the lorry receipt at "owners risk: only as the consignor/consignee confirms having open transit insurance policy towards accident, theft, shortages, damages, leakages against the said consignment note." In this LR Receipt itself it is mentioned at the column remarks/ acknowledgment, Machine met with accident and damaged in transit from Rso Jamshedpur to Pandey Brothers, Pakur. As I have already stated defendant had not at all taken this defence in his written statement and for the first time in his witness box at the time of filing this affidavit defendant has raised such contention. However, what is the meaning of by "Owners Risk" according to defendant has been explained by DW.1 himself in his cross-examination by stating that the owners risk mentioned in para-3 and 4 of his affidavit applies to any leakage for which defendant company cannot be held liable. It is neither the case of plaintiff nor the contention of defendant that the consignment was delivered to defendant in a damage stage. Under such circumstances this clause available in Ex.P2 is not of much helpful to the defendant herein. DW.1 categorically admits in his cross-
19Com. O.S. No. 3984/2018 examination that 1st plaintiff has paid amount of Rs.5,95,141/- to the 2nd plaintiff herein. In page No.2 of his cross-examination, DW.1 further admits that the consignment which was damaged was in their custody and they have not settled the claim of plaintiff even after receipt of summons from this court. Further he also admits that defendant not appointed any surveyor to conduct the spot inspection to assess the damage independently. He admits that plaintiff lodged his claim stating that defendant delivered the consignment in a damaged condition and they have not settled the said claim. At this stage, it is necessary to go through the provisions of Sec.9 of the Carriers Act which reads as under: - "In any suit brought against a common carrier for the loss, damage or non-delivery of [goods (including container, pallets or similar article 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." This is a presumption available to the plaintiffs herein against the defendant. In pursuance of this presumption it is not necessary for the plaintiffs to establish that accident was 20 Com. O.S. No. 3984/2018 taken place due to the negligence of the defendant or its driver. On the other hand it is for the defendant to rebut the presumption by producing oral and documentary evidence. DW.1 admits that the truck which was carrying the consignment met with an accident. It is the version of DW.1 at the time of his evidence that, since the road was uneven/coarse was unlevel, the driver failed to maintain the balance and thereby accident taken place. It is also canvassed that in the survey report of plaintiff which is as per Ex.P11 at clause (9), it is mentioned that the surface of the road was not in a level and it was uneven. It is the specific contention of defendant that, 1 st plaintiff instead of appointing the Government Surveyor got appointed his own private surveyor and thereby fabricated Ex.P11 the survey report. When such being the case, defendant having taken such contention now cannot take the shelter under said document. Even otherwise there is no material to establish that accident taken place due to the uneven surface of the road. Further, in the cross-examination of DW.1 it was elicited that if the road was uneven, there was no difficulty for the driver to take proper and clear road. DW.1 by admitting the same voluntarily deposed that the other road available was too long. This version of DW.1 21 Com. O.S. No. 3984/2018 establishes that, just to avoid length of the journey, the defendant's driver opted for other road considering that same is having shorter distance. However, uneven/coarse of the road cannot be considered as kachha road. In the photographs Ex.D1 to D9 marked during cross- examination of PW.1 by defendant himself, the road visible appears to be tar road. The duty casted on the defendant to rebut the presumption available to the plaintiff u/s 9 of the Carriers Act. Whereas defendant has not at all produced any document to substantiate his defence of bad roads. He has not produced any piece of paper to establish that accident taken place due to the existing bad roads and not due to the negligence of its driver. Defendant admits that consignment got damaged due to the truck met with an accident. It is not in dispute that the driver of the truck is an employee of defendant herein. Having came to know about the accident it is probable that defendant had talks with his driver and further he was not having any difficulty to secure the police documents like FIR and also statement of his driver recorded by concerned police and the consequence of FIR filed by concerned police with regard to this accident. Whereas defendant neither whispered those documents 22 Com. O.S. No. 3984/2018 nor made any effort to secure those documents and produce the same before this court to substantiate his defence of bad roads. In the absence of the same, this court opines that defendant has not at all rebutted the presumption available to the plaintiff u/s 9 of the Carriers Act with regard to insurer. On the other hand, though it was not necessary for the plaintiffs to establish negligence of defendant, PW.1 in his cross-examination has categorically stated that accident taken place due to the negligent act of the defendant's driver himself. Apart from the same, PW.1 has produced certificate of facts issued by defendant himself which is nothing but a damage certificate as per Ex.P4. At clause (14) of this document it is specifically mentioned that defendant has carried the consignment carefully but due to falling of Hydraulic Excavator from the trailer due to unbalancing of vehicle on coarse ground during transit the machine got damaged. The vehicle which was carrying consignment is forthcoming in Ex.D1 to D9. It is a huge truck. Even if there exist coarse ground that will not have any impact for such truck and it is probable that due to the negligence of driver the accident has taken place which resulted in damage of machine/consignment given to the defendant 23 Com. O.S. No. 3984/2018 to transport the same to Pakur, State of Jamshedpur. The defendant has not at all produced any documents pertaining to accident of its truck bearing No. WB-03-C- 8191 to rebut the presumption available to plaintiffs u/s 9 of the Carriers Act. Withholding of such a document requires an adverse inference to be drawn against defendant. That apart defendant having denied the entire case of plaintiffs in his written statement, during the course of his examination-in-chief came up with entirely different case admitting his relationship with 2 nd plaintiff and also that consignment given to him for transportation by 2nd plaintiff to its customer has been damaged due to accident. In the absence of presumption due to contract of subrogation defendant is liable to pay the amount claimed by the plaintiffs. Defendant having damaged the consignment now cannot evade from his liability stating that policy issued by 1st plaintiff taken by 2nd plaintiff herein at his personal capacity was in force. Now let me consider the jurisdiction of this court in adjudicating this issue. Though defendant not at all raised such contention in his written statement, for the first time in his chief affidavit contended that, as per his own document Ex.P4 the jurisdictional court is shown as Bombay. When a 24 Com. O.S. No. 3984/2018 certain jurisdiction is specified in a contract, an intention to exclude of others from its operation may be unlawful, the exclution clause has to be promptly concluded and the maxim expressio unius est exclusio alterius (expression of one is execution of another may be applied) and further it is also necessary to consider Sec. 20 of the Civil Procedure Code which deals with jurisdiction to institute the suit. Admittedly 1st plaintiff branch office is situated at Bengaluru and defendant's representative before this court who deposed as a witness, as stated himself in his chief-affidavit as Manager Independence Logistics, Bengaluru Branch. The 1st plaintiff having issued the Insurance Policy to the 2nd plaintiff herein whose Regional Office is also situated at Bengaluru, this court is having jurisdiction to try this matter and the contention taken by defendant in this regard does not hold any water . There is no dispute that 1st plaintiff has settled the claim of 2nd plaintiff of Rs.5,95,141/-. As per the principles of subrogation discussed supra, the defendant being the transporter/carrier of the consignment of 2 nd plaintiff who failed to rebut the presumption available u/s 9 of the Carriers Act is liable to pay the same to the 1 st plaintiff. Having damaged the consignment in transit, defendant 25 Com. O.S. No. 3984/2018 now cannot evade from his liability towards plaintiffs. On the principles of subrogation defendant is liable to pay the amount claimed by the plaintiffs. Under such circumstances, the contention taken by defendant that suit filed by the plaintiffs against him is without cause of action is also nothing but a vague statement. Defendant not at all produced even a piece of paper to show that rough ground surface/uneven ground surface resulted in the accident and there is no negligence on the part of its driver. Accordingly, I have answered Issue No.1 In the Affirmative and Issue No.2 and 3 in the Negative.
12. Issue No.4 : - In view of my findings on Issue No.1 to 3, this court opines that, it is not necessary for the plaintiffs to prove the loss/damage was due to the negligence of the defendant or its driver. The presumption regarding negligence was not rebutted by defendant. Therefore, plaintiffs are entitled to recover a sum of Rs.5,95,141/- from defendant along with interest. For the commercial transaction the interest claimed by plaintiffs at the rate of 18% appears reasonable. Accordingly, I proceed to pass the following order.
26
Com. O.S. No. 3984/2018
ORDER
The suit filed by the plaintiffs to pass
a judgment and decree against the
defendant for a sum of Rs.5,95,141/-
together with cost and current interest at the rate of 18 per cent per annum from the date of suit till realization is decreed with cost.
Defendant is directed to deposit the amount along with interest at the rate of 18% p.a., by calculating the same from the date of suit within 30 days from today, failing which 1st plaintiff being the insurer can recover the same from defendant in accordance with law.
27Com. O.S. No. 3984/2018 Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him, corrected and then pronounced by me in open Court on this the 31st day of March, 2022).
(LATHAKUMARI M.), LXXXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 K. YUVARAJ
LIST OF WITNESSES EXAMINED ON BEHALF OF
DEFENDANT:
DW.1 OMPRAKASH PRASAD
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFFS Ex.P.1 Authorization letter.
Ex.P.2 Original LR receipt dated 02.06.2015 along with acknowledgment.
Ex.P.3 Marine claim form dated 25.06.2015 along with invoice.
Ex.P.4 Certificate of facts issued by defendant / damage certificate.
28Com. O.S. No. 3984/2018 Ex.P.5 Claim notification by 2nd plaintiff herein. Ex.P.6 Final repair bill for amount of Rs.8,58,770/- issued by 2nd plaintiff.
Ex.P.7 Office copy of postal receipt for sending the claim notice through RPAD by 2nd plaintiff herein along with copy of final repair bill.
Ex.P.8 Claim form dated 25.06.2015 submitted by 2 nd plaintiff to the 1st plaintiff herein.
Ex.P.9 Letter of subrogation executed by 2nd plaintiff in favour of 1st plaintiff dated 24.03.2015. Ex.P.10 Office copy of notice dated 13.11.2017 issued by plaintiffs to the defendant herein.
Ex.P.10a Postal receipt.
Ex.P.11 Survey report along with photos and professional bill for Rs.22,183/-
Ex.P.12 Marine cargo annual turn over policy. Ex.P.13 Indemnity bond dated 26.03.2015. Ex.P.14 Payment voucher dated 27.10.2016 issued by 1 st plaintiff to the concerned surveyor.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT Ex.D1 to Photographs 9 Ex.D10 Authorization Letter (LATHAKUMARI M.), LXXXV Addl.City Civil & Sessions Judge, Bengaluru.