Bangalore District Court
M/S. Motor Industries vs M/S. First Flight Courier Ltd on 11 February, 2015
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE (CCH :15) AT BENGALURU CITY
DATED THIS THE 31TH DAY OF JULY, 2014
PRESENT:
SHRI.MASTER R.K.G.M.M. MAHASWAMIJI,
M.A., LL.B.,
VIII Addl. City Civil & Sessions Judge,
Bengaluru
ORIGINAL SUIT No. 3605/2009
BETWEEN:
PLAINTIFFS: 1. M/s. MOTOR INDUSTRIES
COMPAY LIMITED.,
Hosur Road, Adugodi,
Bangalore-560 030.
Represented by power agent/subrogee
M/s. United India Insurance Co. Ltd.
24, Classic Building, Richmond Road,
Bangalore by their Divisional
Manager.
2. M/s. UNITED INDIA INSURANCE
COMPANY LIMITED.,
Divisional Office III,
No.24, Classic Building, I Floor,
Richmond Road,
Bangalore-560 25.
Represented by Divisional Manager
(By Sri. P.S. Ranganathan, Advocate)
2
O.S.3605/2009
AND:
DEFENDANT: M/s. FIRST FLIGHT COURIER LTD.
No.89, I & II Floors, A.M. Plaza,
South wing, Vimanapura Post,
Bengaluru-560 017.
(By Sri. G.H. Nagaraj, Advocate)
Date of institution of the suit: 05.06.2009
Nature of suit: Damages
Date of commencement of
Recording the evidence: 01.07.2010
Date on which the judgment
Was pronounced: 31.07.2014
Total Duration : 5-years, 1-Month &
26-Days
*****
JUDGMENT
The plaintiffs have filed this suit against the defendant-carrier, praying to hold the defendant liable and direct to pay the 2nd plaintiff a sum of Rs.40,787/-with interest @ 12% per annum till the date of realization with costs.
3O.S.3605/2009
2. The case of the plaintiffs in brief is as under:
It is stated that the 1st and 2nd plaintiffs are public limited companies and the 2nd plaintiff is a general insurer;
the defendant is a public limited company, a common carrier for reward.
The 1st plaintiff during the course of business, transferred their stock of various motor parts from their office Ranchi to their office at Mohali under the stock transfer memos bearing Nos. 532708 and 532716 both dtd. 10.06.2006 valued at Rs.12,775.08 and Rs.47,208/-
respectively.
The said consignment of motor parts, securely packed was entrusted with the defendant carrier for safe carriage and delivery at the office of the 1st plaintiff at Mohali. In acknowledgment of such entrustment in good order and condition, the defendant issued their consignment note No.E65272367 dtd. 10.06.2006 thereby undertaking to carry and deliver the consignment in the same good order and condition as was entrusted with them. The first plaintiff insured the consignment with the 2nd plaintiff under a policy of insurance bearing No.070300/21/05/02/0000013.
4O.S.3605/2009 It is further stated that the defendant delivered the consignment in a damaged condition at destination resulting in shortage of 99 pieces of the suit consignment.
The 1st plaintiff who is the owner of the consignment at all relevant times issued a statutory notice of loss dtd. 06.09.2006 to the defendant notifying them of the loss and calling upon them to compensate the loss. The notice of loss was served on defendant on 07.09.2006 by hand at their Mohali office on the office in charge.
It is pleaded that the 2nd plaintiff appointed Vinay Mittal, an independent licensed surveyor to assess the nature, extent and quantum of loss suffered by the 1st plaintiff. The said surveyor conducted a detailed survey and issued a report dtd. 27.09.2006.
Due to the short delivery of the consignment by the defendant, the 1st plaintiff totally suffered a loss of Rs.40,787/- as detailed below :
STM No. Item Quantity Rate Amount 532708 Part No. 33 Nos. 125.07 4127.31 9411038323 5 O.S.3605/2009 532716 Part No. 66 Nos. 472.08 31157.28 9411037021 Add: Cenvat @ 16% on 4127.31 35284.59 Add: Edn. Cess @ 2% 660.37 Add: Incidental Charges @ 5% 1797.91 Add: Survey fee paid 3031.00 Total 40787.08 Rounded off to Rs.40,787/-
The defendant issued their certificate dtd. 25.09.2006 and admitted the fact of short delivery of 99 Nos. of the parts and so admitted the value of loss. It is due to negligence and lack of care on part of the defendant coupled with mis feasance, mal feasance and/or non feasance on part of the defendant / their men and/or their agents. The defendant is called upon to disclose as to how they handled the suit consignment when they had exclusive custody of the same during transit It is further pleaded that on 26.10.2006, the 1st plaintiff lodged their claim on the 2nd plaintiff and claimed Rs.40,787/- and the 2nd plaintiff indemnified the 1st plaintiff's claim and paid a sum of Rs.30,446/- on 6 O.S.3605/2009 06.11.2006 and a sum of Rs.10,341/- on 23.11.2006 as per the terms and conditions of the policy.
Upon such indemnification, the 1st plaintiff executed a letter of subrogation and special power of attorney in favour of the 2nd plaintiff at Bangalore on 16.11.2006 and as per section 79 of the Marine insurance Act, the 2nd plaintiff is filed this suit along with 1st plaintiff.
It is further pleaded that the claim papers were entrusted by 2nd plaintiff with their recovery agents M/s. V. N. Claims Consultancy and they lodged a claim on the defendant on 22.06.2007 under clear postal acknowledgement.
Hence, the plaintiffs are constrained to file this suit against the defendant-carrier for the above reliefs.
3. On receipt of suit summons, the defendant entered appearance through his counsel and filed written statement contending inter alia as under :
The defendant carrier denied all the plaint averments except specifically admitted.7
O.S.3605/2009 The defendant has contended that suit is not maintainable and barred by jurisdiction.
Therefore, the defendant prayed to dismiss this suit with exemplary costs.
4. On the basis of the pleadings of the parties, the following Issues have been framed for consideration and decision :
ISSUES
1) Whether the plaintiffs prove that the delivered consignment was in damaged condition resulting in shortage as alleged?
2) Whether the plaintiffs proves that they are entitled for Rs.40,787/- with interest at the rate of 12% per annum as prayed?
3) What Order or Decree?
5. The plaintiffs in order to prove their case, G.R. Prakash, Asst. Manager of 2nd plaintiff Insurance Company has got examined as P.W.1 and produced the documents and got marked as Ex.P.1 to Ex.P.14 and closed the side.8
O.S.3605/2009 On the other hand, the defendant did not lead any rebuttal evidence and not got marked any documents on its behalf.
I heard the arguments and perused the oral and documentary evidence placed on record.
6. My findings on the aforesaid issues are as under:
Issue No.1 - Affirmative;
Issue No.2 - Partly affirmative; Point No.3 - As per final order for the following:
REASONS
7. ISSUE NO. 1 & 2: Since these two issues are interlinked each other, they are taken up together for joint consideration.
It is the case of plaintiffs that the defendant-carrier delivered the goods/consignment in damaged condition resulting in shortage due to its negligence and it is liable to pay a sum of Rs.40,787/- with 12% interest per annum.
9O.S.3605/2009 The defendant denied the above averments in the written statement.
Therefore, it is a duty of plaintiff to prove their case as per Section 101 and 102 of Indian Evidence Act.
8. In this regard, in support of the plaintiffs' case to substantiate the claim of plaintiffs, the officer of the 2nd plaintiff insurance company is got examined as P.W.1 and got marked 14 documents i.e. Ex.P.1 to P.14.
9. P.W.1 Sri. G.R. Prakash, the Asst. Manger of 2nd plaintiff- United India Insurance Co. Ltd., he has stated on his affidavit evidence by reiterating the plaint averments.
P.W.1 is not cross-examined by the defendant counsel; inspite of given sufficient time and opportunity. Therefore, this court by its order dtd. 11.02.2014, taken the cross-examination of P.W.1 by the defendant-carrier as Nil. Hence, the evidence of P.W.1 remained unrebutted, unimpeached and uncontraverted; therefore I have no other way except to accept it as it is. Moreover, the 10 O.S.3605/2009 evidence of said witness, in my view is credible and inspire confidence.
10. Now, let us to examine the documents produced by the plaintiffs in support of plaintiffs' case, i.e. Ex.P.1 to P.14:
1 Ex.P.1 - Copy of invoice; Ex.P.2 - Copy of Invoice common dtd. 10.06.2006, which show that 1st plaintiff sent goods through defendant-carrier and it found 33 Nos. and 66 Nos. parts respectively short delivered to the destination at Mohali 2 Ex.P.3 - Copy of Consignment note dtd.
10.06.2006 issued by defendant, it reveals that the 1st plaintiff dispatched the consigned goods through defendant-carrier by entrusting the same.
3 Ex.P.4 - Claim letter dtd. 06.09.2006 it reveals that 1st plaintiff wrote a letter to defendant about short delivery of parts at 11 O.S.3605/2009 Mohali and to issue claim letter.
4 Ex.P.5 - Short delivery certificate for consignment dtd. # E65272367 dated 25.09.2006, it shows that consignee at Mohali wrote a letter to defendant regarding short delivery of parts.
5 Ex.P.6 - Claim bill dated 25.09.2006, which discloses that it is issued by defendant and it is mentioned that it was found that 99 pieces were short received.
6 Ex.P.7 - Marine Survey Report dtd. 27.09.2006, on perusal, it discloses that the loss for short delivery of 99 pieces is Rs.35,284/-.
7 Ex.P.8 - Claim Bill dtd. 26.10.2006, wherein the 1st plaintiff has calculated the loss including incidental charges and survey fees to the tune of Rs.40,787/- .12
O.S.3605/2009 8 Ex.P.9 - Settlement intimation vouchers dtd. 06.11.2006, it discloses that the 2nd plaintiff has settled the claim of 1st plaintiff, by paying Rs.30,446/- and Rs.10,341/- totally Rs.40,787/-.
9 Ex.P.10 - Letter of subrogation and special power of attorney dtd. 1611.2006, on perusal, it discloses that it is executed by the 1st plaintiff in favour of 2nd plaintiff-Insurance Company at Bangalore, subrogating its rights to recover the damages from the defendant.
10 Ex.P.11 - Survey Report dtd. 22.06.2007 of VNC Claims consultancy, it discloses that it has calculated total loss at Rs.40,787/-
11 Ex.P.12 - Notice dtd. 04.07.2008, issued by VNC Claims consultancy to the defendant-carrier, calling upon to settle the claim.
12 Ex.P.13, P.14 - Postal acknowledgments 13 O.S.3605/2009 thereof.
11. On careful reading of above documents produced by the plaintiffs, it is crystal clear that as per Ex.P.8 claim bill and Ex.P.11 survey report and Ex.P.9 - 2 settlement vouchers and Ex.P.10 letter of subrogation and general power of attorney, the 2nd plaintiff is settled claim of 1st plaintiff for Rs.40,787/-. Therefore, I safely conclude that plaintiffs are entitled for Rs.40,787/-.
12. The oral evidence of P.W.1 coupled with documentary evidence i.e. Ex.P.1 to Ex.P.14 prove the case of the plaintiffs as already held.
In so far as negligence and liability of defendant carrier is concerned:
(i) It is useful to refer a decision in NATH BROS EXIM INTERNATINAL LTD. VS. BEST ROADWAYS LTD. ((2000) 4 SCC 553), wherein the Hon'ble Apex Court of India is held that Consumer Protection Act, 1986- S.2(1)(d) -
Carriers Act, 1865, Ss.6,8 and 9 -Defect in service-
14O.S.3605/2009 Goods entrusted to common carrier for transportation- Liability of common carrier, held, would be governed by Carriers Act- Ss.151 and 152 of Contract Act not applicable- Liability same as that of an insurer- Carrier has to take due care of the goods as he would have taken of his own goods- He would be liable for the loss or damage cause to the goods due to this own negligence or criminal act or that of his agent or servants, notwithstanding any special contract limiting his liability as envisaged under S.6 of Carriers Act- even if the goods were booked with the carrier "at owner's risk", that would not exempt the carrier from his own negligence or that of his agent or servants-
It is further held that in a suit filed for recovery of damages, burden will not lie on the plaintiff owner to prove that the loss or damage to the goods was caused owing to negligence or criminal act of the carrier or his agent or servants by virtue of S.9 of Carriers Act- Only exception to the carrier's liability is where the loss or damage is caused due to an act of God or enemies of the State- Goods 15 O.S.3605/2009 booked by appellant with respondent common carrier "at owner's risk" for transportation-Goods, while stored in godown destroyed by fire.
Claim petition filed by the appellant before the National Commission alleging deficiency in service. But it was dismissed by taking the view that respondent would not be liable as it had taken all possible care which was expected of it as a carrier- Held, this was not the correct approach- Case remanded to National Commission for disposal afresh.
(ii) It is also profitable to refer another decision in between parties i.e. M/s. KARNATAKA TRANSPORT CORPORATION, BANGALORE V/S NATIONAL INSURANCE BANK LTD., BANGALORE (AIR 1999 KAR. 233), wherein the Hon'ble Karnataka High Court is held that Carriers Act (3 of 1865), S.9- Suit for loss, damage or non-delivery of goods- Negligence of carriers-Burden of proof is not on plaintiff, but on defendant-carrier to prove that there was no negligence on his part.
By holding as above, it is observed that in a suit for loss, damage or non delivery of goods filed 16 O.S.3605/2009 against the carrier, the plaintiff is not 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 were negligence on the part of the carrier unless the defendant carrier produces evidence to rebut it and unless and until defendant carrier proves that the loss has been caused due to the act of god and the cause for loss has not been the negligence of the carrier i.e. inevitable accident which could not be avoided in spite of best efforts and burden lie on the defendant to establish it.
(iii) It is also lucrative to quote another ruling in PATEL ROADWAYS LTD., V/S BIRLA YAMAHA LTD., reported in (AIR 2000 SC PAGE 1461), wherein the Hon'ble Supreme Court is held as under :
17O.S.3605/2009 "Section 9 of Carriers Act, 1865, Common carrier - Liability - Equivalent to that of insurer - Loss or damage to goods entrusted to carrier -Consignor need not prove negligence.
By holding thus, it is observed that the liability of a common carrier under the carriers act is that of on insurer. As per Sec. 9 of Carriers Act in case of claim of damage or loss to or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. The general principle of tortious liability that who alleges negligence must prove has no application to a case covered under the Carriers Act.
(iv) It is also advantageous to refer a relevant ruling reported in ILR 2005 KAR 3403 in between BASAVARAJ YELLAPPA PUNDI VS. THE NATIONAL INSURANCE COMPANY LTD. AND ANOTHER, wherein the Hon'ble High Court of Karnataka is held as under :
"The very Section would indicate that in a claim made by the plaintiff for loss, damage or non-delivery, the plaintiffs are not required to prove negligence or criminal act in any suit filed by 18 O.S.3605/2009 them against the common carrier claiming compensation, damage etc. The moment the goods are not delivered to the consignee as per the contract between the consignor and the carrier he becomes liable to pay any loss caused on account of non-delivery of the goods.
The rights and liabilities arising on account of the appellant carrying the goods of the consignee as a public carrier cannot be restricted or restrained by virtue of a contract.
By occurrence of the accident or under the law of the land, the carrier would be responsible for all the losses caused to the consignee if the goods are not delivered intact as they were handed over to the carrier. For all the losses caused to the consignee, the carrier alone is responsible. By virtue of insurance policy being taken in respect of the goods that were transported by the consignee in the truck of the appellant, a different relationship altogether between the insurer and the insured comes into existence. By virtue of the policy the first plaintiff becomes liable to compensate the losses caused to the second plaintiff".19
O.S.3605/2009
13. The supra noted rulings and the principles laid down thereof made it crystal clear that the plaintiffs are not necessary to prove the negligence of defendant-carrier. The burden of proof is on the defendant-carrier to rebut the presumption regarding negligence.
14. Although, the defendant did not cross-examine and lead the rebuttal evidence on its behalf, the defendant counsel has relied upon a ruling in SONIC SURGICAL V. NATIONAL INSURANCE CO. LTD.(IV (2009) CPJ 40(SC)) I have gone through supra noted decision, there is no dispute regarding principle lay down, but it is not applicable to the facts, circumstances and situation of this case.
It is pertinent to note that the objection regarding jurisdiction should be raised at the preliminary stage and not at the stage of argument.
It is important to note that it is settled law that the court within its jurisdiction a letter of subrogation and special power of attorney is executed is having territorial jurisdiction.
20O.S.3605/2009
15. In so far as interest is concerned, in my considered view 6% interest per annum is just and proper under the facts and circumstances of this case.
16. At this juncture, regarding non adducing of defendant's evidence, it is relevant to refer a decision in ESHWAR BAI C. PATEL VS. HARIHAR BEHERA reported in AIR 1999 SC 1341, wherein, the Hon'ble Apex Court is held that:
"when a person fails to enter into witness box to state his case on oath, the adverse inference can be drawn as per Sec. 114 of Indian Evidence Act, against such person".
17. In this context, it is also profitable to refer another decision in Vidhyadhar Vs. Manikrao and another (1999) 3 Supreme Court Cases 573, wherein the Hon'ble Supreme Court has held that.
Evidence act, 1872 - s. 114 iii. (g) - presumption
- if a party abstains from entering the witness-box, an adverse inference would arise against him.
21O.S.3605/2009 Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set-up by him is not correct.
For the reasons stated above and observations made in the light of rulings, I hold and record my findings on Issue No.1 in the affirmative and Issue No.2 in partly affirmative.
18. ISSUE NO.3: In view of my findings on aforesaid issues, discussions and foregoing reasons in the light of authorities, I am of the considered opinion and inclined to hold that the 2nd plaintiff-insurance company is entitled for the relief as already held. It is fit case to grant such reliefs, since there is sufficient and satisfactory oral and documentary evidence on record to the required standard. Accordingly, I answered aforesaid issues and proceed to pass the following:
ORDER 22 O.S.3605/2009 In the result, therefore this suit filed by the plaintiffs against the defendant-carrier is hereby partly decreed with costs.
ii. Consequently, the defendant - First Flight Couriers Ltd. is held liable and hereby directed to pay sum of Rs. 40,787/- as damages, with interest at the rate of 6% per annum pendentelite and future interest till the date of realization of decreed amount.
iii. Draw decree accordingly.
(Dictated to the Stenographer, directly over computer, typed matter, corrected, signed and then pronounced by me in open Court on this the 31st day of July, 2014.) (MASTER R.K.G.M.M. MAHASWAMIJI) VIII Additional City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the plaintiff;
P.W.1- G.R.Prakash List of Documents marked on behalf of the plaintiff:-23
O.S.3605/2009 Ex.P.1 Copy of the Notice Ex.P.2 Copy of the common Invoice dtd.10.06.2006 Ex.P.3 Copy of the consignment note dtd.
10.06.2006 Ex.P.4 Claim letter dtd. 06.09.2006 Ex.P.5 Short delivery certificate for consignment dtd. 25.09.2006 Ex.P.6 Claim bill dtd. 25.09.2006 Ex.P.7 Marine certificate Report dtd. 29.09.2006 Ex.P.8 Claim bill dtd. 26.10.2006 Ex.P.9 Settlement intimation vouchers dtd.
06.11.2006 Ex.P.10 Letter of subrogation and special power of attorney Ex.P.11 Survey Report dtd. 22.06.2007.
Ex.P.12 Notice dtd. 04.07.2008 Ex . P . 1 3 Postal acknowledgments.
and P.14 List of witnesses examined on behalf of the defendant :-
Nil List of Documents marked on behalf of the Defendant :-
Nil VIII Addl. City Civil & Sessions Judge, Bengaluru.
24 O.S.3605/2009 31.07.2014 P-PSR D- GHN Judgment (The following Judgment is pronounced in the open court vide separate) ORDER In the result, therefore this suit filed by the plaintiffs against the defendant-carrier is hereby partly decreed with costs.
ii. Consequently, the defendant - First Flight Couriers Ltd. is held liable and hereby directed to pay sum of Rs. 40,787/- as damages, with interest at the rate of 6% per annum pendentelite and future interest till the date of realization of decreed amount.
iii. Draw decree accordingly.
VIII ACC & SJ, Bengaluru.
26 O.S.8880/2013 Order on I.A.1