Bangalore District Court
M/S Page Industries Limited vs Capital Shipping Private Limited on 30 October, 2024
KABC170011792023
IN THE COURT OF LXXXVII ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH.88)
Present: Smt. Roopa K.N., B.Sc., LL.B.,
LXXXVII Addl.City Civil &
Sessions Judge, Bengaluru.
Dated: 30th day of October, 2024
Com.O.S. No.601/2023
PLAINTIFFS : 1 M/S Page Industries Limited
Umiya Business Bay - Tower - 1, 7th
Floor, Cessna Business Park,
Kadubeesanahalli, Varthur Hobli,
Bengaluru - 560 103.
Rep By Subrogee/Power Agent By
Second Plaintiff M/S National
Insurance Co Ltd.
2 M/S National Insurance Co Ltd
Division No.II, No.72, I Floor, 11th
Main, Jayanagar, IV Block,
Bengaluru - 560 011. Rep By
Principal Office
(By Sri RPS Advocate)
- Vs-
/2/
Com.O.S.No.601/2023
DEFENDANT : Capital Shipping Private Limited
No.2707 B & C 62 & 62B Ground
Floor, 4th Cross, 14th Main,
Sahakaranagar, Gundanjaneya
Temple, Bengaluru - 560 092. Rep
by its Manager.
(By Sri.N.A.Advocate)
Date of Institution of the suit 22.05.2023
Nature of the suit (suit on Transactions of merchants,
pronote, suit for declaration & financiers, traders relating
Possession, Suit for injunction mercantile documents
etc.) (enforce, interpret)
Date of commencement of 14.07.2023
recording of evidence
Date on which judgment was 30.10.2024
pronounced
Total Duration Year/s Month/s Day/s
01 05 08
(ROOPA K.N.),
LXXXVII ACC & SJ (CCH-88),
(Commercial Court)
Bengaluru.
/3/
Com.O.S.No.601/2023
:JUDGMENT:
This suit is filed by the plaintiffs against the defendants for recovery of Rs.9,93,375/- with interest at the rate of 12%.p.a.
2. It is the case of the plaintiff that, during the course of business 1st plaintiff imported 171 rolls of Nylon Knitted elastane fabric from its consigner from Hong Kong and the said consignment came from Chaina to Chennai port by sea and thereby Chennai to Bengaluru through road. Defendant entrusted the 1st plaintiff that, the consignment will be sent securely packed with safe carriage to the destination towards this defendant issued transport bill and delivery challan dtd:06.09.2020. But, defendant failed to deliver the consignment in a good condition and some of the consignment were damaged and wet and were unsuitable for usage hence, plaintiff issued notice on 30.10.2020. Thereafter, plaintiff also appointed its loss assessor who /4/ Com.O.S.No.601/2023 assessed the damaged to the tune of Rs. 9,93,375/- which was settled by the 2nd plaintiff under the marine insurance policy. Thereafter, on the basis of letter of subrogation dtd:22.09.2021 this suit came to be filed.
3. After service of summons defendant appeared through his counsel and filed written statement wherein delivery of consignment was admitted but, it was denied that, consignment was damaged. Further, it is contended that, though plaintiff No.1 acknowledged receipt of shipment with remark that out of 171 rolls 11 rolls were damaged and in wet condition but, issued notice on 30.10.2020 wherein he claimed 35 rolls were damaged contrary to delivery challan. It is also contended that, as on the date of suit transaction the marine policy entered into between the plaintiff No.1 and 2 was not at all in existence. For these reasons defendant sought for dismissal of the suit.
/5/ Com.O.S.No.601/2023
4. On the basis of the pleadings, this Court has framed the following issues:
1. Whether the plaintiffs prove that the consignment for transportation was entrusted to the defendant to safe carriage and delivery to the plaintiffs in the same apparent good order and condition as was entrusted?
2. Whether the plaintiffs prove that the said consignment entrusted was not delivered in the same good order and condition as entrusted?
3. Whether the plaintiffs prove that the loss suffered by them are due to misfeasance, malfeasance or nonfeasance on the part of defendant their men or their agents?
4. Whether the defendant proves that the damaged delivery / non delivery was due to the statutory reason beyond their control?
5. What order or decree?
5. My findings on the above issues are as under:
Issue Nos.1 to 3: In the "Negative" Issue No.4 : "Does not arise for consideration"
Issue No.5 : As per the final order for the following;
/6/ Com.O.S.No.601/2023 :REASONS:
6. ISSUE NOS.1 and 2:- As all these points are inter connected, they have been taken-up together for common discussion and to avoid repetition of facts and evidence.
In order to prove this issue one M.B.Sreekar, Asst. Manager of 2nd plaintiff examined himself as P.W.1 and got marked Ex.P.1 to P.18. On the other hand, Director of defendant company by name G.M.Kumar examined as D.W.1 and he got marked Ex.D.1 to D.3.
7. Heard both the side.
8. It is the main contention of the plaintiff No.2 that, plaintiff No.1 imported 171 rolls of Nylon fabric from Hong Kong Chaina which reached Chennai port by sea and 1 st plaintiff insured the said consignment with 2 nd plaintiff under marine insurance policy bearing No.6021002120100000003. Since some of the goods were we tin condition and damaged and not fit for usage 1 st /7/ Com.O.S.No.601/2023 plaintiff claimed the amount of Rs. 9,93,375/- from the 2nd plaintiff through the said insurance policy. Thereafter, letter of subrogation was issued on the basis of which 2 nd plaintiff is now claiming the suit claim amount from the defendant. Before coming to the documentary evidence, I would like to discuss about the cross-examination of P.W.1. If we peruse Ex.P.1 to P.18 admittedly, P.W.1 has not produced any authorization letter, nor any document to show that, he is working as Asst. Manager in 2 nd plaintiff and he admitted this fact in the beginning of his cross- examination itself. He also admitted that, he is not the one who prepared the plaint and attested signature to it. According to him one Sureshkumar Deputy Manager of 2 nd plaintiff is the one who has signed the plaint to whom Divisional Manager had given authorization to file the suit but, no such document is produced. He further admitted that, the above mentioned Sureshkumar still works in 2 nd /8/ Com.O.S.No.601/2023 plaintiffs company and there is no impediment for him to appear before this court and given evidence. According to P.W.1 since Sr. Divisional Manager orally authorized him to give evidence he has filed his affidavit of chief examination. Even he also admitted that, 2 nd plaintiff has not produced document to show that, even this Sureshkumar was authorized to sign the plaint. In para 2 of the cross- examination this P.W.1 was cross-examined about appointment of independent surveyor, circumstances under which letter of subrogation can be issued etc. If we peruse this cross-examination this P.W.1 totally unaware about the rules of subrogation rights according to him, Ex.P.15 is the letter of subrogation issued by the 1 st plaintiff in favour of the 2nd plaintiff and he do not know whether any other documents except Ex.P.15 have been executed by the 1st plaintiff in favour of the 2 nd plaintiff. He also admitted that as per Ex.P.4 the marine insurance /9/ Com.O.S.No.601/2023 policy office had given insurance amount to the 1 st plaintiff. According to him Ex.P.17 is the letter of subrogation and SPA issued by 1st plaintiff in favour of 2nd plaintiff and in the last page of Ex.P.17 there is a signature of one authorized signatory but, this P.W.1 do not know his name and also whether that person still works in 2 nd plaintiff office. He also admitted that, there is no signature of plaintiff company on Ex.P.17 and he do not know who authorized the person who executed Ex.P.17 on behalf of the 1st plaintiff. He denied that, Ex.P.17 is a created document. He do not know what is custom house agent, carrier for reward and the rules pertaining to them. He also do not know who appointed defendant company on behalf of the 1st plaintiff but, he deposed that, Anandagouda from 1st plaintiff company was doing business with defendant but, he do not know whether this Anandagowda is still working in plaintiff company. In the /10/ Com.O.S.No.601/2023 later part of cross-examination P.W.1 deposed about production of invoices Ex.P.6 to 9 and 10 and also admitted that, they were signed by authorized signatory of plaintiff but, he do not know his name and details and also whether that signatory is working in plaintiff company.
9. Further, P.W.1 was cross-examined about the damages to the goods. According to him about 35 rolls were damaged but, he cannot exactly saw the number. Page 46 of Ex.P.13 is the document to show this damage and he do not know when he came to know about the damages happened to these 35 items and he do not know who prepared Ex.P.11 e-way bill and also why the said document is produced before this court but, he admitted that, contents of Ex.P.11 are true. He do not know when 1st plaintiff informed the 2nd plaintiff about the damage of 35 items and he is not aware whether defendant was /11/ Com.O.S.No.601/2023 permitted to dispose those damaged 35 items to scrap. He do not know about the person who has signed Ex.P.6. He do not know when 1st plaintiff submitted claim form Ex.P.16. According to him claim of 1 st plaintiff was settled on 22.09.2021. He do not know any details about the person who has signed loss voucher Ex.P.15. Ex.P.1 is the bill of entry dtd:25.09.2020, Ex.P.2 is the delivery challan dtd:29.09.2020, Ex.P.3 is the notice of loss dtd:30.10.2020, Ex.P.4 is the insurance policy by the 1 st plaintiff with 2nd plaintiff, Ex.P.5 is the invoice, Ex.P.6 and 7 are the tax invoices, Ex.P.8 is the packing list, Ex.P.9 is the tax invoices, Ex.P.10 is the tax invoice, Ex.P.11 is the e-way bill syster, Ex.P.12 is the combind transport bill fo lading, Ex.P.13 is the trans shipment application, Ex.P.14 is the survey report, Ex.P.15 is the loss voucher, Ex.P.16 is the marine cargo claim for, Ex.P.17 is the letter of subrogation and SPA, Ex.P.18 is the PIM.
/12/ Com.O.S.No.601/2023
10. D.W.1 also produced Ex.D.1 Board of Resolution, Ex.D.2 reply letter dtd:13.11.2020, Ex.D.3 e-mail communication.
11. The learned counsel for plaintiff has filed written arguments re-iterating the averments of plaint and inter- alia contended that, as per Sec.9 of Carriers Act "Plaintiffs, in suits for loss or damage or non-delivery, not required to prove negligence on the part of the defendant common carrier or their men, or agents, in any suit brought against the defendant common carrier of the goods including container, pallet or similar articles of transport used to consolidate goods) to him for carriage. It shall not be necessary for the Plaintiffs to prove that such loss damage or non-delivery was owing to the negligence or criminal act of the carrier, his servant or agents." Doctrine of Subrogation is the "Equitable assignment" of rights and remedies of the assured as Subrogation is based on two /13/ Com.O.S.No.601/2023 principles of equity. a) No tortfeasor shall escape the liability for his wrong. b) No unjust enrichment for the injured by recovery of compensation for the same loss, from more than one source-Doctrine of subrogation thus enables the insurer, to step into the shoes of the assured and enforce rights and remedies available to the assured.
c) Para 12 the term subrogation in the context of insurance has been defined in Blac's Law Dictionary thus; d) 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 the third party with respect to any loss covered by the policy. e) The rights of subrogation are a statutorily recognized and described in Section 79 of the Marine Insurance Act. The doctrine of subrogation is a creature of entity not founded on contract but arising out of the relations of the parties. In case of insurance where a third party is liable to make good the /14/ Com.O.S.No.601/2023 loss, the right of subrogation depends upon and is regulated by broad underlying principles of securing full indemnity to the insured, on one hand and on the other, holding him accountable as a trustee for any advantage he may obtain over and above compensation for his loss. Being equitable rights, it par-takes of all ordinary incidents of such rights, one of which is administering the relief court. With regard not so much the form as substance of the transaction. An assignment on the other hand refers to a transfer of the right to of transfer for consideration when there is an absolute assignment. It is submitted that the other grounds prayed for by the defendant carrier that the consignment is carried at Owner's risk has no bearing upon the suit prayer as damage is caused.
12. On the other hand, the learned counsel for defendant while addressing his arguments relied on following decisions;
/15/ Com.O.S.No.601/2023
1. Supreme Court of India 2010(1) Supreme 058- Economic Transport organization Vs M/S Charan Spinning Mills P Ltd
2. AIR 1997 Supreme Court -3- United Bank of India Vs Naresh Kuma & others Respondents- Civil appeal 11884 of 1996 Dated 18.9.1996.-
3. Krantaka High Cor ut2005 3 RCR (civ0 337) Yellappa Pundi Vs National Insurance Co Ltd.
4. 2004 (4) CTC 273 In the High Court of Madras. Patel Roadways vs Seshasayee Industries Pvt Ltd-
5. High Court of Judicature at Madras- 2000(2) L.W. 770- Ravichandran transports Vs United India Insurance Co Ltd-
6. Madras High Court - 2004 0 AIR (Mad) 538. Bonds Foods P Ltd Vs Planters Airways Corporation Ltd
7. High Court of Judicature, Andhra Pradesh at Hyderabad-2009(1) ALT 8: 2008 0 Supreme (AP) 663- New India assurance Co Ltd & another- Appellant Vs State O A.P. rep. by Fisheries & others-
13. If we carefully peruse the oral and documentary evidence of both plaintiff and defendant no doubt it was true that, the consignment undertaken by the defendant to be delivered to 1st plaintiff from Chennai to Mandya was /16/ Com.O.S.No.601/2023 insured with 2nd plaintiff. Ex.P.4 is the marine insurance policy and according to plaintiffs it was under this policy plaintiff insured his consignment and on the basis of his report he made a claim that, 2 nd plaintiff under Ex.P.16 which is a claim form and under Ex.P.15 he received Rs.9,93,375/- from the 2nd plaintiff. If we carefully peruse the averments of plaint and affidavit in lieu of chief examination of plaintiff the consignment was sent by Chaina to Chennai port by sea and thereafter it reached Bengaluru though road on 06.09.2020. Nowhere in the plaint there is a pleading as to on which date consignment reached its original destination at mandya and when this plaintiff No.1 noticed the damage in goods. Before going to discuss about the damage of goods it would be proper on my part to discuss about Ex.P.4 which is a marine insurance policy and the said policy period was from 01.04.2019 to 31.03.2020. Ex.P.1, Ex.P.5 to Ex.P.10 are /17/ Com.O.S.No.601/2023 the tax invoices and Ex.P.11 is a e-way bill which shows that consignment was to be delivered to K.R.Pete Talukh Mandya District. Ex.P.13 is the document i.e., transshipment application dtd:22.09.2020 under which plaintiff No.1 has informed the Asst. Commission of Customs that, they have received 171 rolls of knitted fabric out of which 35 rolls were rejected. Ex.P.14 is a report prepared by one Prasanna Kumar R. The Surveyor who assessed the loss suffered by the 1 st plaintiff due to delivery of damaged goods. Unfortunately this surveyor has not at all been examined by the 2nd plaintiff to prove the contents of Ex.P.14. Apart from this, plaintiff No.2 has failed to explain as to how plaintiff No.1 was paid the suit claim amount under the above policy which was only in existence from 01.04.2019 to 31.03.2020. Even plaintiff has not produced any document to show when this policy was renewed. There is no material before this court to show /18/ Com.O.S.No.601/2023 that, before 31.03.2020 this Ex.P.4 policy was renewed by the 1st plaintiff. Surprisingly, 1st plaintiff filed claim petition as per Ex.P.16 on 01.04.2020 i.e., one day after lapse of Ex.P.4 and on 23.07.2021 this surveyor prepared the report and on 22.09.2021 2 nd plaintiff paid the policy amount to the 1st plaintiff. If these facts are perused, it is very much clear that, whatever amount paid by the 2 nd plaintiff to the 1st plaintiff is only after expiration of Ex.P.4 and this fact has not been explained by P.W.1. Under Ex.D.2 dtd:13.11.2020 defendant denied the claim of 2 nd plaintiff and under Ex.D.3 which is an e-mail dtd:27.11.2020 one Ananda Gowda intimated this D.W.1 Kumar to do the needful. Further, if the evidence of P.W.1 is perused, I would like to rely on the decision laid down by the Hon'ble Apex Court in a case of Janki Vashdeo Bhojwani And Another vs. Indusind Bank Ltd. And others, (2004) 3 SCC where it was held;
/19/ Com.O.S.No.601/2023
(i) Order 3 Rules 1 and 2 CPC- Whether the word "acts" employed in Order 3 Rule 1 and 2 CPC would include deposing in place of and instead of the principal?
-If the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. (Para 13)
(ii) Whether power of attorney holder can depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which only principal is liable to be cross-examined?
-Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.(Paras 13,17,18,19,20,21) /20/ Com.O.S.No.601/2023
13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
14. In the light of the ratio laid down in the above decision by Hon'ble Apex Court if the evidence of P.W.1 is perused, he has not produced any document to show that, /21/ Com.O.S.No.601/2023 he is working as an Asst. Manager in the office of 2 nd plaintiff and he has person knowledge about this case. Even he has admitted that, the Divisional Manager of 2 nd plaintiff though authorized one Suresh Kumar to sign the plaint there is no authorization letter produced before this court and this Suresh Kumar still working in 2 nd plaintiff office and there is no difficulty for him to appear before this court and give evidence. P.W.1 did not deposed before this court as to from which period he is working as Asst. Manager in the office of 2 nd plaintiff so that he has personal knowledge about this case. His evidence also shows that, he is not at all a signatory to any of the suit documents like Ex.P.4 the policy, letter of subrogation, Ex.P.17, Ex.P.15. Further, he also admitted that, suit transaction was done by one Ananda Gowda but, he do not know whether he is still working in the office of 2nd plaintiff. If the whole evidence of P.W.1 is perused, it is very much clear that, he /22/ Com.O.S.No.601/2023 has not personal knowledge about this case nor the suit transaction. In the absence of any document to show that, this P.W.1 is working as an Asst. Manager in the office of 2nd plaintiff, his evidence cannot be relied upon. Further, the letter of subrogation marked as Ex.P.17 is only a notarized copy but not the original document and hence, same cannot be relied upon and even it do not bear the signature of advocate who identified the signature of authorized signatory of 1st plaintiff company. Coming to the question of Issue No.4 casting burden on defendant to prove that, damaged delivery was due to statutory reason beyond their control. In my opinion since the marine insurance policy had already been expired much earlier to shipment and delivery of goods to 1 st plaintiff, question of defendant proving Issue No.4 does not arise as burden was on 1st plaintiff to prove this issue but, 1 st plaintiff did not appeared and gave evidence through it was the 1 st plaintiff /23/ Com.O.S.No.601/2023 who was competent to prove that, policy was in existence as on the date of delivery of goods and receipt of damaged goods. In view of all these facts, I hold plaintiff has utterly failed to prove Issue No.1 to 3. Accordingly, Issue Nos.1 to 3 answered in the "Negative and Issue No.4 "Does not arise for consideration".
15. Point No.4 :- For the aforesaid reasons, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby dismissed with costs.
Draw decree accordingly. (Dictated to the Stenographer, typed by him, corrected and then pronounced by me in open Court on this the 30th day of October, 2024.
(ROOPA K.N.) LXXXVII ACC & SJ (CCH-88) (Commercial Court) Bengaluru /24/ Com.O.S.No.601/2023 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF :
PW-1 M.B.Sreekar LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Bill of entry dtd:25.09.2020 admitted - Ex.P.1 28.06.2023 Ex.P.2 Delivery challan dtd:29.09.2020 Ex.P.3 Notice of loss dtd:30.10.2020 Insurance policy by the 1st plaintiff with Ex.P.4 the 2nd plaintiff Ex.P.5 Invoice Ex.P.6 & Tax invoices Ex.P.7 Ex.P.8 Packing list Ex.P.9 Tax invoices Ex.P.10 Tax invoices Ex.P.11 E-way bill system Ex.P.12 Combind transport bill of lading Ex.P.13 Trans shipment application Ex.P.14 Survey reports Ex.P.15 Loss Voucher Ex.P.16 Marine Cargo claim form Ex.P.17 Letter of Sobragation and SPA Ex.P.18 PIM /25/ Com.O.S.No.601/2023 LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS DW1 G.M.Kumar LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANTS Ex.D1 Board resolution Ex.D2 Reply letter dtd:13.11.2020 given by defendant to the plaintiff to Ex.P.3 Ex.D3 E-mail communications between plaintiff No.1 & defendant (Ink page - 13 to 15) with certificate of 65(b) of IE Act.
LXXXVII ACC & SJ (CCH-88), (Commercial Court) Bengaluru.