Bangalore District Court
M/S. Bosch Ltd vs M/S. Om Logistics Ltd on 2 January, 2020
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 2nd day of January 2020
PRESENT
************
Sri B. B. Jakati, B.A., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
O.S.No.7675/2017
PLAINTIFF: 1. M/s. Bosch Ltd.,
Hosur Road, Adugodi,
Bengaluru - 560 030.
M/s. United India Insurance Co.Ltd.,
Divisional Office III,
No.93, First floor,
TKN Mansions, K.H. Road,
Bengaluru - 560 027.
Rep.by their Divisional Manager.
2. M/s. United India Insurance
Company Ltd.,
Divisional Office III,
No.93, First floor,
TKN Mansions, K.H. Road,
Bengaluru - 560 027.
Rep.by their Divisional Manager.
(By Sri P.S. Ranganathan, Advocate)
V/s.
DEFENDANT: M/s. Om Logistics Ltd.,
No.11, 9th cross, H. Siddaiah road,
Bengaluru - 560 027.
(By Sri P.G.R., Advocate)
2
O.S.No.7675/2017
Date of institution of the : 13.11.2017
suit
Nature of the suit : Money Suit
Date of commencement of : 23.10.2018
recording of the evidence
Date on which the : 02.01.2020
Judgment was pronounced
: Year/s Month/s Day/s
Total duration
02 01 20
(B.B. Jakati)
LIX ACC & SJ
B'LORE.
JUDGMENT
The plaintiffs have filed this suit for recovery of a sum of Rs. 19,74,691/- from the defendant along with interest @ 12% per annum towards damages.
2. The case of the plaintiffs in brief is that, both are Limited Companies. Plaintiff No.1 is carrying on business of selling High Pressure Pump, Feed Pump and other Diesel Engine Parts and whereas the plaintiff No.2 is a General Insurance Company. The defendant is a Private Limited Company engaged in carrying business. 3
O.S.No.7675/2017 The plaintiff No.1 consigned the goods for transport from Bengaluru to Jamshedpur under Invoices No.292262246 dated 10.11.2014 valued at Rs.2,12,074.32, No.291374766 dated 11.11.2014 valued at Rs.9,38,402.70, No.29137467 dated 11.11.2004 valued at Rs.8,74,848.05, No.292262492 and No.262262493, both dated 12.11.2014 and valued at Rs.2,12,074.32. Accordingly, the defendant has issued consignment notes bearing Nos.12591674 dated 10.11.2014, No.12550075, No.12550076 both dated 11.11.2014, No.12591697, 12591698 both dated 12.11.2014. The plaintiff No.1 insured the consignments with plaintiff No.2 under Insurance policy No.070300/21/13/02/00000038. The defendant was transporting the consignment from Bengaluru to Jamshedpur and in the transit damage has been caused to such consignments. The plaintiff No.1 issued statutory notice on 29.11.2014 to the defendant asking the damages caused to the goods. The defendant 4 O.S.No.7675/2017 issued certificates bearing Nos.29101, 29102, 29103 and 29104 dated 29.11.2014 admitting the damage caused to the goods of plaintiff No.1. The plaintiffs appointed Mr. G.C. Sahu, Surveyor and Loss Assessor to assess the damage caused to the consignment and he has given his report on 18.05.2015. According to such report, cost of total damage was Rs.19,74,691/-. The plaintiffs have alleged that the damage has been caused to the consignment due to negligence, lack of care on the part of the defendant coupled with misfeasance, malfeasance or nonfeasance. Therefore, the defendant is liable to pay the damages. The plaintiff No.2 / insurer paid the damages to the plaintiff No.1. Therefore, the plaintiff No.2 is entitled to get such compensation / damages from the defendant under the principles of subrogation. Accordingly, the plaintiff No.2 appointed Recovery Agent by name M/s. VNC Claims Consultancy and the said Agent sent the claim to the 5 O.S.No.7675/2017 defendant on 16.12.2015 and whereas the defendant not paid the damages and hence, this suit.
3. After service of summons the defendant appeared through counsel and filed the written- statement. The defendant denied the entire allegation of the plaintiffs and interalia contended that he was undertaking transportation of goods in two types. One is on the owner's risk and other one was on carrier's risk. The plaintiff No.1 consigned the goods for carrier on owner's risk without paying extra premium. Therefore, when the damage is caused to the consignment of the plaintiff No.1, the plaintiff No.1 is required to meet out the damages and not the defendant, who is the carrier. It has been further contended that the suit of the plaintiffs is hit by Section 16 of the Carriage by Road Act as no valid notice was served upon him. On these main grounds, the defendant prayed to dismiss the suit of the plaintiffs. 6
O.S.No.7675/2017
4. On the rival pleadings of the parties, the following issues have been framed :
1. Whether the plaintiff No.1 Company proves that it has consigned various goods worth of Rs.24,49,473.08/- under invoices dated:10.11.2014, 11.11.2014 and 12.11.2014 to defendant for transportation from Bengaluru to Jemshedpur?
2. Whether plaintiffs further prove that because of negligence of defendant, such goods have been damaged and thereby first plaintiff sustained loss of Rs.19,74,691/-?
3. Whether the plaintiff No.2 is entitled for damages from the defendant under the doctrine of subrogation?
4. Whether suit is hit by section 16 of Carriage by Road Act?
5. Whether the court fee paid is insufficient?7
O.S.No.7675/2017
6. Whether the plaintiffs are entitled for damages from the defendant?
7. Whether the plaintiffs are entitled for interest on the damages?
5. To prove the claim of the plaintiffs, the Administrative Officer of the 2nd plaintiff is examined as P.W.1 and got marked the documents at Ex.P.1 to P.18. On behalf of defendant, the authorized representative of the defendant Company is examined as DW.1 and got marked documents at Ex.D.1 to D.3.
6. The learned counsel for the plaintiffs and defendant filed their written arguments. The plaintiff in the written argument has submitted that the defendant has not proved that the damage was caused to the goods due to act of God or beyond his control and therefore, the defendant is liable to answer the damage caused to the consignment. The plaintiff No.2 is entitled to get the compensation from the defendant under the 8 O.S.No.7675/2017 principles of subrogation and the defendant cannot question such subrogation. He has submitted that notice was given to the defendant prior to institution of the suit and therefore, the defendant is liable to answer the claim of the plaintiffs and accordingly, prayed to decree the suit. In support of his argument he placed reliance on the decisions reported in (1) 2010 4 SCC 114 {Economic Transport Organization V/s. M/s. Charan Spinning Mills (P) Ltd. And Anr.}; (2) (2005) 5 Kar.L.J. 388 {Basavaraj Yellappa Pundi V/s. Natonal Insurance Company Limited, Belgaum} ; (3) 2004 (4) CTC 273 {Patel Roadways V/s. Seshasayee Industries Pvt.Ltd.} (4) (2000) 2 LW 770 {Ravichandran Transports V/s. United India Ins. Company Ltd.} and (5) (2004) 3 MLJ 306 {Bond Food Products V/s. Planters Airways.
7. The defendant in the written argument has submitted that plaintiff No.1 consigned the goods for transportation under owner's risk and when the damage is caused to the goods, the plaintiff No.1 alone is responsible 9 O.S.No.7675/2017 and not the defendant. On these main grounds, the defendant prayed to dismiss the suit.
8. My findings to the above Issues are as under :
Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : In the Affirmative Issue No.4 : In the Negative Issue No.5 : In the Negative Issue Nos.6 & 7 : In the Affirmative for the following:
REASONS
9. ISSUE NO.1 : - The plaintiffs have categorically pleaded in Para No.3 that under the Invoices bearing Nos.292262246, 291374766, 29137467, 292262492 and 262262493, goods were consigned to the defendant for transportation from Bengaluru to Jamshedpur. The defendant in the written-statement though principally admitted 10 O.S.No.7675/2017 consignment but generally denied such transportation and consignment. Therefore, plaintiffs produced invoices including the lorry bills issued by the defendant at Ex.P.2 to P.7. These documents show that the plaintiff No.1 consigned the goods to the defendant for carrier from Bengaluru to Jamshedpur on various dates shown in the invoices. These invoices and lorry bills are admitted by the defendant in the Cross-examination. The PW.1 has spoken about consignment under the records at Ex.P.2 to Ex.P.7. Such evidence of PW.1 is not questioned by the defendant. Therefore, I hold that Ex.P.2 to P.7 and the evidence of PW.1 including the admission of defendant is sufficient to answer this issue in favour of the plaintiffs. Accordingly, I hold that totally five consignment under note bearing Nos.12591674 dated 10.11.2014, No.12550075, No.12550076 both dated 11.11.2014, No.12591697, 12591698 both dated 12.11.2014 under five Invoices bearing Nos.292262246, 291374766, 29137467, 11 O.S.No.7675/2017 292262492 and 262262493, the plaintiff No.1 handed over the goods to the defendant for transportation from Bengaluru to Jamshedpur. Hence, I answer this Issue in the Affirmative.
10. ISSUE No.2 :- The plaintiffs in Para No.7 of plaint, have pleaded that due to negligence, lack of care on the part of the defendant coupled with misfeasance, malfeasance or nonfeasance on the part of the defendant there was damage to the consignment of the plaintiff No.1. These allegations are denied by the defendant in the written-statement. The PW.1 in his examination-in-chief in Para No.5 has stated that the defendant not delivered the consignment to the consignee in proper condition and he has delivered the consignments in damaged conditions due to alleged accident enroute and committed breach of statutory obligation. The defendant in the Cross-examination of PW.1 not made any suggestion that there was no negligence or misfeasance on his part for causing 12 O.S.No.7675/2017 damage to the goods. The D.W.1 in his examination-in- chief also not stated that there was no negligence on his part in causing damage to the consignment of the plaintiff No.1. On the other hand, the D.W.1 in his Cross-examination has admitted that goods shown in the invoices at Ex.P.1 to Ex.P.7 were delivered in damaged conditions.
11. The plaintiffs have produced certificate of facts issued by the defendant at Ex.P.9 to P.12. In these certificates the defendant has admitted that consignment under the Invoice Nos. 292262246, 292262493, 291374767 and 291374766 were damaged in transit and the goods were delivered to the consignee in damaged conditions. The defendant in writing in Ex.P.9 to P.12 admitted the damage caused to the consignment shown in various invoices. The defendant by issuing Ex.P.9 to P.12 admitted the damage caused to the consignment of the plaintiff No.1. Therefore, I hold that the plaintiffs have 13 O.S.No.7675/2017 established that the goods entrusted to the defendant for carrier were damaged by the defendant while transportation and he has delivered the goods to the consignee in damaged conditions.
12. The plaintiffs have stated that due to negligence of defendant there was damage to the goods, which has been denied by the defendant. Therefore, whether there was negligence on the part of the defendant is to be seen. Both parties have admitted that vehicle of the defendant which was transporting the consignment of plaintiff No.1 met with accident and because of such accident the goods were damaged. There is oral evidence about the damage caused to the consignment and based on such oral evidence, on whose negligence the damage was caused is to be ascertained. In order to decide this question of fact, it is necessary to quote Section 9 of Carriers Act, 1865, which reads as under:
14
O.S.No.7675/2017 "Plaintiffs, in suits for loss, damage, or non-delivery, not required to prove negligence or criminal act.--In any suit brought against a common carrier for the loss, damage or non-delivery of 4[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."
13. The Hon'ble Supreme Court in the decision reported in 2010(4) SCC 114 in Para No.27 held as under:
"It is no doubt true that Section 14(1)
(d) of the Act contemplates award of compensation to the consumer for any loss suffered by consumer due to the negligence of the opposite party (Carrier).
Section 9 of Carriers Act does not lay down a preposition that a carrier will be liable even if there was no negligence on its part. On the other hand, it merely raises a 15 O.S.No.7675/2017 presumption that when there is loss or damage or non-delivery of goods entrusted to a carrier, such loss, damage or non- delivery was due to the negligence of the carrier, its servant and agents. Thus where the consignor establishes loss or damage or non- delivery of goods, it is deemed that negligence on the part of the carrier is established. The carrier may avoid liability if it establishes that the loss, damage or non- delivery was due to an act of God or circumstances beyond its control. Section 14(1)(d) of the Act does not operate to relieve the carrier against the presumption of negligence created under Section 9 of the Carriers Act.
14. In view of the principles laid down by the Hon'ble Supreme Court and Section 9 of Carriers Act, 1865, the initial presumption is to be raised in favour of the plaintiffs that the goods were damaged because of negligence on the part of the defendant and such presumption is rebuttable. The defendant is required to 16 O.S.No.7675/2017 rebut the presumption by showing that there was no negligence on his part for causing damage and he has to show that damage was caused due to act of God or circumstances beyond his control. In the present case the defendant in the written-statement not taken the defence that damages caused to the goods was an act of God or the circumstances beyond his control. Even the D.W.1 in his examination-in-chief has not stated that the goods were damaged because of act of God or circumstances beyond his control. Therefore, it is not the defence of the defendant that goods of the plaintiff No.1 damaged due to act of God or circumstances beyond his control. The defendant not taken any defence to rebut the presumption available under Section 9 of the above said Act. On the other hand, the plaintiffs have stated that the damage was caused due to negligence of the defendant. When there is no rebuttal evidence, the presumption is to be raised in favour of the plaintiff and based on such presumption 17 O.S.No.7675/2017 and the evidence on record I hold that the goods of the plaintiff No.1 were damaged due to negligence of the defendant.
15. To prove the quantum of negligence the plaintiffs produced Marine Survey Report at Ex.P.13 issued by G.C. Shu dated 18.05.2015. The plaintiffs have stated that G.C. Sahu is expert. The defendant not disputed the opinion of the expert at Ex.P.13. Even the defendant not taken any steps to assess the damages caused to the goods of the plaintiff No.1 at the time of delivery to the consignee. On the other hand, the defendant has admitted the damage as reported in Ex.P.13, which has been spoken by PW.1. Apart from that the plaintiff No.2 accepted the report at Ex.P.13 and paid an amount of Rs.19,74,691/- towards damages to the plaintiff No.1. The plaintiff No.2 is the insurer and the plaintiff No.1 is the insured of the goods, there is no interest in between the plaintiffs and malafide intention to cause loss to the defendant. 18
O.S.No.7675/2017 Therefore, the payment for damages by the plaintiff No.2 also supports the claim of plaintiff No.1 that the damage was to the extent of Rs.19,74,691/-. Based on such evidence, I answer this Issue in the Affirmative.
16. ISSUE No.4 :- In order to decide this Issue Section 10 of Carriers Act, 1865 and Section 16 of the Carriage by Road Act, 2007 are relevant. Those provisions of law are reproduced herein:
Section 10 of Carriers Act, 1865 :
"No suit shall be instituted against a common carrier for the loss of, or injury to 1[goods including container, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff."19
O.S.No.7675/2017 Section 16 in the Carriage by Road Act, 2007:
"Notice for institution of a suit. No suit or other legal proceeding shall be instituted against a common carrier for any loss of, or damage to, the consignment, unless notice in writing of the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceeding and within one hundred and eighty days from the date of booking of the consignment by the consignor."
17. Both provisions of law mandates that the consignor is required to issue prior notice to the carrier before institution of suit. Section 16 of Carriage by road Act provides that such notice is to be issued within hundred and eighty days from the date of booking of the consignment by the consignor.
18. In the present case the goods were consigned on 10.11.2014, 11.11.2014 and 12.11.2014. They were damaged during the transit. The plaintiffs have produced the copy of the notice at Ex.P.8 and this 20 O.S.No.7675/2017 notice was issued on 29.11.2014. This notice was sent to the defendant by the plaintiff No.1. The plaintiff No.1 is the consignor of the goods and the defendant is the transporter. The defendant has acknowledged the receipt of this notice by putting seal and signature on Ex.P.8. The D.W.1 in his Cross-examination has categorically admitted the receipt of notice at Ex.P.8. In Ex.P.8 the plaintiff No.1 informed the defendant the invoices in which the goods were consigned and damage caused to such consignment in the accident and estimated value was shown as Rs.25,71,946/-. The plaintiff No.1 called the defendant to settle the damages caused to the goods. Therefore, the notice at Ex.P.8 is in compliance of Section 9 of Carriers Act, 1865 and Section 16 of Carriage by Road Act, 2007. Therefore, I hold that before filing of the suit on 13.11.2017, the plaintiff No.1 issued prior notice at Ex.P.8 and thereby complied the above said provisions of law. Hence, I hold that the suit is not hit by Section 21 O.S.No.7675/2017 16 of Carriage by Road Act, 2007 by answering this Issue in the Negative.
19. ISSUE No.5 :- The plaintiffs have claimed an amount of Rs.19,74,691/- along with interest from the defendant. On such claim the plaintiffs have paid court fee under Section 21 of Karnataka Court Fee and Suits Valuation Act. The defendant not pleaded and even not shown how the court fee paid by the plaintiffs is in- sufficient. Looking to the amount claimed in the suit and the court fee paid by the plaintiffs, I hold that the court fee is proper. Hence, I answer this Issue in the Negative.
20. ISSUE No.3 & 6 :- The plaintiffs have established that the plaintiff No.1 consigned the goods to the defendant for transportation and due to negligence of defendant the goods were damaged and goods were delivered to the consignee in damaged condition. The value of the damage is Rs.18,73,425/- 22
O.S.No.7675/2017 as per Ex.P.13 the plaintiff No.1 added some more damages which is permissible and the total damage was for Rs.19,74,691/-. The value of damage caused to the goods of the plaintiff No.1 is proved. The plaintiff No.1 claimed such damage from the insurer, who is plaintiff No.2 and the insurer has indemnified the claim of plaintiff No.1, which can be seen from the statement of intimation voucher at Ex.P.15 and admission given by the plaintiff No.1. It is not in dispute that claim of plaintiff No.1 / insured has been indemnified by the plaintiff No.2 / insurer before institution of the suit.
21. The plaintiffs claimed that the defendant being the wrong doer is liable to pay the damages and this allegation has been denied by the defendant on he sole contention that the consignments were on the owner's risk and not on the risk of carrier. Therefore, who is responsible to pay the damages is to be looked into. The defendant has produced transport contract dated 07.04.2014 entered into between himself and the 23 O.S.No.7675/2017 plaintiff No.1 at Ex.D.2. In Clause-9 there is description of insurance and liability for loss to the goods. In Clause No.9.1 it has been stated that the defendant has to insure all its valuable shipments at its own cost. It further provides that in case of damage to the consignment, at the request of the defendant, it has to issue damage certificate that sole purpose of enabling the defendant to lodge insurance claim with its insurance Company. It further provides that the defendant Company is liable to pay damages up to Rs.30,000/- only. These clauses in the agreement show that defendant was required to insure the shipment with insurer and any loss is to be claimed through insurer of the defendant.
22. Clause No.9.4 provides as under:
"Bosch will deduct loss on account of the following contingencies directly from the LSP ;
24
O.S.No.7675/2017
All losses up to Rs.30,000/- per
consignment;
Partial settlement due to late
submission or improper documentation,
salvage deduction etc., ;
All loss during transit except due to fire/hijack/vehicle accident, theft and burglary ;
Non protection of recovery rights of Bosch against third parties;
All losses arising from the gross
negligence of the LSP or their
agents/employees etc."
23. According to this Clause also the defendant is liable to pay maximum loss of Rs.30,000/-. It specifically stipulates that the defendant is liable to all losses arising for his gross negligence or negligence of his agent or the employee. So, the agreement relied upon by the defendant itself indicate that in case of any 25 O.S.No.7675/2017 damage to the consignment, the defendant is liable to meet out such loss. Therefore, Ex.D.2 falsifies the contention taken by the defendant regarding his liability. The maximum capacity of Rs.30,000/- shown in Ex.D.2 will not come in the way of the plaintiff No.1 to seek the damages more than Rs.30,000/- from the defendant if there is any real damage to that extent. Therefore, I hold that the defendant under Ex.D.2 is liable to pay the damages to the plaintiff No.1 for the loss caused to the consignment. Apart from that since the goods were damages because of negligence of defendant, the defendant is liable to pay the damages to the plaintiff No.1. Such damage is already quantified at Rs.19,74,671/-.
24. The plaintiff No.2/insurer of the plaintiff No.1, already paid the damages to the plaintiff No.1. The plaintiff No.1 executed the letter of subrogation and special power of attorney on 17.06.2015 produced at Ex.P.14. The execution of Ex.P.14 is not in dispute. 26
O.S.No.7675/2017 Under Ex.P.14 the plaintiff No.1 assigned all his rights and liabilities with the defendant for transportation of consignment which was damaged in favour of plaintiff No.2 and authorized plaintiff No.2 to claim the damages paid by him from the defendant. This authorization and subrogation has been disputed by the defendant on the ground that he is not party to such contract and therefore, he is not answerable to the claim of plaintiff No.2. This contention of the defendant is not sustainable under law for the reasons stated hereinafter.
25. The entire claim of plaintiff No.2 is on the principles of subrogation. The Hon'ble Supreme Court in the decision reported in 2010(4) SCC 114 explained the meaning of subrogation in Para No.11 and 14 which reads as under:
11. A contract of insurance is a contract of indemnity. The loss/damage to the goods covered by a policy of insurance, may be 27 O.S.No.7675/2017 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 on account of an act of God) or due to a wrongful act of a third party, for which he may have a remedy against such 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 insurance, the law of insurance recognizes as an equitable corollary of the principle of indemnity that the rights and remedies of the assured against the wrong-doer stand transferred to and vested in the insurer. The equitable assignment of the rights and 28 O.S.No.7675/2017 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 :
(a) No tort-feasor should escape liability for his wrong;
(b) 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 enforce the rights and remedies available to the assured.
14. Subrogation, as an equitable assignment, is inherent, incidental and collateral to a contract of indemnity, which occurs automatically, when the insurer settles the claim under the policy, by reimbursing the entire loss suffered by the assured. It need not be evidenced by any writing. But where the insurer does not settle the claim of the assured fully, by reimbursing the entire loss, there will be no equitable assignment of the claim enabling 29 O.S.No.7675/2017 the insurer to stand in the shoes of the assured, but only a right to recover from the assured, any amount remaining out of the compensation recovered by the assured from the wrongdoer, after the assured fully recovers his loss. To avoid any dispute with the assured as to the right of subrogation and extent of its rights, the insurers usually reduce the terms of subrogation into writing in the form of a Letter of Subrogation which enables and authorizes the insurer to recover the amount settled and paid by the insurer, from the third party wrong-doer as a Subrogee-cum- Attorney. When the insurer obtains an instrument from the assured on settlement of the claim, whether it will be a deed of subrogation, or subrogation-cum- assignment, would depend upon the intention of parties as evidenced by the wording of the document. The title or caption of the document, by itself, may not be conclusive. It is possible that the document may be styled as `subrogation' but may contain in addition an assignment in regard to the balance of the claim, in 30 O.S.No.7675/2017 which event it will be a deed of subrogation- cum-assignment. It may be a pure and simple subrogation but may inadvertently or by way of excessive caution use words more appropriate to an assignment. If the terms clearly show that the intention was to have only a subrogation, use of the words "assign, transfer and abandon in favour of"
would in the context be construed as referring to subrogation and nothing more.
26. In the present case there was a contract of insurance between plaintiff No.1 and 2 and as per such contract the plaintiff No.2 has indemnified the plaintiff No.1 by paying an amount of Rs.19,74,691/-. The goods were damaged because of negligence of defendant and therefore, the plaintiff No.1 had right to sue the defendant, who is the wrong doer and such right has been assigned by the plaintiff No.1 in favour of the plaintiff No.2. Therefore, the principles of subrogation is applicable to the case in hand. The plaintiff No.1 being the Subrogee is entitled to seek the 31 O.S.No.7675/2017 remedy against the defendant under the doctrine of subrogation.
27. The Hon'ble Supreme Court in the same decision has discussed the fact of subrogation evidenced by an instrument in Para No.15.2, which reads as under:
15.2) In the second category, the subrogation is evidenced by an instrument. To avoid any dispute about the right to claim reimbursement, or to settle the priority of inter-se claims or to confirm the quantum of reimbursement in pursuance of the subrogation, and to ensure co-operation by the assured in suing the wrongdoer, the insurer usually obtains a letter of subrogation in writing, specifying its rights vis-`-vis the assured. The letter of subrogation is a contractual arrangement which crystallizes the rights of the insurer vis-`-vis the assignee. On execution of a letter of subrogation, the insurer becomes entitled to recover in terms of it, a sum not exceeding what was paid by it under the 32 O.S.No.7675/2017 contract of insurance by suing in the name of the assured. Even where the insurer had settled only a part of the loss incurred by the assured, on recovery of the claim from the wrongdoer, the insurer may, if the letter of subrogation so authorizes, first appropriate what it had paid to the assured and pay only the balance, if any, to the assured.
28. In the case in hand the plaintiff No.1 executed letter of subrogation and special power of attorney at Ex.P.14 and such document has subrogation through an instrument. Therefore, under Ex.P.14 also the plaintiff No.2 is entitled to claim damages from the defendant.
29. The Hon'ble Supreme Court in Para No.19 held as under:
19. Whether the document executed by the assured in favour of the insurer is a subrogation simpliciter, or a subrogation-
cum-assignment is relevant only in a 33 O.S.No.7675/2017 dispute between the assured and the insurer. It may not be relevant for deciding the maintainability of a complaint under the Act. If the complaint is filed by the assured (who is the consumer), or by the assured represented by the insurer as its attorney holder, or by the assured and the insurer jointly as complainants, the complaint will be maintainable, if the presence of insurer is explained as being a subrogee. Whether the amount claimed is the total loss or only the amount for which the claim was settled would make no difference for the maintainability of the complaint, so long as the consumer is the complainant (either personally or represented by its attorney holder) or is a co-complainant along with his subrogee. On the other hand, if the assured (who is the consumer) is not the complainant, and the insurer alone files the complaint in its own name, the complaint will not be maintainable, as the insurer is not a `consumer', nor a person who answers the definition of `complainant' under the Act. The fact that it seeks to 34 O.S.No.7675/2017 recover from the wrongdoer (service provider) only the amount paid to the assured and not any amount in excess of what was paid to the assured will also not make any difference, if the assured - consignor is not the complainant or co- complainant. The complaint will not be maintainable unless the requirements of the Act are fulfilled. The remedy under the Act being summary in nature, once the consumer is the complainant or is a co- complainant, it will not be necessary for the Consumer Forum to probe the exact nature of relationship between the consumer (assured) and the insurer, in a complaint against the service provider.
30. The subrogation and power of attorney at Ex.P.14 was executed by plaintiff No.1 in favour of plaintiff No.2. Such document is relevant only in a dispute between the insured and the insurer. The defendant is not having authority to question Ex.P.14. Therefore, based on the principles of Hon'ble Supreme 35 O.S.No.7675/2017 Court in Para No.19, I hold that even though the defendant was not party to Ex.P.14, he cannot question his liability or Ex.P.14 to avoid the payment of damages to the plaintiff No.2. Considering these facts and circumstances of the case, I hold that the plaintiff No.2 is entitled to claim damages which was paid to the plaintiff No.1 from the defendant. Hence, the plaintiff No.2 is entitled to get damages of Rs.19,74,691/- from the defendant under doctrine of subrogation. Thus, I answer these Issues in the Affirmative.
31. ISSUE No.7 :- The plaintiffs claimed interest on damages caused to the goods. The damages was caused to the goods on 10.11.2014, 11.11.2014 and 12.11.2014. The notice of demand was issued to the defendant on 29.11.2014. The plaintiff No.2 being the insurer paid the damages to the plaintiff No.1 on 25.01.2015. The transaction between the parties is commercial in nature. Therefore, the plaintiff No.1 is entitled to claim interest on the damages from the date 36 O.S.No.7675/2017 of issuance of notice at Ex.P.18. The same right is accrued to the plaintiff No.2 under the doctrine of subrogation. There is no contract between the parties in respect of damages in writing. Therefore, having regard to the transaction and the loss caused to the plaintiffs, I hold that interest @ 12% p.a. has to be granted from 29.11.2014 till complete realization. Accordingly, I answer this Issue in the Affirmative and proceed to pass the following:
ORDER The suit of the plaintiffs is decreed with costs for a sum of Rs.19,74,691/-.
The plaintiff No.2 is entitled to recover an amount of Rs.19,74,691/- from the defendant along with interest @ 12% per annum from 29.11.2014 till complete realization.
Draw decree accordingly.
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 2nd day of January, 2020].
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.37
O.S.No.7675/2017 ANNEXURE
1. List of witnesses examined on behalf of the Plaintiff:
PW.1 Sri S.K. Chandrasekara Sharma
2. List of witnesses examined on behalf of the Defendant:
DW.1 Sri S. Nagaraj
3. List of documents marked on behalf of the Plaintiff:
Ex.P.1 - Letter of authorization Ex.P.2 to 7 - Invoices with consignment receipts Ex.P.8 - Notice of claim for compensation Ex.P.9 to 12 - Certificate of Facts Ex.P.13 - Marine Survey Report Ex.P.14 - Power of Attorney Ex.P.15 - Settlement Intimation Ex.P.16 - Claim application Ex.P.17 - Postal receipts Ex.P.18 - Postal acknowledgement
4. List of documents marked on behalf of the defendant:
Ex.D.1 - Letter of authorization Ex.D.2 - Transport Contract Ex.D.3 - Sample receipt (B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.38
O.S.No.7675/2017 02.01.2020: Judgment pronounced in the Open Court (Vide separate detailed judgment) ORDER The suit of the plaintiffs is decreed with costs for a sum of Rs.19,74,691/-.
The plaintiff No.2 is
entitled to recover an amount
of Rs.19,74,691/- from the
defendant along with interest
@ 12% per annum from
39
O.S.No.7675/2017
29.11.2014 till complete
realization.
Draw decree accordingly.
(B.B. Jakati)
LIX ACC&SJ : Bengaluru
40
O.S.No.7675/2017