Bangalore District Court
M/S.Vikram Traders vs M/S.Supreme Transport Solution on 24 January, 2019
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 24th day of JANUARY, 2019.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.1482/2016
Plaintiffs :1 M/s.Vikram Traders
(A Unit of Sri.Krishna Spg & Wvg
Mills Pvt.Ltd)
Bengaluru- 560 061
Represented by Power
Agent/Subrogee
The Oriental Insurance Co.Ltd.,
Rep.by Smt.Geetha Santhasheela
Aged about; 52 years
2 The Oriental Insurance Co.Ltd.,
Service Vertical Centre
No.115, second floor,
Prakasam Salai, Broadway,
Chennai- 600 108
Rep.by Authorised signatory
Smt.Shanthasheela
Aged about 52 years
(By Sri.P.S.Ranganathan-Advocate.)
2 O.S.NO.1482/2016
AND:
Defendant: M/s.Supreme Transport Solution
Pvt.Ltd.,
Registered Office No.16,
Hirabhai Market
Kankaria Road,
Ahmedabad,
Gujarat- 380 022
Rep.by its Manager
(By Sri. M.Narayana Swamy-
Advocate)
*****
i) Date of Institution of 15.02.2016
the suit.
ii) Nature of the suit. Damages and
Compensation
iii) Date of
commencement of 02.12.20176
recording of evidence.
iv) Date on which the 24.01.2019
judgment was
pronounced.
v) Total Duration Year/s Month Day
/s s
02 10 09
3 O.S.NO.1482/2016
JUDGMENT
This is a suit for recovery of Rs.7,88,564/- with interest @ 12% p.a. from the date of suit till its realization.
2. The plaintiff pleaded that plaintiff No.2 is a Public Limited Company carrying on business of General Insurance and carrying on business at New Delhi and other places. Plaintiff No.1 is a Private Limited Company incorporated under the Companies Act having their business at Bengaluru represented by their Power Agent/Subrogee. It is averred that plaintiff No.1 in the course of its business dispatched their Consignment of 122 Rolls of Fabric from Subramanyapura, Bengaluru to different Consignees i.e., M/s.Jain Trading Gandhi Nagar, Delhi, M/s. Ruchi Textile, Gandhi Nagar, Delhi, M/s.Berry Cotts Pvt.Ltd., M/s.Suman Textile, Gandhi Nagar, Delhi, M/s.Gayathri Apparels, Gandhi Nagar, Delhi as per Invoice bearing No. 10896/12-13 dated 08.02.2013 value of Rs.2,24,867/- Invoice No.10967/12-13 dated 09.02.2013 value of Rs.2,25,412/-, Invoice No.10897/12-13 dated 4 O.S.NO.1482/2016 08.02.2013 value of Rs.2,21,379/-, Invoice No.10940/12-13 dated 08.02.2013 value of Rs.7,99,025/-, Invoice No.10966/12-13 dated 09.02.2013 value of Rs.2,17,673/-, Invoice No.10978/121-13 dated 09.02.2013 value of Rs.1,23,088, Invoice No.11013/12-13 dated 11.02.2013 value of Rs.3,92,684/-. The plaintiff averred that all the Consignments were entrusted with defendant Carrier from Bengaluru to different Consignees office at Delhi. The defendant in acknowledgment of entrustment in good order and condition issued their Lorry Receipt bearing No.631695, 635951, 631696, 635952, 635953 dated 09.02.2013, Receipt No.635957, 63956 dated 12.02.2013 undertaking to care for carry and deliver the suit consignment in the same good order and condition. The plaintiffs averred that the consignment were insured with 2nd plaintiff under Marine Cargo Open Policy No.411100 /21/2013/460/0002 It is alleged that the defendant contrary to undertaking given, delivered the consignment short and in a damaged condition and short at destination on 19.02.2013. When damage 5 O.S.NO.1482/2016 and short of consignment came to the notice, the plaintiff No.1 informed about the damage and short to the Insurer i.e., plaintiff No.2. The plaintiff averred that plaintiffNo.2 deputed one person for Survey, loss assessing. The said person submitted Preliminary survey report on 28.02.2013. Thereafter, plaintiff No.2 appointed its Engineer, Insurance Surveyor, Loss Assessor, Valuer, who conducted detailed survey and issued Final Survey Report on 15.07.2013. It is averred that plaintiff No.1 being owner of suit consignment issued statutory notice of loss to the defendant on 24.05.2013 informing about loss sustained and called upon the defendant to settle the claim. The notice served on the defendant. The defendant issued Open Delivery Certificate on 23.02.2013 and 23.03.3013, admitting the short and damage to the goods and value of the loss. The plaintiff averred that the value of short and damaged goods/consignment, it has suffered pecuniary loss of Rs.7,88,564/-. It is averred that short and damaged delivery of consignment, consequent pecuniary loss has been caused as a result of negligence, lack of care and caution on the part of defendant. The loss 6 O.S.NO.1482/2016 suffered by plaintiff is due to failure on the part of the defendant to take care of it. It is further pleaded that plaintiff No.1 has submitted claim bill with claim form to plaintiff No.2 on 12.06.2013 as per terms and conditions of the policy. The plaintiff No.2 settled the claim by paying a sum of Rs.7,88,564/- as per Discharge Voucher dated 22.01.2013. Being the proportionate insured value of the short and damaged consignment including other expenses incurred like survey fee etc., The plaintiff pleaded that on being indemnified by plaintiff No.2, plaintiff No.1 executed a Letter of Subrogation and Special Power of Attorney on 28.09.2013 in favour of plaintiff No.2. The plaintiff No.2 is entitled to file and maintain the suit under the Letter of Subrogation and Special Power of Attorney by virtue of section 79 of Marine Insurance Act. The plaintiff averred that upon Letter of Subrogation and Power of Attorney, plaintiff entrusted all the claim papers to their recovery agent M/s.VNC Claims Consultancy, who sent a claim letter to defendant calling upon it to compensate the loss on 08.01.2014. The Letter served on the defendant. After service of notice, 7 O.S.NO.1482/2016 several reminders were issued to defendant. The defendant sent reply on 12.02.2014, 24.02.2014, 07.11.2014, but it did not come forward to settle amicably the legitimate claim of plaintiff. The plaintiff contended that the defendant is liable to pay interest on the claim amount @ 12% p.a. Under these circumstances, the plaintiff filed the present suit.
3. In pursuance of summons, defendant put appearance through counsel. Inspite of sufficient opportunities given, the defendant failed to submit written statement.
4. To prove and substantiate the contentions, the Asst.Manager of plaintiff No.2 examined as PW.1and got marked in all 46 documents at Exs.P1 to Ex.P46.
5. Heard the arguments.
6. Perused the pleadings, evidence of oral and documents and other materials. The points that arisen for consideration of this Court are:
1. Whether the plaintiffs have proved that the short and damage of the consignment 8 O.S.NO.1482/2016 entrusted to defendant was due to negligence on the part of the defendant?
2. Whether the plaintiffs prove that due to negligence of defendant, they have suffered loss of Rs.7,88,564/-?
3. Whether the plaintiffs are entitled for the relief claimed?
4. What Order or Decree?
7. The above points are answered for reasons, findings given in the foregoing discussions as:
REASONS
8. POINT No.1 to 3:- It is the case of the plaintiffs that plaintiff No.1 is a Private Limited Company, doing business of Fabric supply. Plaintiff No.2 is Insurer of the goods of plaintiff No.1. It is contended that plaintiffs dispatched 122 Rolls of Fabric amounting to Rs.2,204,128/- from Bengaluru to different Consignees at Delhi through Invoices on 08.02.2013, 09.02.2013 with defendant. The plaintiff No.1 insured the consignments with plaintiff No.2. The defendant in acknowledgment of entrustment in good order and condition, issued lorry receipt on 09.02.2013 and 12.02.2013 undertaking to care for 9 O.S.NO.1482/2016 carry and deliver the consignment in the same good order and condition. The defendant contrary to the undertaken given delivered the consignment short and in a damaged condition at the destination on 19.02.2013. When it comes to the knowledge, 1st plaintiff informed about the damage and short to the 2nd plaintiff, who deputed the Surveyor, Loss Assessor, Investigator, Valuer to asses the nature and extent of loss. Further, the plaintiff No.2 also appointed Engineer cum Surveyor, Assessor, Valuer for submitting detailed Survey Report. After conducting investigation and survey, Report has been submitted by the Surveyor to plaintiff No.2. After getting the Survey Report, plaintiff No.1 issued a statutory notice of loss to defendant informing about the loss sustained and defendant to settle the claim. Notice served on the defendant. The defendant issued their Open Delivery Certificate on 23.02.2013 and 23.03.2013 admitting the short and damaged delivery and value of the loss also. The plaintiff contended that the short and damaged delivery of the consignments by defendants, it has suffered pecuniary loss of Rs.7,88,564/- being the 10 O.S.NO.1482/2016 proportionate insured value of the consignment damaged. The plaintiff No.1 further contended that the short and damages caused to the consignment was due to negligence, as a result of misfeasance, malfeasance on the part of defendant. The plaintiff further contended that it has submitted claim bill with claim form to the plaintiff No.2 on 12.06.2013 as per terms and conditions of the policy. The plaintiff No.2 settled the claim of plaintiff No.1 by paying a sum of Rs.7,88,564/- vide their discharge voucher dated 22.01.2013. The plaintiff No.1 further contended that on being indemnified by plaintiff No.2, plaintiff No.1 executed a Letter of Subrogation and Special Power of Attorney on 28.09.2013 in favour of plaintiff No.2. Therefore, plaintiff No.2 is entitled to file and maintain a suit under Letter of Subrogation and Special Power of Attorney by virtue of section 79 of Marine Insurance Act. It is further averred that plaintiffs entrusted all the claim papers to their recovery agent and said agent sent a claim letter on 08.01.2014 to defendant calling upon them to compensate the loss. The Letter served on the defendant, even several reminders to the defendant.
11 O.S.NO.1482/2016The defendant sent a reply on 12.02.2014, 24.02.2014, 07.11.2014, but did not come forward to amicably settle the legitimate claim of plaintiff. Therefore, the plaintiffs constrained to file the suit against the defendant.
9. To prove and substantiate the contention, the Asst.Manager of plaintiff No.2 examined as PW.1 and produced in all 46 documents. The Asst.Manager of plaintiff No.2 has been examined as PW.1.
10. PW.1 filed affidavit in lieu of chief- examination by reiterating the plaint averments. The plaintiff produced lorry receipts (Ex.P2 to Ex.P8), Invoices (Ex.P9 to Ex.P29), Open Delivery Certificates(Ex.P30 & Ex.P31), Letter sent to defendant (Ex.P32), Acknowledgment Card (Ex.P33), Survey Reports (Ex.P35 & Ex.P36), Dispatch voucher (Ex.P37), Claim Form (Ex.P38), Subrogation Letter and Power of Attorney (Ex.P39), Claim Payment Voucher (Ex.P40), Claim Notice dated 08.01.2014 (Ex.P41), Acknowledgment Card (Ex.P42), Letter written by defendant (Ex.P43, Ex.P44 & Ex.P45). Settlement claim sent by defendant (Ex.P46).
12 O.S.NO.1482/201611. The evidence of PW.1 is intact. The defendant though appeared through counsel has not filed written statement and took part in the trial. On going through the documents, it discloses that plaintiff No.1 has sent consignment through defendant to the Consignees' places at Delhi. Further, plaintiff No.1 got insured the consignment with plaintiff No.2. The defendant has sent the consignment through road transport as per lorry receipts. The consignment assigned to defendant for supply to the Consignees at Delhi were not reached the Consignees in a good condition, as it was at the time of dispatch. Further, out of 122 Rolls of Fabrics, some Rolls are short and some Rolls are damaged. The plaintiff No.1 informed about short and damages caused to the consignment to the plaintiff No.2. Further, the documents reveal that the plaintiff No.2 got assessed the short of consignment, damages caused to the consignment and obtained report from the Surveyor. Further, the documents reveal that plaintiff No.1 submitted claim form with plaintiff No.2 as plaintiff No.2 insured the 13 O.S.NO.1482/2016 consignment of plaintiff No.1. On the basis of Survey Report, plaintiff No.2 has settled the claim by way of indemnification amounting to Rs.7,88,564/-. Further, the plaintiff No.1 has executed a Letter of Subrogation and Power of attorney in favour of plaintiff No.2 for recovery of amount from the defendant No.1. The Open Delivery Certificate issued by defendant goes to show that 122 Rolls of Fabrics transported from Bengaluru to Delhi vide consignment dated 09.02.2013 and 12.02.2013 by their vehicle bearing registration No.HR-55-N-2275 met with a road accident at Guna, within the limits of Mayana Police Station, Madhya Pradesh. Due to this Fabric Rolls were damaged and some were missing at the accident spot. Further, the defendant intimated the plaintiffs that the accident was beyond their control. After several correspondence between the plaintiff and defendant, defendant stated through letter (Ex.P46) it is ready to settle claim and offer for the same is 5% of the value. The plaintiff No.1 assigned the goods to defendant for supply of Consignees at Delhi. The goods were insured with plaintiff No.2. In the transit, the vehicle met with an 14 O.S.NO.1482/2016 accident. In the said accident, some consigned goods damaged and some consigned goods were missed. The plaintiff further contended that it is due to negligence on the part of the defendant. The consignment were damaged. It is on the defendant to come with specific defence, how the accident was taken place and how it was not within its control to avoid damage to the consigned goods. As earlier stated, the defendant except putting appearance has not filed written statement and producing the evidence. It is just and proper to place reliance in a case reported in :
ILR 1987 Karnataka In case of Basavarj Yellappa Pundi -Vs- National Insurance Company Limited. In this case, it is held that " In the absence of any convincing and clinching evidence on behalf of the defendant that accident was not due to his negligence, but it was due to an act of God, it is held that defendant failed to establish the burden placed on him in this regard. In the present case also in the Open Delivery Certificate, (Ex.P30), defendants stated that damages and 15 O.S.NO.1482/2016 missing of Fabrics was due to road accident and beyond our control. Simply stating this, is not sufficient to hold that the accident was due to negligence on the part of the driver of the vehicle in which the consigned goods were transported.
12. The plaintiff No.1 insured the goods consigned with plaintiff No.2. After short and damages to the consigned goods, plaintiff No.1 submitted claim form to settle the damages and short to the plaintiff No.2. The plaintiff No.2 basing on the Survey Report (Ex.P35 & Ex.P36) indemnified the loss caused to the extent of Rs.7,88,564/- (Ex.P37 & Ex.P38). In pursuance to indemnification by plaintiff No.2, the plaintiff No.1 has executed Letter of Subrogation and Special Power of Attorney (Ex.P.39) authorizing plaintiff No.2 to file suit against the defendant. The plaintiff No.2 on the strength of Subrogation Letter and Power of attorney has got issued notice to defendant No.1 claiming Rs.7,88,564/- (Ex.P41). The defendant No.1 has not paid the claimed amount. The plaintiffs by getting Survey Report from Engineer, Valuer about short and damages to the consigned goods dispatched 16 O.S.NO.1482/2016 through defendant to the Consignees at various places of Delhi. The Survey Report is not questioned by defendant in this case. There is no material on the part of the defendant to disbelieve the Survey Report. Further, plaintiff No.2 being Insurer of the consigned goods has discharged its liability of indemnifying the liability of insured. The defendant No.1 has undertaken prompt delivery of the consigned goods to the Consignees. The goods consigned with defendant No.1 were damaged and several Rolls of Fabrics were missed. Though the defendant No.1 stated that it is beyond the control, the accident took place and resulted in short and damage of consigned goods. The defendant No.1 has not placed any acceptable and reliable material in this regard. Therefore, this court finds that whatever the short and damages to the consigned goods assessed by the Surveyor appointed by plaintiff No.2 is to be accepted is correct. As the plaintiff No.2 has indemnified the insured i.e., plaintiff No.1 is entitled to recover the same from the defendant. The defendant is liable to pay the amount indemnified by the plaintiff No.2. Inspite of request and reminders made to defendant 17 O.S.NO.1482/2016 No.1 for paying the claim amount, the defendant has not paid it. Therefore, the plaintiff No.2 is entitled for interest on the claimed amount. Therefore, for these reasons, this court answered point No.1 to 3 in the Affirmative.
13. POINT No.4 :- In the result, this court proceeds to pass the following:
ORDER Suit is decreed with costs.
Plaintiff No.2 is entitled to recover Rs.7,88,564/- with interest @ 12% p.a. from the date of suit till its realization from defendant.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 24th day of January, 2019).
(RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions judge, Bengaluru.
18 O.S.NO.1482/2016 ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF: PW.1 -Mrs.Komala Dinesh DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF: Ex.P.1 Authorization letter Ex.P.2 to 8 Lorry receipts Ex.P.9 to Invoices 29 Ex.P.30 & Open Delivery Certificate 31 Ex.P.32 Letter of plaintiff No.1 Ex.P33 Acknowledgment Ex.P.34 Postal receipt Ex.P.35 & Survey reports dated 28.02.2013 & 36 15.07.2013 Ex.P.37 Discharge voucher Ex.P.38 Marine Insurance Transit Claim Ex.P.39 Letter of subrogation and Special Power of Attorneh Ex.P.40 Claim payment voucher Ex.P.41 Notice dated 08.01.2014 Ex.P.42 Acknowledgment card Ex.P.43 Letter dated 12.02.2014 by defendant Ex.P.44 Office Memo dated 24.02.2014 Ex.P.45 Letter dated 24.02.2014 by defendant Ex.P.46 Letter dated 07.11.2014 19 O.S.NO.1482/2016 WITNESSES EXAMINED ON BEHALF OF DEFENDANT: -Nil- DOCUMENTS PRODUCED ON BEHALF OF DEFENDANT: -Nil- (RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions judge, Bengaluru.
20 O.S.NO.1482/2016
24.01.2019
P - PSR
D -MNS (Judgment pronounced in the
For Judgment. open Court vide separate order.) ORDER Suit is decreed with costs.
Plaintiff No.2 is entitled to recover Rs.7,88,564/-
with interest @ 12% p.a.
from the date of suit till its
realization from defendant.
Draw decree accordingly
XL.ACC & SJ
Bengaluru.