Bangalore District Court
M S Tata Global Beverages Ltd vs Ms Dhtc India Ltd on 31 July, 2024
KABC010006922017
IN THE COURT OF THE LXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT BENGALURU CITY. (CCH-63)
Dated this the 31 st day of July, 2024
PRESENT:
SRI A. EARANNA, M.Com., LL.M.,
LXII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
O.S.No. 6480/2015
Plaintiff : 1. M/s Tata Global Beverages Ltd.,
Kirloskar Business Park,
Block C, 4th Floor, Hebbal, Bangalore,
Karnataka.
Represented by Power agent/Subrogee
M/s. United India Insurance Co.
Ltd., Registered Office,
3rd Floor, N.R.Square, Bangalore-560002.
Represented by Their Assistant Manager
Sri Amith Manu
2. M/s United India Insurance Company Ltd.,
Registered Office, 3rd Floor,
N.R.Square, Bangalore-560002.
Represented by their Assistant Manager
Sri. Amith Manu
(By Sri P.S. Ranganathan. Advocate)
2 O.S.NO. 6480/2015
Vs.
Defendants : M/s. DHTC (India) Ltd.,
Corporate Office,
IV Floor, City Point,
No.95, Sarat Bose Road,
Near Sisu Mangal Hospital,
Kolkata-700026.
(By Sri Tanveer A.S, Advocate)
Date of institution of the suit 24.07.2015
Nature of the suit (suit on pronote. Suit
for declaration and possession suit for Damages /
injunction, etc.) Compensation
Date of the commencement of 04.01.2018
recording of the evidence.
Date on which the judgment was 31.07.2024
pronounced.
Total duration Year/s Month/s Day/s
08 11 02
JUDGMENT
The plaintiff has filed this suit for damages and direct to pay sum of Rs.4,26,840/- with interest at the rate of 12% per annum from the date of suit till realization. 3 O.S.NO. 6480/2015
2. The case of the plaintiff bank in brief is as under:
The plaintiffs have a public limited company incorporated under companies act 1956 a general insurer, represented officer at No.24, Whites Road, Chennai. And business at 3 rd floor, N.R.Square, Bangalore. The defendant is a public limited company incorporated under the companies act. The First plaintiff in the course of their business transferred their stock of tea in 366 packages from Guwahati to their office at Indore vide their invoice/ stock transfer advice dated 08.07.2012. The said consignment securely packed was entrusted with defendant at their office at Guwahati for safe carriage and delivery at Indore. The defendant acknowledged the entrustment of consignment vide their G.C.No.964091 and 964092 both dated 08.07.2012 thereby undertaking to care for carry and deliver the consignments in the same apparent good order and condition as entrusted. The first plaintiff who are the owner of the suit consignment at all relevant times insured the consignments with the second 4 O.S.NO. 6480/2015 plaintiff under a policy of insurance bearing No.500400/21/12/02/00000033.
3. The plaintiff further contended that the defendant delivered the suit consignment in a short and damaged condition at destination on 12.07.2012. Then the plaintiff enquired knowledge of the loss. The 1st plaintiff who is the owner of suit consignment at all relevant times issued a statutory notice of loss dated 31.08.2012 to the defendant. The Notice was served on 18.09.2012. The defendant issued their damages certificates bearing No.901023 and 900400 both dated 19.09.2012 admitting the fact of shortage and damage to the suit consignment and admitted the value of the loss.
4. The second plaintiff appointed Mr. Bikram Jit Kanwar, an independent surveyor and loss assessor licensed under the insurance Act, to assess the loss suffered by the first plaintiff. The said surveyors after a detailed survey submitted their final report dated 21.08.2012. The first 5 O.S.NO. 6480/2015 plaintiff suffered a loss of Rs.4,26,840/- being the proportionate invoice value of the consignment damaged and short delivered.
5. The plaintiff further contended that the defendant having admitted the fact of damaged deliver by issuing their damage certificates dated 19.09.2012 is liable to pay the value of short delivered/ damaged consignment as a common carrier for reward. The plaintiffs further contended that damage delivery and loss sustained by the plaintiff ought to have been due to negligence and lack of care on part of the defendant coupled with misfeasance, malfeasance and nonfeasance on part of the defendant. Defendant is called upon to disclose as to how they handled the suit consignment and when they had exclusive custody of same during the transit.
6. The plaintiffs have further submitted that the first plaintiffs lodged their claim No.21/12/900000182 on the second plaintiff. The second plaintiff indemnified the first 6 O.S.NO. 6480/2015 plaintiff's claim under the insurance policy and paid them a sum of Rs.4,26,840/- dated 10.10.2013 as per the terms and conditions of the policy. Upon such indemnification the first plaintiff executed letter of subrogation and special power of attorney in favour of th second plaintiff at Bangalore on 29.08.2013. Thereby subrogating their rights in favour of 2 nd plaintiff by virtue of above said SPA as provided under section 79 of the Marine Insurance Act. The second plaintiff is entitled to file and maintain a suit in their own name. He further contended to avoid any technical objection that may be raised by the defendant this suit is being filed jointly by both the plaintiffs.
7. The plaintiffs further contended that plaintiffs entrusted the claim papers to their recovery agents M/s. VNC Claims consultancy and the said recovery agents sent a claim letter dated 18.10.2014 to the defendant calling upon them to compensate the loss. Even further to several reminders, the defendant did not come forward to amicably settle the legitimate claim of the plaintiffs. Hence the he plaintiffs filed 7 O.S.NO. 6480/2015 the present suit for recovery of Rs.4,26,840/- and paid court fee of Rs.28,620/-. Therefore, they prays to allow the suit and damages of Rs.4,26,840/- with interest at the rate of 12% per annum from the date of filing of the suit till realization. Therefore, they prays to decree the suit.
8. After filing the suit, the Court has got issued summons to the defendant. After service of summons the defendant has appeared through his counsel and filed written statement contending that suit of the plaintiff is not maintainable either in law nor on the facts and same is liable to be dismissed. He further contended that this court is not having jurisdiction to entertain the suit. Plaintiff No.1 has disbursed their consignment of Tea from Guwahati in Assam to its office in Indore in the state of Madhapradesh. The alleged loss in the plaint as in para No.3 is during the transit, therefore Gowahati Court or Indore jurisdiction to entertain the suit but not before this court. He further contended Principal and registered office of defendant is at Kolkatha as per section 19 and 20 of CPC, cause of action arose at 8 O.S.NO. 6480/2015 Gowahathi or Indore or Kolkatha. These courts have jurisdiction to entertain the suit, but not this court. On this count suit of the plaintiff is not maintainable, same is liable to be dismissed.
9. Defendant further contended that the consignment was given in the form of packages. The contents and quality of which is neither disclosed nor came into the knowledge of the defendant. Loading at Gowhathi, unloading at Indore is done by the workers in presence of agents of 1 st plaintiff. Consignment duly secured by the workers of 1 st plaintiff in Gowhathi in presence of those people, itself entire consignment duly covered with Tarpauline and tightly secured by the robs. The truck has to pass through different terrains before reaching destination in the course of 7/8 days. During which time if the Tea being vegetable product and if not properly dried out and cured before the packing in the bags by the plaintiff itself. Sometimes liable to be get fungus infection and reducing the weight due to draig for which nobody else other than plaintiff itself is responsible for 9 O.S.NO. 6480/2015 the same but not the defendant. Defendant has taken care and attention in respect of consignment in question. Plaintiff cannot shift its responsibility upon the defendant for its own acts of malfeasance etc., Not disclosing the exact nature of damages whether by loss of weight or something else. The plaintiff has resorted to make the wage averments of damages. Therefore suit of the plaintiff is liable to be dismissed and he prays to dismiss the suit.
10. In order to prove plaintiffs' case, one Smt. Lakshmi Ramakrishnan, the Deputy Manager of the 2 nd plaintiff got examined as PW1 and got marked documents as per Exs.P.1 to P.11. Meanwhile on 6.3.2019 her evidence was discarded. Then the plaintiff examined one C.K.Sudhi examined as PW2 and counsel for the plaintiff memo stating that from PW1 already marked the documents, same may be treated as Ex.P1 to Ex.P11 and got marked documents as per Ex.P12. Smt.Vineetha examined as PW3. On the other hand defendant has not examined any witnesses nor got marked any documents.
10 O.S.NO. 6480/2015
11. Heard the arguments. Perused the records.
12. Based on the above pleadings, my learned Predecessor has framed the following issues on 12.06.2019:
(1) Whether the plaintiffs prove that the defendant owes a sum of Rs.4,26,840/- to the plaintiff?
(2) Whether the Plaintiffs are entitled for the relief claimed in the plaint?
(3) What order or decree?
13. My findings on the above issues are as hereunder:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order for the following:11 O.S.NO. 6480/2015
R E A SON S
14. Issue No.1:- The learned counsel for the plaintiff filed the written argument along with six citations, stating that Hon'ble High Court Judicariary, Madras - 2000 2 L.W. 770 Ravichandran Transport Vs. United India Insurance Company Limited wherein Hon'ble High Court of Madras held that suit filed at Madras is maintainable. In the present case defendant has taken contention goods was consigned at Gowathi and same is transported to Indore. Suit filed in the Bengaluru is maintainable. Therefore he prays decree the suit.
15. Inspite of sufficient opportunity given to the defendant, counsel for the defendant not canvased his side arguments.
16. On going through the averments of the written statement defendant has taken contention suit is not maintainable as per Section 19 and 20 of CPC, cause of action arose at Gowahathi or Indore or Kolkatha, but not in 12 O.S.NO. 6480/2015 Bengaluru. On this count he prays to dismiss the suit of the plaintiff. Apart from it defendant has not placed any single document nor evidence nor he cross examined the PW3.
17. As per the evidence of PW2 consignment was consigned from Margrath to Indore and in this regard produced the Ex.P2 which reveals that in respect of Batch No.276 and Ex.P3 which reveals in respect Batch No.90. He has produced the documents. Even though insptie of giving number of adjournments PW2 was not fully cross examined. Finally court has taken no cross of PW2.
18. Ex.P1 which is invoice. Ex.P2 which is issued by the defendant regarding net weight and gross weight. So also package No.276 and also mentioned the value. Ex.P3 batch No.90, net weight is 3009, gross weight 3027. So also mentioned the value of the goods, which was issued by the defendant. Ex.P4 package No.276, net weight is 9800, gross weight 9063. So also mentioned the value of the goods, which was issued by the defendant. Ex.P5 issued by the 1 st plaintiff 13 O.S.NO. 6480/2015 regarding damage or shortage of 2806.20 kg value of Rs.6,56,722/-. Ex.P6 the material document issued by the defendant on 19.09.2012, certificate of damage/shortage ref No. CN/No.964091x276 dated 8.7.2012, 964092x90 dated 8.7.2012 wherein it has mentioned total booked 366 packages, total delivered 324 packages and net kgs 12017kgs. Ex.P7 the material document issued by the defendant on 19.09.2012, certificate of damage/shortage ref No. CN/No.964091x276 dated 8.7.2012, 964092x90 dated 8.7.2012 wherein it has mentioned total booked 366 bags, total delivered 324 bags and net kgs 12017kgs. Ex.P6 and Ex.P7 are issued by the defendant. In the said documents it has clearly mentioned booked packages and delivered packages. In the Ex.P6 it has mentioned out of 366 bags black tea against above consignment net weight 12017kgs. In which 2120.20kgs are short and 29.20kgs tea were found damage due to accident in transit. The value of shortage/damage tea is approximately Rs.4,95,992/-. So also in the Ex.P7 it has mentioned approximate value of 14 O.S.NO. 6480/2015 Rs.6,56,722/- only as per survey report is shortage. Ex.P6 and P7 issued by the defendant where it clearly reveals that damage in transit and shortage of above said amount. Inspite of it defendant has filed the written statement contending that he is not liable to pay the damages and court has not having jurisdiction to entertain the suit.
19. Plaintiff has produced the Ex.P8 which is issued by the plaintiff No.1, that C/N No.& date 964091/964092 dated 8.7.2012. Said document reveals claim value is Rs.6,56,722/- and in the said document it has mentioned total damage/shortage 715.20kg, total value at 213kg is Rs.5,97,720.60 less salvage at Rs.700.80, Rs.5,97,019.80 add incidental charges 10% - Rs.59,701.98, total net claim amount Rs.5,56,721.78. Then the plaintiff No.2 had paid charges of claim a sum of Rs.4,26,480/-. That the plaintiff has claiming the said amount and issued the notice from 18.10.2014 regarding damages and also amount claimed. After issuance of the notice defendant has not paid the amount. Then the plaintiff has produced the Ex.P12 which is 15 O.S.NO. 6480/2015 the material document, agreement of subrogation cum special power of attorney. Based on these said document plaintiffs are claiming the above said amount. On the other hand defendant has taken contention he has not liable to pay the said amount. Plaintiff No.1 may claim the said amount from plaintiff No.2 but not from the defendant. However counsel for the plaintiff argued that defendant is liable to pay the said amount.
20. In the present case defendant has filed the written statement, apart from it he has not produced any document to come to conclusion he is not liable to pay the above said amount and he has taken contention this court has no jurisdiction to entrusted the suit. Counsel for the plaintiff produced the 2000 4 CCC 239; 2000 1 CTC 748; 2000 2 LW 770; 2000 2 MLJ 318 - Civil Procedure Code (V of 1908), Sec.20(c) - Marine Insurance Act (XI of 1963), Secs.2(1) and 4(2) and Explanation - Maintainability of suit - Goods entrusted to carrier at Mettur, place of destination being Bangalore - Goods were insured with plaintiff, whose office 16 O.S.NO. 6480/2015 was located at Madras - Letter of subrogation executed at Madras and attested by Notary at Madras - Suit by plaintiff against carrier was maintainable at Madras. With due respect to the ratio laid down in the above said judgment that goods entrusted carrier at Mettur to Bangalore then suit was filed before Hon'ble Madras High Court, then Hon'ble Court has ordered that suit is maintainable at Madras. In the present case goods were consigned at Gowathi to Indore then suit filed at Bengaluru, in view of the ratio laid down in the above judgment, suit is maintainable. Hence defence taken by the defendant that suit is not maintainable cannot be taken consideration.
21. Plaintiff No.1 and 2 have filed the suit against the defendant claiming the loss sustained in transit. Under such circumstances that the defendant is to pay the loss sustained by the plaintiff. Counsel for the plaintiff relied on the judgment reported in (2010) 4 SCC 114 in Economic Transport organization, Delhi Vs Charan Spinning Mills Private Limited and another -
17 O.S.NO. 6480/2015
`Right of Subrogation' is statutorily recognized and described in section 79 of the Marine Insurance Act, 1963 as follows: :79. Right of Subrogation- (1) Where the insurer pays for a total loss, either of the whole, or in the case of goods of any apportionable part, of the subject- matter insured, the thereupon becomes entitled to take over the interest of the assured in whatever may remain of the subject- matter so paid for, and he is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject-matter as from the time of the casualty causing the loss.
22. Wherein the Hon'ble Supreme Court of India held that if the goods loss or damages or non delivery of goods, negligence of carrier would be deemed told. In the present case that the defendant has taken the said Tea, then there is loss and damages as stated above. Under such circumstances that as per the above said judgment that the defendant is liable to pay the compensation.
23. PW3 who is the Assistant manager of 2nd plaintiff, she has deposed that 1st plaintiff is public limited company, 18 O.S.NO. 6480/2015 plaintiff No.2 is general insurer. That defendant is entrusted to transport the stock. Then in the transit loss was sustained to the extent of Rs.4,25,840/-. That 2nd plaintiff has issued notice on 13.10.2014 regarding to pay the claim amount. Even though after evidence she was not cross examined by the defendant. PW2 is deposed that 1st plaintiff has dispatched consignment of 366 packages of tea from Gowathi to their agents at Indore vide their stock transport, advise dated 8.7.2012 produced. Cargo was entrusted with defendant for safe carriage and delivery at Indore. She further deposed that defendant is acknowledged the entrust of consignment in goods in order and condition vide their consignment note No.964091 and 964092 dated 8.7.2012. The said consign is including with the 2 nd plaintiff under the policy of insurance bearing No.500400/2021/12/02/ 00000033. The evidence of PW2 reveals that the said consignment was insured with the plaintiff No.2 as per the consignment defendant is delivered the same in good condition. Herein this suit that the defendant has not denied 19 O.S.NO. 6480/2015 consignment of said goods. However as per the evidence of PW2 and PW3 as well as Ex.P6 and Ex.P7 there is shortage/damage tea approximately Rs.4,95,992/- and Rs.6,56,722/-. In turn plaintiff No.2 has paid the amount of Rs.4,26,840/-, then the shortage/damages ought to be paid by the defendant. On the other hand defendant has denied in the written statement and he has taken contention he has not liable to pay the said amount. When the consignment was entrusted to the defendant, it is bound and duty of defendant to safe carriage of the goods which was consigned in the event of any loss then insurer nor he is liable to pay the said loss or damage/shortage. That as per the averments of the plaint defendant is liable to pay the said amount in view of the ratio laid down in the above said judgments.
24. At this stage counsel for the plaintiff has relied the judgment of Hon'ble High court of Karnataka in - Basavaraj Yallappa Pundi Vs National Insurance company limited, Belagavi wherein Hon'ble High Court of Karnataka held that 20 O.S.NO. 6480/2015 "Claim of consignee against the carrier -
carrier pleaded that vehicle was gutted in fire, hence he is not liable to - driver, cleaner nor coolie was examined except himself to prove his act of god - trial court is justified in holding that the carrier failed to discharge his burden.
25. Herein this suit while consigning the goods into the lorry then it is the duty of transporter to verify that packed in good condition and no package or parcel is damaged and he must count the packages while loading the goods. If any damage found nor not properly packaged then he might have brought to the knowledge of proper person and he may denied to load the said goods. Herein this suit while loading the above said packages he has not made any complaints regarding packages nor about the goods. After loading the said goods were delivered at Indore then during the transit shortage/damage above said consignment then it is him to suffer the loss during the transport of said goods. Mere non examination of license surveyor that he cannot shift his burden on the plaintiff. Herein this suit he has not made 21 O.S.NO. 6480/2015 any objection while loading the above said tea packages. On the other hand defendant has stated in the written statement that Tea being a vegetable product and if not properly dried up and cured before packing in the bags by the plaintiff itself is sometimes liable to get fungus infection and reduced in rate due to drage for which nobody else other than the plaintiff itself is responsible. It is not the case of the defendant that while loading the said tea it was not dried up properly and then there is chances of loss of weight for not properly dried up. In this regard there is no document placed by the defendant stating that it was not dried up properly and said tea was got fungus infection, due to it reduced the weight. On the other hand the plaintiff has stated that he has taken the report from licensed surveyor that the shortage/damages of tea worth Rs.4,26,840/-. In the present case license surveyor report cannot be ignored that mere non examination of surveyor. On the other hand Ex.P6 and Ex.P7 reveals that there is shortage/damage of the tea which was consigned to the defendant. Herein this suit said license surveyor has not 22 O.S.NO. 6480/2015 examined by the plaintiffs. On the other hand one Jagan Bhari P company consignor has gave the survey regarding damage/shortage of said packs as per Ex.P5.
26. In this regard plaintiff has produced the judgment in 2008 0 Supreme(AP) 663 - New India Assurance Company limited and another Vs State of AP represented by Director of Fisheries, Hyderabad and others decided on 22.08.2008-
(b) General Insurance Act, 1938, Section 64-UN - Principles of claim in marine hull insurance stated - I) Licensed surveyor report can not be ignored just because notice was not giving to the claimant by the surveyor or he was not examined ii)Even an unlicensed surveyors report can be accepted after giving an opportunity to prove the investigation
iii)Report of licensed insurance surveyor can not be ignored just because he is not examined iv)The probate value of the surveyor increases on failure of the claimant to appoint a surveyor With due respect to the ratio laid down in the above said judgment, same is applicable to the present suit. 23 O.S.NO. 6480/2015
27. In the present case apart from filing the written statement defendant has not fully cross examined the PW2 nor cross examined the PW3. Even he has not produced any evidence to come to conclusion that the plaintiffs are not entitled to get the above said claim amount. Even he has not produced the evidence or documents to come to conclusion he has not liable to pay the above said claim amount. Inspite of giving number of adjournments that the counsel for the defendant has not canvased the arguments. These are all circumstances clearly shows that the defendant is liable to pay the damages. Even though he cannot stand on the foots of the plaintiff. For non cross of PW2 and PW3 as well as documents placed by the plaintiffs that there is no reason to disbelieve or discard the evidence of PW3. Therefore the plaintiffs have made out grounds to decree the suit. Hence I answer Issue No.1in the 'Affirmative'.
28. Issue No.2 : In view of the above said discussion that the defendant has not placed any documents or evidence to come to conclusion that this court has no jurisdiction to 24 O.S.NO. 6480/2015 entertain the suit nor plaintiffs are not entitled for the reliefs as claimed. Therefore for the above said discussions, I answer issue No.2 in Affirmative.
22. Issue No.3:- In view of my answer to Points No.1 to 3, I proceed to pass the following:-
O R DE R Suit filed by the plaintiffs against the defendants is hereby decreed.
The defendant is hereby directed to pay the damages of Rs.4,26,840/- along with interest at the rate of 12% p.a. from the date of suit till the date of realization.
Draw a decree accordingly.
(Dictated to the Stenographer, typed by her, corrected and then pronounced by me in the Open Court on this the 31st day of July, 2024) (A. EARANNA) LXII Addl. City Civil & Sessions Judge, Bengaluru City.25 O.S.NO. 6480/2015
ANNEXURE List of witnesses examined for the plaintiff's side:-
PW.1 Lakshmi Ramakrishnaiah PW.2 C.K. Sudhi PW.3 Vineetha
List of documents exhibited for the plaintiff's side:-
Ex.P.1 Invoice dated 08.07.2012 Ex.P.2 to 4 Consignment Notes(three in No.s) Ex.P.5 Notice of laws dated 31.08.2012 Ex.P.6 & 7 Damage Certificates dated 19.09.2012 (two in Nos) Ex.P.8 Claim bill dated 21.09.2012.
Ex.P.9 Settlement Voucher
Ex.P.10 Office Copy of claim notice dated 18.l0.2014
Ex.P.11 Postal acknowledgment pertaining to Ex.P.10
Ex.P.12 Agreement of subrogation cum special power of
attorney
List of witnesses examined for the defendants' side:-NIL List of documents exhibited for the defendants' side:-NIL (A. EARANNA) LXII Addl. City Civil & Sessions Judge, Bengaluru City.