Bangalore District Court
Is A Public Sector Undertaking Carrying ... vs Has Issued A Damage Certificate ... on 9 November, 2022
KABC170006602022
IN THE COURT OF LXXXV ADDL. CITY CIVIL &
SESSIONS JUDGE, AT BENGALURU (CCH-86)
(Commercial Court)
THIS THE 09TH DAY OF NOVEMBER 2022
PRESENT:
SMT. LATHAKUMARI M.
M.A., LL.M.,
LXXXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com. O.S. No. 356/2022
BETWEEN:
1. The New India Assurance
Company Limited,
Regional Office/Claims Hub,
# 2-B, Unity Building Annex,
Mission Road, Bangalore - 560 027
Represented by its Regional Manager.
2. M/s. Sreenathji Chemical
Industries
#88, 7th Main Road
3rd Phase, Peenya Industrial Area
Bangalore - 560 058
Represented by the Plaintiff No.1
as Power of Attorney Holder/Subrogee
: PLAINTIFFS
(Represented by Sri. A.R.
Lakshmi Narayana - Advocate)
2
Com. O.S. No. 356/2022
AND
M/s. Manoj Cargo Carriers
Ramamurthy Mansion
# 81, 1st Main, 3rd Cross,
New Timber Yard Layout
Mysore Road
Bangalore 560 026.
: DEFENDANT
(Represented by Sri. B.S.
Jayanth Krishna - Advocate)
Date of Institution of the 28.02.2022
suit
Nature of the suit (suit on
pronote, suit for
declaration & Possession, Suit for recovery of money
Suit for injunction etc.)
Date of commencement of
recording of evidence 27.07.2022
Date on which judgment 09.11.2022
was pronounced
Total Duration Year/s Month/s Day/s
00 08 11
(LATHAKUMARI M.)
LXXXV Addl.City Civil & Sessions Judge,
Bengaluru.
3
Com. O.S. No. 356/2022
JUDGMENT
This is a suit filed by plaintiffs to pass a judgment and decree against the defendant for a sum of Rs.6,60,773/- together with court cost and current interest @ 18% p.a., from the date of this suit till realization and for such other orders as this court deems fit to grant in the facts and circumstances of the case.
2. The brief facts of the plaintiff's case is that, the 1st plaintiff is a public sector undertaking carrying on Insurance such as Fire, Marine, Motor, Health and Miscellaneous Insurance, having its registered office at Mahatma Gandhi Road, Fort, Mumbai and a Regional Office/Claims Hub at Mission Road, Bengaluru. The 2 nd plaintiff is a company which is one of the leading suppliers of industrial chemicals. They supply supreme quality of Ethyl Acetate etc., who buys quality Ethyl Acetate in bulk from the leading manufacturers, having their registered office at No.14, 1 st Floor, Laxmi Building, J.C. Road, Bangalore. According to plaint averments, the defendant is a Common Carrier engaged in the business of transporting goods from one place to another, to whom the goods in the instant case were entrusted for transportation. The 2nd plaintiff had 4 Com. O.S. No. 356/2022 purchased 0.5 MT of Refined Glycerin packed in 2 N/M Carboys of 250 kgs each and Refined Glycerin of 15.50 Mts packed in 62 N/M Carboys of 25 kgs in each carboys. The said containment was loaded into Truck No. KA-25-AA-1610 of defendant. It is plaintiffs further case that, the defendant accepted the consignment for safe transportation and timely delivery to the Consignee and issued Consignment Note bearing No. 579646 dated 27.02.2019. Since the truck assigned to carry the subject consignment was of 20MTs capacity, the transporters sent the truck to Vashi (Transporter's godown) to pick up additional load and other chemical drums were being loaded into the truck. It is further asserted that, the 2nd plaintiff had obtained a Marine Cargo Open Policy from the 1st plaintiff covering all their consignments such as Hazardous chemicals, solvents, acids, granules etc securely packed in Tankers, Drums and Carboys against All Risks of Physical loss Clause (ITC-A & SRCC) being transported by Road/Rail. The policy covers the physical loss or damage to the cargo due to accident and/or theft and/or shortage and/or non-delivery etc., whilst in transit and/or in the custody of the carrier. The voyages covered from 'Anywhere in India to Anywhere in India'. The 1st plaintiff has issued a Marine Cargo Open Policy No. 5 Com. O.S. No. 356/2022 67020121180200000001 for the period from 09.04.2018 to 08.04.2019 for an initial Sum Insured of Rs.80 crores and was periodically enhanced based on the requirements of the 2nd plaintiff. The Plaintiffs further asserts that, it is reported that on 28.02.2019 around 10.00 PM, when the additional load of Nitric acid (chemical) was being loaded into the vehicle, the insured cargo caught fire due to exothermic reaction (Nitric acid came near insured Glycerin). Fire Brigade was informed who arrived onto the site and extinguished the fire. Police were informed about the fire accident and a case was registered. It is plaintiffs further case that, the Insured cargo suffered damages due to negligence of the Carrier by loading another cargo which is reactive to the insured cargo. Thus the damage to the consignment was caused during the transit and while in the custody of the Defendant. The Defendant has issued a Damage Certificate confirming the carriage of consignment and damage to the same due to accident while it was in transit. It is the plaintiffs further case that, the 2 nd plaintiff informed the 1st plaintiff about the damage of Rs.8,67,595/-. The 1st plaintiff appointed Trans Ocean, Marine & General Survey Agencies, Mumbai, IRDA licensed Surveyors, who conducted spot survey at Truck Terminal near APMC Market, 6 Com. O.S. No. 356/2022 Vashi and detailed inspection at Carrier's warehouse at Dapoda Village. The Surveyor has assessed the loss at Rs.7,09,162.30 for the damages suffered by the consignment. The accident was reported to APMC Police Station and the same was registered under FIR No. 56/2019 u/s 34 and 285 of IPC. The 1st plaintiff scrutinized the claim preferred by the 2nd plaintiff for the loss/damage caused to the consignment during the transit and paid Rs.6,40,949/- to the 2nd plaintiff and paid Survey Fee of Rs.19,824/- to the Surveyors towards the Survey Fee Bill. Thus the total loss on account of the said incident is Rs.6,60,773/-. It is plaintiffs further case that, the defendant to whom the consignment was entrusted was for its transportation and delivery to the Consignee safely. The plaintiffs suffered a loss of the consignment for Rs.6,60,773/- while it was in the custody of the Defendant. Thus the defendant is liable for any loss or damages to the goods whilst in transit/custody of the Defendant. Hence the defendant is liable to indemnify the said loss. On such settlement of the claim of the 2nd plaintiff by the 1st plaintiff, the 1st plaintiff is subrogated to the rights of the 2 nd plaintiff to recover the amount from the defendant carriers and also holds a Power of Attorney and Letter of Subrogation to pursue the 7 Com. O.S. No. 356/2022 recovery proceedings against the defendant. The 2 nd plaintiff has made necessary claim on the defendant vide their letter dated 05.03.2019 in respect of the loss caused to the goods in transit as permitted in the statute. The defendant has issued a Damage Certificate confirming the damage to the consignment while it was under their custody. The cause of action for this suit arose on 27.02.2019 when the consignment was entrusted to the defendant at Bangalore for transportation. The plaintiffs have their office and place of business in Bangalore and the insurance policy was issued by their J C Road Branch, Bangalore. Hence, this court has jurisdiction to adjudicate the subject suit. Hence the plaintiffs constrained to file this suit for the reliefs mentioned supra.
3. On issuance of suit summons the defendant appeared through its counsel and resisted this suit by filing its written statement contending that, there is no privity of contract between himself and 1st plaintiff and 1st plaintiff has no locus standi to file this case. It is further contended that 2 nd plaintiff has already been compensated a sum of R.6,40,949/- by the 1st plaintiff being the Insurer, for the damage caused to the insured consignment of 2 nd plaintiff in transit and thereby plaintiffs now estopped from filing 8 Com. O.S. No. 356/2022 this suit and same is liable to be dismissed. The subrogation letter executed by 2nd plaintiff in favour of 1 st plaintiff to enforce recovery from Cargos and such other agents are unknown to law. This defendant cannot be held responsible for loss or damage caused to the consignment, unless such loss or damage was due to an act of negligence/omission. It is further contended that as per the records, it is crystal clear that fire broke out due to reaction of chemicals in the consignment and not due to negligence of defendant or its omission. That apart, as per the terms and consignment note goods were agreed to transport to the consignee at the owners risk and thereby defendant is not at all liable to pay any amount much less the amount claimed. There is no cause of action against this defendant and further this court has no jurisdiction to conduct this case. Further, defendant also mentioned the terms and conditions of the consignment note in para-4 of his written statement. In para-5 of the written statement, it is further mentioned that the defendant's vehicle bearing Registration No. KA-25-AA- 1610 reached the Vashi Mumbai to pick up the cargo of the 2nd plaintiff and unfortunately during loading, the cargo caught fire. The defendant personnel being diligent immediately informed the Fire Brigade, jurisdictional police 9 Com. O.S. No. 356/2022 station and also 2nd plaintiff. Out of 64 drums of the consignment, 13 drums were in good condition and remaining 51 drums were fully damaged. The defendant issued transport department certificate of fact dated 18.03.2019 only for witnessing the damages and not as admission of any liability or claims. It is further contended that, the defendant did not load any cargo Nitric acid, on the contrary loaded Cargo containing PVC wires, AA dyes, PVC solvents and other chemicals but not Nitric acid. He has loaded the cargo with utmost care and caution. Since the 2nd plaintiff consignment was insured with the 1 st plaintiff and insured made a claim of Rs.8,67,595/-, 1 st plaintiff appointed a surveyor to estimate the damage caused. The surveyor visited the defendant's terminal in Mumbai and the defendant diligently co-operated with the surveyor for assessing the damages caused. Based on the survey report, 1st plaintiff being the insurer paid a sum of Rs.6,40,949/- to the 2nd plaintiff for damaged insured consignment. When such being the case, defendant was shocked to know this suit filed by the plaintiffs claiming a sum of Rs.6,67,773/- from him along with interest at the rate of 18% p.a. Admittedly, the incident occurred in Vashi, Mumbai and this court has no jurisdiction to entertain the 10 Com. O.S. No. 356/2022 present suit. The court fee paid by the plaintiff is insufficient. Suit filed by the plaintiff is not at all maintainable for want of jurisdiction and hence pray for dismissal of this suit with exemplary cost.
4. Based on these pleadings, this court framed following issues:
1) Whether the 1st Plaintiff insurance company proves the insured cargo suffered damages due to negligence of the defendant carrier who loaded another cargo along with 2nd plaintiff's insured cargo which is reactive to the insured cargo?
2) Whether the 1st plaintiff insurance company further proves that the consignment of 2 nd plaintiff was entrusted to the defendant for its transportation on delivery to the consignee safely?
3) Whether defendant proves that claim made by the 1st plaintiff against defendant is barred by limitation?
4) Whether defendant further proves that 1 st plaintiff has no locus standi to file this suit against him as there is no privity of contract between the 1st plaintiff and defendant?
5) What order or decree?11
Com. O.S. No. 356/2022
5. On behalf of 1st plaintiff insurance company, its authorized signatory K. Yuvaraj got examined himself as PW.1 and got marked as many as 19 documents Ex.P1 to P19. On behalf of defendant, its authorized signatory P.R.Balaji got examined himself as DW.1 and got marked 2 documents as Ex.D1 & D2, the authorization letter issued by defendant, Logistic Company Limited.
6. I have carefully scrutinized the entire records before me. Heard the arguments.
7. My findings on the above Issues are as under: -
Issue No.1 & 2: In the Affirmative Issue No.3 & 4: In the Negative Issue No.5 : As per final order for the following REASONS
8. Issue No.1 & 2: These two issues are taken up together for consideration to avoid repetition of facts.
It is not in dispute that 2nd plaintiff Cargo i.e., drums containing Glycerin CP was given to defendant herein who 12 Com. O.S. No. 356/2022 is a common carrier for transporting the said goods for 2 nd plaintiff. It is also not in dispute that when such Cargo/ consignment was in the custody of defendant, Cargo caught fire and out of 64 drums more than 50 drums containing Glycerin CP were fully damaged. It is the contention of 1 st plaintiff insurance company who in turn had issued policy as per Ex.P7 in favour of 2nd plaintiff that, defendant loaded said drums along with reactive chemical i.e., Nitric Acid and thereby the chemicals caught fire due to Exothermic reaction i.e., Nitric Acid came near insured glycerin and thereby due to negligence of the carrier who loaded another cargo which is reactive to the insured cargo, the insured cargo caught fire. It is also not in dispute that having accepted the consignment of 2 nd plaintiff, defendant was under obligation to transport the same with all safety. 1st plaintiff's Manager who is also authorized signatory of 1 st plaintiff company got examined himself as PW.1. In his chief affidavit by reiterating the plaint averments, he has stated on oath that on 28.02.2019 around 10 PM when the additional load of Nitric Acid was being loaded into the vehicle of defendant, the insured cargo caught fired due to Exothermic reaction. In support of this contention, PW.1 has produced FIR along with report issued by Fire Brigade 13 Com. O.S. No. 356/2022 Department which is as per Ex.P19. In the FIR it is specifically mentioned that due to loading of Nitric Acid along with chemical containing glycerin drums, the cargo caught fire and thereby insured cargo got damaged. Registration of this FIR by concerned police on 28.02.2019 is also not in dispute. In para-17 of the written statement, defendant has mentioned that, Fire Brigade was informed who arrived on to the site and extinguished the fire and police was informed about the fire accident and a case was registered which is true and admitted by the defendant. Along with the FIR, PW.1 has also produced report issued by Navi Mumbai Fire Brigade Department. In this report, it is mentioned that the truck bearing No. KA-25-AA-1610 caught fire and the chemicals in it were damaged. In the cross-examination of PW.1 defendant has not at all questioned PW.1 with regard to Ex.P19 and its contents. In the cross-examination it is only suggested that the survey was conducted by 1st plaintiff surveyor himself and also elicited that in Ex.P2 i.e., consignment note there exist clause (5) stating that defendant is not responsible for leakage, breakage, damage of whatsoever nature at the time of delivery. It is further elicited that no notice has been issued by 1st plaintiff calling upon the defendant to pay the 14 Com. O.S. No. 356/2022 damages as claimed in this suit. It is also suggested that defendant can carry any consignment in the truck concerned whatever he received on that day for transportation. In this regard, PW.1 has specifically deposed before this court that, defendant cannot carry such consignment which causes damages to the other consignment. It is also suggested that 2 nd plaintiff has not made any such allegation of negligence of defendant at any point of time. It is further suggested that only to harass the defendant, this suit has been filed against defendant even though as per policy terms and conditions plaintiff has already settled the claim of 2nd plaintiff. Hence, the FIR produced and relied upon by plaintiff herein as per Ex.P19, was not at all disputed by defendant herein. As I have already stated, in this FIR, it is specifically mentioned that as per First Information contents there was a reaction of the chemical i.e., Nitric Acid with that of the insured cargo, glycerin and thereby the Cargo in motor lorry bearing Registration No. KA-25-AA-1610 caught fire.
9. On behalf of defendant, its authorized signatory got examined himself as DW.1. In his chief affidavit at para-6, DW.1 has mentioned that defendant did not load any cargo containing Nitric Acid, on the contrary loaded cargo 15 Com. O.S. No. 356/2022 containing PVC wires, AA dyes, PVC solvents and other chemicals but not Nitric Acid. It is also mentioned that the defendant has loaded cargo with utmost care and caution. This version of DW.1 forthcoming in para-6 of his chief- affidavit establishes that, apart from insured cargo of 2 nd plaintiff, defendant also loaded various other cargo including other chemicals. If said other chemical is not Nitric Acid, which is that chemical, has not been explained by the defendant herein. Defendant having accepted the cargo for transportation, it is probable that he shall not receive cargo without knowing the contents of the cargo he is required to be transported to its destination. If the chemical are got reacted with the insured cargo i.e., glycerin is not Nitric Acid what is that chemical has not been explained by the defendant herein. On the other hand, as per police report, the cargo contained in the truck i.e., Nitric Acid reacted with the glycerin and thereby the goods caught fired. In plaintiffs receipt issued by defendant herein which is as per Ex.P2, the defendant has mentioned that he has received 64 drums glycerin from its consignor i.e., Godrej Industries Limited for transportation. Similarly, even in respect of other chemicals which defendant loaded along with 2nd plaintiff's cargo, defendant invariably had issued 16 Com. O.S. No. 356/2022 such consignment receipt for having received the articles and in the description column he will certainly mention what is that article said to be contained in that drums. Whereas defendant neither produced receipt to establish that the chemical contained in other drums which he loaded along with insured cargo was not Nitric Acid but other chemical. Withholding of such document reuqires an adverse inference to be drawn against defendant. On the other hand, said self-statement of DW.1 available at para-6 of his affidavit is contrary to the information available in undisputed document Ex.P19 produced and relied upon by the plaintiff herein. In his cross-examination, DW.1 admits that he is a transporter and hired truck bearing No. KA-25- AA-1610. DW.1 has denied that in the survey report i.e., Ex.P14 defendant's own employee Mr. Balu has mentioned to the surveyor that at the relevant point of time along with 2nd plaintiff consignment they loaded Nitric Acid in the truck mentioned supra. DW.1 has denied the suggestion that since the Nitric Acid was loaded along with 2 nd plaintiff cargo his goods were damaged due to fire. DW.1 admits that he has issued Damage Certificate confirming the damages caused to the consignment of 2nd plaintiff. He further admits that as per Ex.P19 even concerned police 17 Com. O.S. No. 356/2022 have registered FIR stating that Nitric Acid loaded along with 2nd plaintiff consignment, resulted in the damage of consignment of 2nd plaintiff. In Ex.P14, the cause of fire is mentioned as along with glycerin drums chemicals like Nitric Acid were loaded which resulted in explosive. This oral and documentary evidence available before this court establishes that 2nd plaintiff's cargo which was entrusted to the defendant for transportation with a condition to transport the same with all due care and safety caught fire due to loading of reactive chemical i.e., Nitric Acid along with the 2nd plaintiff's cargo i.e., glycerin. DW.1 in his cross- examination deposed that he will load whatever consignment received by him everyday. Whereas, while loading such consignments, more particularly drums containing chemicals, the defendant has to take care that he shall not load reactive chemicals together. Defendant without taking any precaution, without considering the nature of chemicals negligently loaded the same in the same truck which resulted in explosive. Accordingly, I have answered Issue No.1 and 2 in the Affirmative.
10. Issue No.3 & 4: - The learned counsel for defendant specifically canvassed that there is no privity of contract between 1st plaintiff and defendant herein and thereby 1st 18 Com. O.S. No. 356/2022 defendant has no locus standi to file the present suit against the defendant. Secondly, canvassed before this court, no statutory notice u/s 10 of the Carriers Act, 1865 was issued by the plaintiffs demanding the suit claim to the defendant and thereby suit filed by the plaintiff is hit by Sec.10 of the Carriers Act. Thirdly, it was contended that as per the terms and conditions of the consignment note i.e., Ex.P2, it is specifically mentioned that goods carried at owners risk, and thereby defendant is not liable and goods has been transported at the risk of owner and thereby canvassed that defendant cannot be held responsible for the fire being caught to the cargo of the 2 nd plaintiff. In support of this submissions learned counsel for defendant also relied upon two citations of Hon'ble Kerala High Court and Hon'ble Delhi High Court respectively. These two citations relied upon by the defendant are in respect of Sec.10 of the Carriers Act. Before considering the condition available in the consignment note i.e., 'goods carried at owners risk', let me consider whether plaintiff's suit is hit by Sec. 10 of the Carriers Act. Even though defendant has not taken this contention in his written statement, same is considered since it is a statutory provision. In the cross- examination of PW.1, it is elicited by defendant that plaintiff 19 Com. O.S. No. 356/2022 has not issued any notice to the defendant herein asking him to pay the damages as claimed in this suit. Further, PW.1 pleaded his ignorance about any such notice issued by 2nd plaintiff to the defendant herein. PW.1 got marked as many as 19 documents in support of his case. The vital document in this regard is the letter dated 05.03.2019 addressed by 2nd plaintiff herein to the defendant. As per the provisions of Sec. 10 of Carriers Act, it is mentioned that no suit shall be instituted against a common carrier for the loss or injury to goods assigned 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 6 months of the time when the loss or injury first came to the knowledge of the plaintiff. As per this provision, it is necessary to inform the transporter i.e., defendant herein with regard to damage or loss caused to the goods and in turn to the plaintiff. In pursuance of this letter Ex.P9, 2 nd plaintiff has specifically informed defendant that the accidental fire had taken place near the premises of Manoj Cargo Carriers (defendant), Truck Terminal, Navi Mumbai and maximum quantity of his cargo was destroyed due to the fire and the balance which remained is not acceptable as it cannot be supplied to pharmaceutical and any other industry. Hence, 20 Com. O.S. No. 356/2022 he requested the defendant to send the DD as per invoice mentioned in the Godrej Industries Limited i.e., consigner. Apart from this letter dated 05.03.2019, plaintiff has also produced another letter issued to 2nd plaintiff by the defendant as per Ex.P6, in which there is also reference about another letter dated 18.03.2019 i.e., subsequent to Ex.P9 probably 2nd plaintiff has issued another letter dated 18.03.2019. These letters are issued within 30 days from the date of accident i.e., 28.02.2019. Further, in Ex.P6 defendant has mentioned that they agree to the above value i.e., Rs.9,25,120/- without prejudice. It is further mentioned that the consignment was transported at owner's risk and this certificate i.e., Transport Department Certificate of Fact as per Ex.P6 is issued at the request of consignee preliminary for the purpose of lodging a claim with under writers with whom the subject consignment is insured and without admission of any liability of transporter default on their part. In fact, the above loss, obstruction, damage etc., during transit. However, Ex.P6 and P9 establishes that 2nd plaintiff, the consignee issued such notice of damages caused to the cargo to its transporter i.e., defendant herein. It is not in dispute that 2 nd plaintiff has executed letter of subrogation and also General Power 21 Com. O.S. No. 356/2022 of Attorney in favour of its insurer i.e., 1 st plaintiff herein which is as per Ex.P16. In pursuance of this letter of subrogation 1st plaintiff steps into the shoes of 2 nd plaintiff herein. Since 2nd plaintiff has issued such notice as per Ex.P9 and much prior to that another such letter/notice on 18.03.2019 itself which finds a place in the defendant's reply Ex.P6, these documents being produced and relied upon by the plaintiff establishes that Sec. 10 of the Carriers Act has been complied by them and thereby suit filed by plaintiff against defendant for recovery of damages to the tune of Rs.6,60,773/- is maintainable and not hit by Sec. 10 of Carriers Act. Hence, the defence taken by the defendant in this regard at the time of canvassing his arguments do not hold any water. Another contention of defendant is that 2nd plaintiff has already been compensated by 1 st plaintiff herein and thereby plaintiffs are established from making any claim against him. This is a suit based on letter of subrogation dated 29.05.2019 which is as per Ex.P16. The doctrine of subrogation is a creature of equity. In cases of insurance where a third party is liable to make good the loss, the right of subrogation depends upon and is regulated by the broad underlying principle of securing full indemnity to the insured, on the one hand, and on the other of holding 22 Com. O.S. No. 356/2022 him accountable as trustee for any advantage he may obtain over and above compensation for his loss. The primary consideration is to see that the insured gets full compensation for the property destroyed and the expnses incurred in making good his loss. The next thing is that he holds any surplus for the benefit of insurance company. 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 is not in dispute that, first plaintiff is insurer of the cargo in dispute of 2 nd plaintiff who received the policy from 1st plaintiff. Subrogation is based on the insurance policy and the receipt issued by the assured acknowledging the full settlement of the claims relating to the loss. Further, the assured has no right to deny the equitable rights of subrogation of the insurer in accordance with law. Sec. 140 of the Contract Act, 1872 makes it clear that the equitable right of subrogation when the insured settles the claim of the assured, for the entire loss. When there is an equitable subrogation in favour of the insurer, the insurer allowed to stand in shoes of the assured against the wrongdoer. The defendant is the wrong doer herein and 23 Com. O.S. No. 356/2022 1st plaintiff being the insurer now steps into the shoes of its insured i.e., 2nd plaintiff herein, in view of this contract of subrogation. Even though it is not necessary that such contract of subrogation between insurer and its assured shall be in writing, PW.1 has produced letter of subrogation issued by 2nd plaintiff herein in favour of 1 st plaintiff as per Ex.P16. Hence, the contention taken by defendant that since insured company has already settled the claim of 2 nd plaintiff, defendant cannot be made liable for any such claim towards damage of cargo is vague and baseless. Further, it is not in dispute that 1 st plaintiff being the insurer has cleared the claims of 2 nd plaintiff herein. In this regard, PW.1 has also produced Ex.P16 stating that in consideration of an amount of Rs.6,40,949/- paid by 1 st plaintiff insurance company, 2nd plaintiff is executing the letter of subrogation. Further, the defendant is trying to take shelter under Ex.P2 produced by plaintiff in which it is mentioned that received consignment at owners risk. Further, condition No.2 mentioned in Ex.P2 that "goods carried at owner's risk insured with against specified risk." DW.1 has produced two documents in support of his contention. The vital document is Ex.D2, the consignment note which is original of Ex.P2. The terms and conditions available to the parties is 24 Com. O.S. No. 356/2022 mentioned on the back side of this document. At clause(4) it is mentioned that "the company shall not be liable for any loss or damage due to theft, weather conditions, strikes, riots, disturbances, fire, explosion or accident or any act of God beyond their control provided however all reasonable precautions are taken to provide against such contingencies". Whereas, defendant in this case negligently loaded Nitric Acid, a reactive chemical with that of the glycerin which resulted in explosive. Defendant has failed to establish that he has taken all reasonable precautions in delivering the goods to the consignee. Further, according to DW.1, owner's risk, defendant cannot be held liable for any leakage, etc., of the cargo. Whereas it is neither the case of plaintiffs nor the defence of defendant that consignment was delivered to defendant in a damaged state. DW.1 categorically admits in his cross-examination that 1 st plaintiff had paid the claim of 2 nd plaintiff herein. It is also not in dispute that insured cargo caught fire at defendant's terminal. It is also not in dispute that, 2 nd plaintiff lodged his claim against this defendant as per Ex.P9 claiming amount mentioned in the invoice issued by Godrej Industries Ltd. At this stage, it is necessary to go through the provisions of Sec.9 of the Carriers Act which reads as under: - "In any suit 25 Com. O.S. No. 356/2022 brought against a common carrier for the loss, damage or non-delivery of [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." This is a presumption available to the plaintiffs herein against the defendant. In pursuance of this presumption it is not necessary for the plaintiffs to establish that accident was taken place due to the negligence of the defendant or its driver. On the other hand it is for the defendant to rebut the presumption by producing oral and documentary evidence. DW.1 admits that the insured cargo caught fire at its terminal when he was loading the cargo. The duty casted on the defendant to rebut the presumption available to the plaintiff u/s 9 of the Carriers Act. Whereas defendant has not at all produced any document to substantiate his defence that he had taken all necessary precaution and safety during transporting the consignment. He has not produced any piece of paper to establish that explosion taken place in spite of his precaution. Defendant admits that consignment got damaged since same caught fire. Further, defendant 26 Com. O.S. No. 356/2022 neither whispered about the nature of other chemicals which he loaded along with 2nd plaintiff's cargo nor produced consignment note issued by him in respect of the same. In the absence of the same, this court opines that defendant has not at all rebutted the presumption available to the plaintiff u/s 9 of the Carriers Act with regard to insurer. On the other hand, though it was not necessary for the plaintiffs to establish negligence of defendant, PW.1 in his cross-examination has categorically stated that the insured cargo caught fire due to the negligent act of the defendant. Apart from the same, PW.1 has produced certificate of facts issued by defendant himself which is nothing but a damage certificate as per Ex.P6. Further, defendnat has not produced the document I.e, consignment note issued in favour of his other consignor for having received drums containing chemicals on that day which he loaded along with insured chemical. Withholding of such a document requires an adverse inference to be drawn against defendant. In the absence of presumption due to contract of subrogation defendant is liable to pay the amount claimed by the plaintiffs. Defendant having damaged the consignment now cannot evade from his liability stating that policy issued by 1 st plaintiff taken by 2nd 27 Com. O.S. No. 356/2022 plaintiff herein at his personal capacity was in force. Now let me consider the jurisdiction of this court in adjudicating this issue, since defendnat has taken in his written statement, a plea that this court has no jurisdiction. Admittedly 1 st plaintiff branch office is situated at Bengaluru and defendant's representative before this court who deposed as a witness, as stated himself in his chief-affidavit as Authorised Signatory, Manoj Cargo Carriers, Bengaluru. The 1st plaintiff having issued the Insurance Policy to the 2 nd plaintiff herein whose office is also situated at Bengaluru, this court is having jurisdiction to try this matter and the contention taken by defendant in this regard does not hold any water. There is no dispute that 1st plaintiff has settled the claim of 2nd plaintiff of Rs.6,60,773/-. As per the principles of subrogation discussed supra, the defendant being the transporter/carrier of the consignment of 2 nd plaintiff who failed to rebut the presumption available u/s 9 of the Carriers Act is liable to pay the same to the 1 st plaintiff. Having damaged the consignment while his custody, defendant now cannot evade from his liability towards plaintiffs. On the principles of subrogation defendant is liable to pay the amount claimed by the plaintiffs. Under such circumstances, the contention taken 28 Com. O.S. No. 356/2022 by defendant that suit filed by the plaintiffs against him is without cause of action is also nothing but a vague statement. Defendant not at all produced even a piece of paper to show that the damage of goods due to fire was act of God and there is no negligence on his part. Accordingly, I have answered Issue No.3 and 4 in the Negative.
11. Issue No.5 : - In view of my findings on Issue No.1 to 4, this court opines that, it is not necessary for the plaintiffs to prove the loss/damage was due to the negligence of the defendant or its employees. The presumption regarding negligence was not rebutted by defendant. Therefore, plaintiffs are entitled to recover a sum of Rs.6,60,773/- from defendant along with interest. The transaction being commercial transaction, the interest claimed by plaintiffs at the rate of 18% appears reasonable. Accordingly, I proceed to pass the following order.
ORDER
The suit filed by the plaintiffs to pass a
judgment and decree against the
defendant for a sum of Rs.6,60,773/-
together with cost and current interest at
29
Com. O.S. No. 356/2022
the rate of 18 per cent per annum from the
date of suit till realization of the amount is decreed with cost.
Defendant is directed to deposit the amount along with interest at the rate of 18% p.a., by calculating the same from the date of suit within 30 days from today, failing which 1st plaintiff being the insurer can recover the same from defendant in accordance with law.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on the computer, transcribed by him, corrected and then pronounced by me in open Court on this the 09th day of November, 2022).
(LATHAKUMARI M.), LXXXV Addl. City Civil & Sessions Judge, Bengaluru.