Bangalore District Court
M/S.Bosch Ltd vs Unknown on 31 July, 2015
IN THE COURT OF THE LXI CITY CIVIL JUDGE,
BENGALURU. (CCH-62)
Dated this the 31st day of July, 2015
-: PRESENT :-
SRI.N.P.KOPARDE, B.A.,LL.B.(Spl.)
LXI Addl.City Civil Judge,
C/c. of VIII Addl. City Civil Judge,
Bengaluru.
ORIGINAL SUIT No. 1910/2012
PLAINTIFFS:
1. M/s.Bosch Ltd., Hosur Road,
Adugodi, Bengaluru-560030.
Represented by Power Agent/
subrogee M/s.United India Insurance
Co.Ltd., Divisional Office - III, 24,
Classic Building, Richmond Road,
Bengaluru by their Divisional
Manager.
2. M/s. United India Insurance Co.Ltd.,
Divisional Office III, No.24, Classic
Building, 1st Floor, Richmond Road,
Bengaluru-560 025. Represented by
their Divisional Manager.
(By Sri.P.S.Ranganathan, Advocate)
/ VERSUS /
/2/ O.S.No.1910/2012
DEFENDANT :
M/s. Jamnagar Transport Co., Admn &
HO. Sarangpur, Lokhand Bazar,
Ahmedabad - 180 002.
(Ex-parte)
***
Date of institution of the suit : 15.03.2012.
Nature of suit : Suit for damages.
Date of commencement of
Recording the evidence : 22.06.2015
Date on which the judgment
was pronounced : 31.07.2015
Total duration : Year/s Month/s Day/s.
03 04 16
(N.P.Koparde)
LXI Addl. City Civil Judge,
C/c. of VIII Addl.City Civil Judge,
Bangaluru.
***
JUDGMENT
The plaintiffs have filed this suit against the defendant
- carrier, praying to hold the defendant liable and to direct /3/ O.S.No.1910/2012 the defendant to pay to the 2nd plaintiff a sum of Rs.68,140/- with interest @ 12% per annum from the date of suit till the date of realization with cost.
2. After registration of the suit, summons issued to the defendant. In spite of service of summons, defendant remained absent. So, it was placed ex-parte.
3. The plaintiffs in order to prove their case examined its Administrative Officer of 2nd plaintiff Smt.Yamuna as P.W.1 and got marked in all 11 documents at Exs.P.1 to P.11 and closed its side.
4. I have heard the arguments of plaintiffs. Perused the materials placed on record.
5. The following points arise for consideration :
1) Whether the plaintiffs prove that the defendant-carrier failed to deliver the suit consignment at the destination and /4/ O.S.No.1910/2012 therefore, the plaintiffs are entitled for a sum of Rs.68,140/- with interest at the rate of 12% p.a. as prayed?
2) What order or decree ?
6. My findings on the above points are as under :
Point No.1 : Partly in the affirmative.
Point No.2 : As per the final order, for the following :
REASONS
7. Point No.1 : - It is the case of the plaintiffs that, plaintiff No.1 is the public limited company and the second plaintiff is a general insurance. The defendant is a private limited company, common carrier for reward. The first plaintiff during the course of business dispatched a their consignment of Bosch Auto Parts from Ahmedabad to their consignee M/s. DIV. Contr G.S.R.T.C. in Surat as per two invoices No.170021138 valued at Rs.62,573.41 and No.170021137 valued at Rs.893=17 both dated 24.3.2009.
/5/ O.S.No.1910/2012 The said consignment was securely packed and entrusted to the defendant - common carrier for safe carriage from Ahamadabad to Surat. In acknowledgement of such entrustment in good order and consignment, the defendant - common carrier issued Consignment Note bearing No.6973946 dated 24.3.2009 and undertook to carry and deliver the said consignment in the same good order and condition as was entrusted with them. The first plaintiff had insured the consignment with the second plaintiff vide their insurance policy bearing No.070300/21/08/00297. It is further contended that the defendant - carrier failed to deliver the consignment and thereby committed breach of their statutory obligation. The first plaintiff who is the owner of the said consignment at all relevant times issued a statutory notice of loss to the defendant dated 25.8.2009 about the loss and claiming loss amount from the defendant. Said notice of loss was duly served on the defendant on the /6/ O.S.No.1910/2012 same day vide their endorsement on the office copoy of the notice of loss under their clear seal and signature. The defendant issued certificate dated 3.8.2009 admitting the fact of non-delivery of the suit consignment and the value of the loss also. On account of non-delivery of consignment by the defendant, plaintiff suffered loss of Rs.68,140/- being proportionate invoice value of non-delivery of consignment. The defendant - carrier admitted the fact of their non- delivery by issuing a certificate on 3.8.2009 and liable to pay value of the non-delivery of consignment as a common carrier for reward. The second plaintiff indemnified the 1st plaintiff claim under the insurance policy and paid them a sum of Rs.51,480/- vide settlement intimation voucher 28.10.2009 and Rs.16,660/- vide settlement intimation voucher dated 25.11.2009. Upon such indemnification, the 1st plaintiff executed a letter of subrogation and special power of attorney in favour of 2nd plaintiff on 19.11.2009 /7/ O.S.No.1910/2012 thereby subrogating its rights in favour of the 2nd plaintiff. So, the 2nd plaintiff is entitled to file and maintain the suit in their own name, but to avoid technical objections, the suit has been filed by both the plaintiffs. The plaintiffs have no objection for decree being passed in favour of the 2nd plaintiff or in favour of both the plaintiffs. The 2nd plaintiff had entrusted claim papers to their recovery agents M/s. VMC Claims Consultancy and the recovery agent sent a claim letter dated 19.4.2011 to the defendant calling upon the defendant to compensate the loss. Said letter was served on the defendant, but the defendant failed to settle their claim. Hence, the plaintiffs are constrained to file this suit.
8. P.W.1 reiterated the averments of the plaint contending that on account of the negligence by the defendant, plaintiffs suffered loss to the tune of Rs. 68,140/- on account of the non-delivery of the consignment by the /8/ O.S.No.1910/2012 defendant. So, it is liable to pay an amount of Rs. 68,140/- with interest at the rate of 12% p.a. The plaintiffs to substantiate their case got marked in all 11 documents. The evidence of P.W.1 remained un-rebutted, unimpeached and uncontroverted. Therefore, I have no other way to accept the contention of the plaintiffs. Moreover, the evidence of witness in my opinion is a credible and inspire the confidence in the mind of the Court. The plaintiffs have produced Exs.P.1 to P.11 :
1 Ex.P.1 : Invoice No.17002113724 issued by the 1st plaintiff to consignee dated 24.3.2009, it shows that consignment was purchased by the 1st plaintiff and sent to consignee.
2 Ex.P.2 : Invoice No.17002113824 issued by the 1st plaintiff to consignee dated 24.3.2009, it shows that consignment was purchased by the 1st plaintiff and sent to consignee.
2 Ex.P.3 : Consignment note issued by the defendant dated 24.3.2009, it discloses that the goods/consignment were entrusted by the 1st plaintiff to the defendant - carrier. 3 Ex.P.4 : Office copy of notice of claim for compensation, it reveals that the 1st plaintiff issued /9/ O.S.No.1910/2012 the notice of claim for compensation to the defendant regarding non-delivery of consignment.
4 Ex.P.5 :Survey report.
5 Ex.P.6 : Claim bill dated 24.3.2009 made by the 1st plaintiff to 2nd plaintiff.
6 Ex.P.7 - Settlement intimation voucher issued by the 1st the plaintiff to 2nd the plaintiff dated 28.10.2009, which shows that the 2nd plaintiff has settled claim with the 1st plaintiff for Rs.58,140/- 7 Ex.P.8 - Letter of subrogation and special power of attorney dated 10.11.2009 executed by the plaintiff infavour of 2nd plaintiff, it discloses that the 1st plaintiff has executed this letter of subrogation and special power of attorney in favour of the 2nd plaintiff by assigning the rights.
8 Ex.P.9 : Settlement intimation voucher issued by the 1st plaintiff to 2nd plaintiff.
9. Ex.P. 10 : Office copy of claim duly sent to defendant by recovery agents.
10 Ex.P.11 : Postal acknowledgment.
9. On careful perusal of the above documents produced by the plaintiffs, it becomes clear that although, the 2nd plaintiff settled claim of 1st plaintiff for Rs.58,140/- and although, the survey report does not contain regarding / 10 / O.S.No.1910/2012 the table of assessment of loss/damage, but Ex.P.4 - shortage certificate issued by the defendant itself contain the estimated value of loss at total Rs. 68,140/-. Therefore, it is safe to conclude that plaintiffs are entitled for damages of Rs.68,140/-. The oral evidence of P.W.1 coupled with documentary evidence i.e. Ex.P.1 to Ex.P.11 prove the case of the plaintiffs.
10. In so far as negligence and liability of defendant carrier is concerned: It is useful to refer a decision in NATH BROS EXIM INTERNATINAL LTD. VS. BEST ROADWAYS LTD. ((2000) 4 SCC 553), wherein the Hon'ble Apex Court of India is held that :
Consumer Protection Act, 1986- S.2(1)(d) - Carriers Act, 1865, Ss.6,8 and 9 -Defect in service- Goods entrusted to common carrier for transportation- Liability of common carrier, held, would be governed by Carriers Act- Ss.151 / 11 / O.S.No.1910/2012 and 152 of Contract Act not applicable- Liability same as that of an insurer- Carrier has to take due care of the goods as he would have taken of his own goods- He would be liable for the loss or damage cause to the goods due to this own negligence or criminal act or that of his agent or servants, notwithstanding any special contract limiting his liability as envisaged under S.6 of Carriers Act- even if the goods were booked with the carrier "at owner's risk", that would not exempt the carrier from his own negligence or that of his agent or servants-
It is further held that in a suit filed for recovery of damages, burden will not lie on the plaintiff owner to prove that the loss or damage to the goods was caused owing to negligence or criminal act of the carrier or his agent or servants by virtue of S.9 of Carriers Act- Only exception to the carrier's liability is where the loss or damage is caused / 12 / O.S.No.1910/2012 due to an act of God or enemies of the State- Goods booked by appellant with respondent common carrier "at owner's risk" for transportation-Goods, while stored in godown destroyed by fire.
Claim petition filed by the appellant before the National Commission alleging deficiency in service. But it was dismissed by taking the view that respondent would not be liable as it had taken all possible care which was expected of it as a carrier- Held, this was not the correct approach- Case remanded to National Commission for disposal afresh.
11. It is also profitable to refer another decision in between parties i.e. M/s.KARNATAKA TRANSPORT CORPORATION, BANGALORE V/S NATIONAL INSURANCE BANK LTD., BANGALORE (AIR 1999 KAR.
233), wherein the Hon'ble Karnataka High Court is held that:
/ 13 / O.S.No.1910/2012 Carriers Act (3 of 1865), S.9- Suit for loss, damage or non-delivery of goods- Negligence of carriers-Burden of proof is not on plaintiff, but on defendant-carrier to prove that there was no negligence on his part.
By holding as above, it is observed that in a suit for loss, damage or non delivery of goods filed against the carrier, the plaintiff is not required to prove negligence ordinarily. He has only to prove that goods were delivered to the carrier or entrusted to the carrier for being taken to the destination and being delivered to the consignee. He has to prove that goods were either not delivered or that they were delivered in damaged condition - Once these two facts have been established, the presumption of negligence will arise in favour of the plaintiff that there were negligence on the part of the carrier unless the defendant carrier produces evidence to rebut it and unless and until defendant carrier proves that the loss has been caused due to the act / 14 / O.S.No.1910/2012 of god and the cause for loss has not been the negligence of the carrier i.e. inevitable accident which could not be avoided in spite of best efforts and burden lie on the defendant to establish it.
12. It is also lucrative to quote another ruling in PATEL ROADWAYS LTD., V/S BIRLA YAMAHA LTD., reported in (AIR 2000 SC PAGE 1461), wherein the Hon'ble Supreme Court is held as under :
"Section 9 of Carriers Act, 1865, Common carrier
- Liability - Equivalent to that of insurer - Loss or damage to goods entrusted to carrier -Consignor need not prove negligence.
By holding thus, it is observed that the liability of a common carrier under the carriers act is that of on insurer. As per Sec. 9 of Carriers Act in case of claim of damage or loss to or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. The general principle of tortious liability that / 15 / O.S.No.1910/2012 who alleges negligence must prove has no application to a case covered under the Carriers Act.
13. It is also advantageous to refer a relevant ruling reported in ILR 2005 KAR 3403 in between BASAVARAJ YELLAPPA PUNDI VS. THE NATIONAL INSURANCE COMPANY LTD. AND ANOTHER, wherein the Hon'ble High Court of Karnataka is held as under :
"The very Section would indicate that in a claim made by the plaintiff for loss, damage or non-delivery, the plaintiffs are not required to prove negligence or criminal act in any suit filed by them against the common carrier claiming compensation, damage etc. The moment the goods are not delivered to the consignee as per the contract between the consignor and the carrier he becomes liable to pay any loss caused on account of non-delivery of the goods.
/ 16 / O.S.No.1910/2012 The rights and liabilities arising on account of the appellant carrying the goods of the consignee as a public carrier cannot be restricted or restrained by virtue of a contract.
By occurrence of the accident or under the law of the land, the carrier would be responsible for all the losses caused to the consignee if the goods are not delivered intact as they were handed over to the carrier. For all the losses caused to the consignee, the carrier alone is responsible. By virtue of insurance policy being taken in respect of the goods that were transported by the consignee in the truck of the appellant, a different relationship altogether between the insurer and the insured comes into existence. By virtue of the policy the first plaintiff becomes liable to compensate the losses caused to the second plaintiff".
14. The supra noted rulings and the principles laid down thereof made it crystal clear that the plaintiffs are not necessary to prove the negligence of defendant-carrier. The / 17 / O.S.No.1910/2012 burden of proof is on the defendant-carrier to rebut the presumption regarding negligence.
15. In so far as interest is concerned, in my considered view 6% interest per annum is just and proper under the facts and circumstances of this case. Accordingly, I answer point No.1 partly in the affirmative.
16. POINT No.2: Having regard to my above observations, my findings on the above point No.1 in affirmative, I proceed to pass the following:-
ORDER The suit of the plaintiffs against the defendant is partly decreed with costs.
The defendant is directed to pay a sum of Rs. 68,140/- as damages, with interest at the rate of 6% per annum pendentelite and future interest till the date of realization of decreed amount.
/ 18 / O.S.No.1910/2012 Draw decree accordingly.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in the open Court on this the 31st day of July, 2015).
(N.P.Koparde) LXI Addl. City Civil Judge, C/c. of VIII Addl.City Civil Judge, Bangaluru.
*** ANNEXURE List of Witnesses examined on behalf of the plaintiffs :
P.W.1 : Smt. Yamuna List of Documents marked on behalf of the plaintiffs :-
Ex.P.1 and 2 2 Invoices
Ex.P.3 Consignment note
Ex.P.4 Notice of loss with acknowledgment
Ex.P.5 Survey report
Ex.P.6 Claim Bill
Ex.P.7 Settlement intimation voucher along
with disbursement voucher
Ex.P.8 Letter of Subrogation & SPA.
Ex.P.9 Settlement voucher.
Ex.P. 10 Claim bill.
Ex.P.11 Postal acknowledgment
/ 19 / O.S.No.1910/2012
List of Witnesses examined on behalf of the Defendant :-
Nil List of Documents marked on behalf of the Defendant :-
Nil (N.P.Koparde) LXI Addl. City Civil Judge, C/c. of VIII Addl.City Civil Judge, Bangaluru.
*** Md/-
/ 20 / O.S.No.1910/2012 Judgment pronounced in open Court (vide separate judgment) with the following order :-
ORDER The suit of the plaintiffs against the defendant is partly decreed with costs.
The defendant is directed to pay a sum of Rs.68,410/- as damages, with interest at the rate of 6% per annum pendentelite and future interest till the date of realization of decreed amount.
Draw decree accordingly.
(N.P.Koparde) LXI ACC&SJ & C/C of VIII ACCJ, Bengaluru.
/ 21 / O.S.No.1910/2012