Bangalore District Court
) M/S.Bosch Ltd vs M/S.Rcpl Logistics Pvt.Ltd on 5 December, 2018
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
From No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY : (CCCH.11)
Dated this the 5th day of December, 2018
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No :3990/2016
PLAINTIFFS : 1) M/s.Bosch Ltd.,
Hosur Road, Adugodi,
Bengaluru-560 030.
Reptd.by Power Agent/Subrogee-
M/s.United India Insurance Co.Ltd.,
24, Classic Building, Richmond Road,
Bengaluru.
By their Administrative Officer-
Smt.Manisha Tripathi,
Aged about 25 years.
2) M/s.United India Insurance
Company Ltd.,
Divisional Office III,
24, Classic Building, Richmond Road,
Bengaluru-560 025.
By their Administrative Officer-
Smt.Manisha Tripathi,
Aged about 25 years.
(By Pleader Sri.P.S.Ranganathan)
OS.NO: 3990/2016
2
-VS-
DEFENDANT : M/s.RCPL Logistics Pvt.Ltd.,
(Formerly Raghul Cargo Pvt.Ltd.)
No.75, Madanayakanahalli,
Hobli, Makali,
Bengaluru-562 123.
Reptd.by Manager.
(Exparte)
Date of Institution of the suit : 03.06.2016
Nature of the Suit : Damages/
Compensation
Date of commencement of recording
of evidence : 29.06.2018
Date on which the Judgment was
pronounced : 05.12.2018
Year/s Month/s Day/s
Total Duration : 02 06 02
---
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
OS.NO: 3990/2016
3
JUDGMENT
This suit is filed by the Plaintiffs for recovery of a sum of Rs.74,106/- with interest at the rate of 12% per annum from the date of suit till realization and for costs of the suit.
2) The brief facts of the Plaintiffs' case are that, the first Plaintiff is a Public Limited Company incorporated under the Companies Act,1956 having its registered office at Bengaluru and is duly represented by the second Plaintiff.
The second Plaintiff is a Public Limited Company incorporated under the Companies Act, 1956 having its registered office at Chennai and its Divisional Office at Bengaluru and is duly represented by its Principal Officer.
The Defendant is a Private Limited Company incorporated under the Companies Act, having its registered office at New Delhi and carrying on its business at Bengaluru amongst other places.
OS.NO: 3990/2016 4 The Plaintiffs have stated that, the first Plaintiff during the course of its business, dispatched the consignment of Assembly of service parts from Pune to its office at Jaipur as per its Stock Transfer Invoice bearing No.534337115 dated 05.06.2013 valued at Rs.1,44,40,231.11. The said consignment was securely packed and the same was entrusted to the Defendant carrier for safe carriage and delivery at the place of the consignee at Jaipur. In acknowledgment of such entrustment, the Defendant carrier issued its Consignment Note bearing No.0633756 dated 05.06.2013 and undertook to care for, carry and deliver the said consignment in the same apparent good order and condition as was entrusted to it. The first Plaintiff being the owner of the consignment, insured the same with the second Plaintiff under policy of insurance bearing No.070300/21/12/02/00000036. The Plaintiffs have further stated that, the Defendant short delivered OS.NO: 3990/2016 5 the consignment at destination on 08.06.2013. The first Plaintiff being the owner of the consignment, issued a statutory notice of loss to the Defendant on 08.06.2013 informing the Defendant about the loss and claiming loss amount from the Defendant. The Defendant acknowledged the receipt of the notice and issued its Certificate bearing No.1457 dated 08.07.2013 admitting short delivery and value of loss. The Plaintiffs have also stated that due to short delivery of consignment, the first Plaintiff suffered loss of Rs.74,106/-. The Plaintiffs have sated that the Defendant is liable to pay the value of short delivery of consignment as he is a common carrier for reward and the short delivery of consignment sustained by the Plaintiff was due to negligence of the Defendant. The Plaintiffs have further stated that, the first Plaintiff lodged its claim before the second Plaintiff under Policy of Insurance and the second Plaintiff indemnified the first Plaintiff and paid a sum of Rs.74,106/- vide its Settlement Intimation Voucher OS.NO: 3990/2016 6 dated 20.09.2013. Upon such indemnification, the first Plaintiff executed a Letter of Subrogation and Special Power of Attorney in favour of the second Plaintiff at Bengaluru on 08.11.2013 by subrogating its right in favour of the second Plaintiff. By virtue of letter of subrogation as provided under Section 79 of Marine Insurance Act, the second Plaintiff is entitled to file and maintain a suit in its own name. But to avoid any technical objection that may be raised by the Defendant, the suit is being filed by the Plaintiffs jointly. Hence, prays for decree in favour of the second Plaintiff.
3) The Defendant has failed to enter its appearance in spite of service of summons to it, hence, the Defendant has been placed exparte in this suit.
4) Heard. Perused the pleadings and the records of the case placed in this suit.
5) The point that arises for my consideration is :-
OS.NO: 3990/2016 7 "Whether the Plaintiffs are entitled to the relief as prayed for?"
6) In support of the claim of the Plaintiffs, the Administrative Officer of the second Plaintiff has been examined as P.W.1 and got marked Exs.P.1 to P.17 in this suit.
7) My answer to the above point is in the affirmative for the following :
REASONS
8) The Plaintiffs in their plaint have pleaded that, the first Plaintiff during the course of its business dispatched consignment of Assembly of service parts from Pune to its office at Jaipur as per its Stock Transfer Invoice No.534337115 dated 05.06.2013 valued at Rs.1,44,40,231.11. The said consignment was securely packed and it was entrusted to the Defendant Carrier for safe carriage and delivery at the place of the consignee at Jaipur.
The Plaintiffs have further pleaded that in OS.NO: 3990/2016 8 acknowledgment of such entrustment, the Defendant carrier issued its Consignment Note No.0633756 dated 05.06.2013 and undertook to care for, carry and deliver the said consignment in the same apparent good order and condition. The Plaintiffs have also pleaded that the first Plaintiff, being the owner of the consignment, insured with the second Plaintiff under policy of insurance No.070300/21/12/02/00000036. The Plaintiffs have contended that the Defendant short delivered the consignment entrusted to it at the destination on 08.06.2013. The first Plaintiff issued a statutory notice for the loss caused to it on 08.06.2013 by informing the Defendant about the loss caused to the first Plaintiff and claiming the loss amount. The Plaintiffs have further contended that the Defendant issued its Certificate bearing No.1457 dated 08.07.2013 admitting short delivery of consignment and the value of loss. The Plaintiffs have also contended that the first Plaintiff suffered loss of Rs.74,106/- due to the short delivery and OS.NO: 3990/2016 9 consequent loss sustained by the first Plaintiff is due to negligence, lack of care on the part of the Defendant. The Plaintiffs have also contended that the first Plaintiff lodged its claim before the second Plaintiff under Policy of Insurance and the second Plaintiff indemnified the loss caused to the first Plaintiff and paid the first Plaintiff a sum of Rs.74,106/- vide its Settlement Intimation Voucher dated 20.09.2013. Upon such indemnification, the first Plaintiff executed a Letter of Subrogation and General Power of Attorney in favour of the second Plaintiff, at Bengaluru on 08.11.2013. The Plaintiffs have contended that by virtue of execution of letter of subrogation and Special Power of Attorney provided under Section 79 of Marine Insurance Act, the second Plaintiff is entitled to file and maintain a suit in its own name, but to avoid technical objections, this suit is being filed jointly by both the Plaintiffs. The first Plaintiff has no objection for the decree being passed in favour of the second Plaintiff.
OS.NO: 3990/2016 10
9) The second Plaintiff has examined its Administrative Officer as P.W.1, who has reiterated the plaint averments on oath in his examination-in- chief. The second Plaintiff has produced 17 documents in support of its case, which are marked as Exs.P.1 to P.7.
Ex.P.1 is the Authorization letter dated 29.06.2018, wherein, the second Plaintiff authorizes its Administrative Officer to appear before the court in this suit, hence, it can be said that the second Plaintiff has been duly represented in this suit. Ex.P.2 is the Letter of Subrogation and Special Power of Attorney executed by the first Plaintiff to the second Plaintiff by subrogating the right, title and interest of the first Plaintiff in favour of the second Plaintiff. The first Plaintiff executed Ex.P.2 in consideration of Rs.74,106/- having received by the first Plaintiff from the second Plaintiff, where under, the first Plaintiff authorizes OS.NO: 3990/2016 11 the second Plaintiff to initiate legal action against the Defendant for recovery of Rs.74,106/-. Exs.P.3 to P.11 are Stock Transfer Invoices bearing No.534337115 dated 05.06.2013 issued by the first Plaintiff, wherein, the first Plaintiff described the consignment which was to be delivered to its office at Jaipur and also mentioned its value. Ex.P.12 is the Consignment Note (Way Bill) bearing No.0633756 dated 05.06.2012 issued by the Defendant. Ex.P.13 is the notice of claim for compensation dated 08.06.2013 for value of loss of consignment issued by the first Plaintiff to the Defendant. Ex.P.14 is the Certificate for Goods booked dated 08.07.2013 issued by the Defendant, wherein, the Defendant assessed the loss of short delivery. Ex.P.15 is the Settlement Intimation Voucher dated 20.09.2013, wherein, the first Plaintiff acknowledged receipt of Rs.74,106/- from the second Plaintiff. Ex.P.16 is the letter issued by the Recovery Agent to the Defendant, wherein, the value of short delivery of consignment has been OS.NO: 3990/2016 12 assessed at Rs.74,105.52. Ex.P.17 is the Notice issued by the Recovery Agent to the Defendant, wherein, the Recovery Agent submitted claim of Rs.74,106/- with the Defendant.
10) On perusal of the documentary evidence makes it clear that, the first Plaintiff delivered its consignment to its Office at Jaipur vide Exs.P.3 to P.11 through Defendant Carrier. This has been established at Ex.P.12-Consignment Note (Way Bill). Exs.P.13, P.14, P.16 and P.17 establish the fact of shortage of consignment to the extent of Rs.74,106/-. Ex.P.15 substantiates the fact that the second Plaintiff being the insurer of the first Plaintiff, indemnified the value of short of consignment to the first Plaintiff. Ex.P.2 establishes that the right of the first Plaintiff to claim the value of short of consignment has been subrogated to the second Plaintiff and the first Plaintiff has also authorized the second Plaintiff by signing Special Power of Attorney. Based on Ex.P.2, the second OS.NO: 3990/2016 13 Plaintiff has filed this suit against the Defendant for the value of loss of consignment which amount has already been paid to the first Plaintiff by the second Plaintiff. Here, the question that arises is, whether the first Plaintiff can subrogate his right of claim to the second Plaintiff and on the basis of subrogation, the second Plaintiff can initiate legal action against the Defendant? At this juncture, it is relevant to mention Section 79 of the Marine Insurance Act 1973. Section 79 deals with right of subrogation. It reads as follows :
"(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., he 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 rights and remedies of the assured in and in respect of that subject-matter as from the time of the casually causing the loss.
(2) Subject to the foregoing provisions, where the insurer pays for a partial loss, he acquires no title to the subject-matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the assured in and in respect of the subject-
matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified, according to this Act, by such payment for the loss."
OS.NO: 3990/2016 14 Section 79 of the Act specifically states that, where the insurer pays for a total loss either of a whole or in the case of goods of any apportionable part of the subject matter insured, the insurer is thereupon subrogated all rights and remedies of the assured.
11) The Plaintiffs have placed reliance on the following decisions in support of their contention :
(1) (2010) 85 ACJ 2288 [Economic Transport Organizatin Vs. M/s.Charan Spinning Mills (P) Ltd.& Anr. ] Wherein it has been held that :
" Doctrine of Subrogation - Scope and ambit of - Subrogation, as an equitable assignment, is inherent, incidental and collateral to a contract of indemnity, which occurs automatically, when the insurer settles the claim under the policy, by reimbursing the entire loss suffered by the assured - It need not be evidenced by any writing- But where the insurer does not settle the claim of assured fully, by reimbursing the entire loss, there will be no equitable assignment of the claim enabling insurer to stand in the shoes of the assured, but only a right to recover from the assured, any amount remaining out of the compensation recovered by the assured from the wrongdoer, after the assured fully recovers his loss - To avoid any dispute with the assured as to the right of subrogation and extent of its rights, the insurers usually reduce the terms of subrogation into writing in the OS.NO: 3990/2016 15 form of a Letter of Subrogation which enables and authorizes insurer to recover the amount settled and paid by insurer, from the third party wrong-doer as a Subrogee-cum-Attorney-When the Insurer obtains an instrument from the assured on settlement of the claim, whether it will be a deed of subrogation, or subrogation-cum- assignment, would depend upon the intention of parties as evidenced by wording of the document-The title or caption of the document, by itself, may not be conclusive-It is possible that the document may be styled as 'subrogation' but may contain in addition an assignment in regard to the balance of the Claim, in which event it will be a deed of subrogation-cum-assignment-It may be a pure and simple subrogation but may inadvertently or by way of excessive caution use words more appropriate to an assignment - If the terms clearly show that the intention was to have only a subrogation, use of the words "assign, transfer and abandon in favour of" would in the context be construed as referring to subrogation and nothing more."
(2) 2004-2-L.W.- 663 [ Bond Food Products Vs. Planters Airways], which deals with difference between subrogation and assignment.
In both the decisions, the principles of law of subrogation have been ingrained, which is aptly applicable to the case of the Plaintiffs. Hence, in view of Section 79 of the Act and the principles as laid down in the decisions sated supra, this court OS.NO: 3990/2016 16 comes to the conclusion that the second Plaintiff is having right to institute this suit for the value of loss of short delivery of consignment against the Defendant.
12) The next important question is, as to what extent the Defendant can liable for the short of delivery of consignment? Admittedly, the Defendant is a Carrier. It undertakes to deliver the goods to the destination which it agrees. Ex.P.12 Way Bill substantiates this fact. At this juncture, it is relevant to mention Section 9 and 10 of the Carriers Act.
Section 9 and 10 of Carriers Act rads as follows :
"9. Plaintiffs, in suits for loss, damage, or non-delivery, not required to prove negligence or criminal act - In any suit brought against a common carrier for the loss, damage or non-delivery of [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.
OS.NO: 3990/2016 17
10. Notice of loss or injury to be given within six months.- No suit shall be instituted against a common carrier for the loss of, or injury to [goods including container, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to be knowledge of the plaintiff."
13) Here, in this case, the Defendant has admitted the short of consignment to the extent of Rs.71,225/- in Ex.P.12, Way Bill and Certificate at Ex.P.14. Moreover, the Defendant undertook to deliver the consignment to the destination. Then it is the duty of the Defendant to deliver the consignment in good order and condition during the period of undertaking. If the Defendant fails to do so, the liability would be fastened on the Defendant to reimburse the value of loss of consignment. Section 9 of the Carriers Act deals with rebuttable presumption of law which states that it shall not be necessary for the Plaintiffs to prove that, loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his OS.NO: 3990/2016 18 servants or agents. As per Section 9 of the Carriers Act, the burden lies upon the Defendant to prove that, the loss, damage or non delivery of the goods is not on the part of the Defendant. Under such circumstances, it shall be presumed that, the loss of consignment is owing to the negligence of the Defendant and therefore, he is liable to pay the same to the first Plaintiff.
14) Even the Hon'ble Supreme Court was pleased to hold in the case of Economic Transport Organization stated supra that :
" Consumer Protection Act, 1986 - Section 2(1)(g) - Deficiency" - "Deficiency" means any fault, imperfection, short-coming, or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."
Hence, the negligence of the Defendant in delivering the consignment squarely comes under the ratio laid down in the decision stated supra.
OS.NO: 3990/2016 19
15) Section 10 of the Carriers Act specifically states that, no suit shall be instituted against the Carrier unless notice in writing has been given to him before institution of the suit within six months of time, when the loss or injury came to the knowledge of the Plaintiff. Here, the consignment was sent through the Defendant on 05.06.2013, the loss of consignment was brought to the notice of the Defendant by the Plaintiff on 08.06.2013. The same was brought to the notice of the Defendant within three days from the date of short of consignment. Hence, it can be said that the suit is filed after due compliance of Section 10 of the Carriers Act.
16) For foregoing discussions, I am of the opinion that, the short of consignment has been duly proved by the Plaintiffs and the Plaintiffs have also proved the value of short of consignment, which was paid to the first Plaintiff by the second Plaintiff and thereby, the first Plaintiff's right has been OS.NO: 3990/2016 20 subrogated to the second Plaintiff in accordance with law. The negligence on the part of the Carrier has also been proved and presumption of negligence can be drawn in view of Section 9 of the Carriers Act against the Carrier. Moreover, the Plaintiffs have brought this suit after complying with the provisions of Section 10 of the Carriers Act. In view of statutory right of subrogation, Plaintiff No.2 is entitled to claim the amount from the Defendant with 12% interest per annum. Accordingly, I answer the above point in the affirmative and proceed to pass the following :
ORDER (1) The suit of the Plaintiffs is hereby decreed with costs for Rs.74,106/- (Rupees Seventy-four Thousand One Hundred and Six Only).
(2) The Defendant is hereby directed to pay a sum of Rs.74,106/-
(Rupees Seventy-four Thousand One Hundred and Six Only) to the second OS.NO: 3990/2016 21 Plaintiff with interest at 12% per annum from the date of suit till realization.
(3) Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, dated this the 5th day of December, 2018.) (RAMA NAIK) VI Addl.City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiffs side :
P.W.1 - Sri.S.K.Chandrasekara Sharma, dtd.29.06.2018
(b) Defendant's side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiffs side :
Ex.P.1 - Authorization letter dtd.29.06.2018 Ex.P.2 - Letter of Subrogation & Special Power of Attorney Exs.P.3 to P.11 - Invoice No.534337115 Dtd.05.06.2013 [ 9 Nos.] Ex.P.12 - Consignment Note Ex.P.13 - Notice of claim for compensation dtd.08.06.2013 OS.NO: 3990/2016 22 Ex.P.14 - Certificate for Goods booked under Owner's risk dtd. 08.07.2013 Ex.P.15 - Settlement Intimation Voucher, dtd.20.09.2013 Ex.P.16 - Letter dtd.19.09.2015 issued by Recovery Agent to the Defendant Ex.P.17 - Notice dtd.19.09.2015 issued by Recovery Agent to the Defendant
(b) Defendant's side : N I L
--
VI Addl.City Civil & Sessions Judge Bengaluru City.