Bangalore District Court
Jindal Aluminium Limited Rollin & vs Tci Freight on 25 January, 2023
KABC010033522020
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 25 th day of January 2023
PRESENT
Sri.Sabappa, B.Com., LL.B.,(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
ORIGINAL SUIT No.877/2020
PLAINTIFFS : 1. Jindal Aluminium Limited Rollin &
Estrusion Division,
KIADB Industrial Area, Yedahalli Village,
Tumkur Road, Dabaspet,
Bengaluru - 562111.
Represented by its Subrogee/Power
Agent.
2. M/s United India Insurance Co. Ltd.,
Divisional Office X, No.21,
Museum road,
Bengaluru - 560 025.
Represented by its Principal Officer.
(By Sri. P.S. Ranganathan, Adv.,)
Versus
2 O.S.877/2020
DEFENDANTS : 1. TCI Freight,
Transport House, 1st Floor,
Kalasipalyam, New Extension,
Bengaluru - 560 002.
Represented by its Manager.
2. The Divisional Manager,
M/s New India Assurance Co.Ltd.,
301, R.G. City Center LSC,
Block B, Lawrence Road,
New Delhi - 110035.
(By Sri. A.B.H, Adv., for D-1)
Date of Institution 03.02.2020
Nature of suit Recovery of Money
Date of commencement of
evidence 10.11.2022
Date on which judgment was 25.01.2023
pronounced
Total Duration Years Months Days
02 11 22
JUDGMENT
This is a suit filed for Recovery of Money.
2. The brief facts of the plaintiffs' case is that, during the course of business transactions, plaintiff No.1 dispatched 3 O.S.877/2020 consignment of Aluminum extruded pipes from Bengaluru to their consignee's office M/s Alumayer System Pvt. Ltd., Vashi Thane District as per the invoice No.BFE 13448 dated 17.01.2019 valued at Rs.5,47,677.00. The said consignment securely packed in good order and condition was entrusted with the defendant common carrier for safe carriage and delivery at destination to their consignees at the destination. In acknowledgment of such entrustment in good order and condition, the defendant carrier issued their consignment Note bearing No.512943045 dated 17.01.2019. The 1st plaintiff's insured the same under Marine Insurance policy.
It is further submitted that, the defendant did not deliver the suit consignment in the same apparent good order and condition as was entrusted, but delivered consignment in damaged condition owing to an accident. Aluminum pipes were damaged. The 1 st plaintiff who are the owners at all the relevant times, issued a statutory notice of loss dated 05.02.2019 and the same was duly served. The defendant in response to the same issued their Certificate of Facts/Damage certificate dated 21.02.2019.
Upon such damage the plaintiffs appointed licensed and independent surveyor M/s Timeline Insurance Surveyors and Loss Assessors, a licensed independent insurance surveyor and Loss assessor to assets the loss sustained by the plaintiffs. The said surveyor conducted a detailed survey and submitted his survey 4 O.S.877/2020 report dated 08.06.2019. The plaintiffs on account of short delivery, suffered a loss of Rs.2,16,424.00 being the proportionate value of the damaged delivered by the defendant carrier. The defendant having admitted the fact of damage delivery, by issuing their certificate dated 21.02.2019 is liable to pay the value of the damage delivered consignment as a common carrier for reward. Plaintiffs submit that the damaged delivery and the consequent loss sustained by the plaintiffs ought to have been due to negligence, lack of care on the part of the defendant coupled with mis-feasance, mal- feasance and non-feasance on part of the defendant and their agents.
It is further submitted that, the defendant is called upon to disclose as to how they handled the suit consignment when they had exclusive custody of the same during transit. On 02.07.2019, the 1 st plaintiff lodged their claim on the 2nd plaintiffs under the policy of insurance. The 2nd plaintiff indemnified the 1st plaintiff's claim under the insurance policy and paid them a sum of Rs.2,16,424.00 vide their claim disbursement/settlement voucher dated 18.12.2018. Upon such indemnification, the 1st plaintiff executed a letter of subrogation and SPA in favour of the 2nd plaintiff at Bengaluru on 25.06.2019, thereby surrogating their rights in favour of the 2nd plaintiff. By virtue of the said execution of letter of subrogation and SPA and as provided U/Sec.79 of the Marine Insurance Act, the 2nd plaintiff is entitled to file and maintain the suit in their own name. But to avoid any technical objection that may be raised by the defendant, 5 O.S.877/2020 the suit is being filed by both the plaintiffs and the plaintiffs do not have any objection for a decree being passed in favour of the 2 nd plaintiff or in favour of both the plaintiffs.
It is further submitted that, the plaintiffs issued a legal notice through their counsel and the same is served on the defendant. Inspite of receipt of notice, the defendant did not come forward to settle the legitimate claim of the plaintiffs. The plaintiffs valued the relief sought for at Rs.2,16,424.00 and have paid Rs.16,880/- as court fee as per Sec.21 r/w Schedule 1 Article 1 of the Karnataka Court Fee and Suit Valuation Act. The cause of action for the suit arose at Bangalore within the jurisdiction of this Court where the defendant is carrying on business for gain, where the letter of Subrogation and SPA is executed on 25.06.2019, on 17.01.2019 when the 1st plaintiff entrusted the suit consignment to the defendant carrier at Bangalore, on 17.01.2019 when the defendant issued their consignment note for having accepted the suit consignment for transportation at Bangalore and on 5.2.2019 when the plaintiff issued their notice of loss and on 21.02.2019 when the defendant issued their damage certificate in response to the same on 08.06.2019 when the surveyor submitted his survey report assessing the loss.
It is further submitted that, there are no legal proceedings or suit either filed or pending before this or any other Court on same subject matter. Therefore, the plaintiffs pray to decree the suit 6 O.S.877/2020 against the defendant holding him liable and directing them to pay to the 2nd plaintiff as sum of Rs.2,16,424.00 towards damage with interest at the rate of 12% p.a. from the date of suit till date of satisfaction being a commercial cause.
3. After registration of this suit, this Court has issued summons to the defendants. The 1st defendant appeared through its respective counsel and filed their written statement contending that, the averments made in para No.1 to 5 of the plaint do not require to be traversed. As regards the averments made in para 6 of the plaint, it is submitted that, it is true that the plaintiff had entrusted a consignment of Aluminium Extruded Pipes to this defendant at Bangalore, for being transported and delivered to their Consignee at Vashi, Thane District. However, this defendant is not a party to taking of Insurance policy by the plaintiff No.1 from the plaintiff No.2, to cover transit risks of the said consignment. The said consignment was delivered to its consignee at destination, in the same condition as was entrusted and there was no any damage in the said consignment as alleged. The issuance of 'Damage certificate' dated 21.02.2019 does not bind this defendant in any manner, since it speaks only to condition of the consignment and such certificate was issued at the request of the plaintiff No.1.
As regards the averment in para 8 of the plaint, it is submitted that the alleged survey stated to have been conducted by plaintiff No.1 in respect of the alleged damage to the consignment. There 7 O.S.877/2020 was no notice to this defendant in respect of the alleged survey and the said survey having been conducted behind the back of this defendant. The survey report speaking to alleged loss and assessment of damage to the tune of Rs.2,16,424.00 is not binding on this defendant and it is only a collusive transaction between the plaintiff No.1 and the surveyor, to have wrongful gain and put this defendant into wrongful loss. It is submitted that the avements made in para 9 of the plaint, this defendant submits that, there was no any negligence either on their part or on the part of their servants, in carrying the said consignment. On the other hand, the said consignment was carried to destination with utmost care and caution and was delivered to its consignee in the same condition as was entrusted. As regard, the avements in made in para 10 of the plaint, this defendant submits that the alleged settlement of claim made by the 2nd plaintiff in favour of 1st plaintiff, being a collusive transaction between them. This defendant is not liable to pay any such amount to the plaintiff. Further, the letter of subrogation and SPA executed by the plaintiff No.1 in favour of plaintiff No.2 do not confer any right to plaintiff No.2 to file the above suit. It is submitted that after receipt of the legal notice, this defendant contacted the plaintiffs and narrated them and convinced them that there was no any negligence on their part in carrying the said consignment and the plaintiffs were convinced about it. Hence, no any reply was sent to the above legal notice and question of settling the alleged claim made in the said legal notice did not arise. There is no cause of action for the suit and 8 O.S.877/2020 the alleged cause of action is not correct. This court has no jurisdiction to entertain the above suit and the suit is liable to be dismissed on this ground alone. This defendant reserves right to file additional written statement on any new contention, that may be necessary to be taken in the above case, in support of their defence. Lastly, without prejudice to the aforesaid contentions, it is submitted that this defendant has taken Carriers Legal Liability Policy from their Insurer, namely the New India Assurance Co. Ltd., The above policy was in force covering the period of above consignment. Hence, if at all any decree is passed against this defendant, such decree will have to be satisfied by the above Insurer of this defendant. Hence, defendant No.1 prayed to dismiss the above suit.
4. On perusal of the records, it is noticed that this Court has issued suit summons to 2nd defendant. They remained absent. Hence, placed exparte.
5. On the basis of the above pleadings this Court has framed the following issues.
1. Whether the 1st plaintiff proves that he has authorized the defendant to deliver the Aluminium extruded pipes from Bengaluru to Vashi Thana District, in the safe manner but defendant has damaged consignment articles and cause loss of Rs.2,16,424/- ?
2. Whether the 1st plaintiff proves that he has insured said consignment articles with 2nd plaintiff and 2nd 9 O.S.877/2020 plaintiff indemnify the claim made by the 1 st plaintiff under the insurance policy Rs.2,16,424/- under voucher dated 18.12.2018 ?
3. Whether the 1st plaintiff proves that he has issued surrogated letter to the 2nd plaintiff to recover the indemnified amount from the defendant ?
4. Whether the defendant proves that he has obtained the insurance policy from New India Assurance Company under policy No.93000036181100000004 and policy is valid on as on the date of damage the articles, thereby said insurance company is liable to pay the amount ?
5. Whether the 2nd plaintiff is entitled for the relief as sought for in this suit ?
6. What Order or decree ?
6. In order to prove the case, the Deputy Manager of the 2 nd plaintiff is examined as PW.1 and got marked Exs.P.1 to P.11. The Asst. Manager of the 1st defendant is examined as DW.1 and got marked Exs.D.1 and D.2.
7. Heard the arguments of both sides. Perused the records.
8. On appreciation of the oral and documentary evidence on record, my answer to the above issues are as follows:
10 O.S.877/2020 Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : In the Affirmative,
Issue No.4 : In the Affirmative,
Issue No.5 : In the Affirmative,
Issue No.6 : As per final order;
For the following ;
REASONS
9. ISSUE NO.1 : I have gone through the pleadings,
evidence and documents. The first plaintiff specifically stated in the plaint that, he had authorized the 1st defendant to deliver the consignment of Aluminum extruded pipes from Bengaluru to Vashi, Thane District. But the 1st defendant did not deliver the suit consignment in the good order and condition and cause loss to the tune of Rs.2,16,424.00. It is further noticed that, the 1st plaintiff had obtained insurance regarding the consignment entrusted to the defendant. Later on, he has submitted the necessary application to the 2nd plaintiff for claim under insurance. The first plaintiff obtained insurance policy regarding consignment. Thereby, naturally the 2nd plaintiff being the insurance Company is liable to pay the amount claimed by the plaintiff. It is clearly evident on record. The defendant has admitted that he was entrusted the consignment to deliver the same at the destination at Vashi Thane District. However, during the course of transit period there is some damages caused to the 11 O.S.877/2020 aluminum extruded pipes. The said vehicle is met with an accident. Thereby, the articles are damaged. On this point, I would like to refer the evidence of both the parties. The Manager of the 2Nd plaintiff Company is examined in this case as PW.1. He deposed on oath stating about the facts of the case. At the same time, the 1 st defendant examined as DW.1. He has deposed in his evidence that, the 1st plaintiff had entrusted the consignment. Thereby, on the material admission of the defendant, one thing is clear that the articles entrusted to the 1st defendant is not delivered in good condition.
10. Another point to be noted here, the defendant admitted that, they have issued letter to the plaintiff regarding damage of the articles. The defendant further admitted that, the 1st plaintiff has entrusted to deliver the consignment and issued consignment letter and invoice. Those are marked as Exs.P.1 to P.5. It reveals that, the plaintiffs are able to prove the entrustment of consignment to the defendant. In view of the material admission on the part of the defendant and oral evidence and documents, it is clearly evident on record that the plaintiffs are able to prove Issue No.1 with cogent evidence and documents. Hence, I answer Issue No.1 in the Affirmative.
12 O.S.877/202011. ISSUE NO.2 :- The plaintiff clearly stated in the plaint and evidence that the 1st plaintiff has insured the consignment articles with 2nd plaintiff. Thereby, the 2nd plaintiff indemnify the claim made by the 1st plaintiff under the insurance policy. This aspect is ignored by the defendant in the written statement and evidence. However, at the time of conducting the case, the learned counsel for the defendant testified the PW.1 and elicited that, the 2nd plaintiff has appointed the surveyor to conduct the survey regarding the damage caused to the articles. Thereby, the surveyor given detailed report. The said document is marked as Ex.P.3. In order to overcome Ex.P.3 the defendant is not able to furnish any documentary evidence. At the same time, the documents marked at Ex.P.3 is the survey report. Ex.P.2 is the letter of Indemnity. These documents are sufficient to hold that the 2nd plaintiff insurance company has indemnified the amount claimed by the 1st plaintiff. Thereby, the 1st plaintiff issued letter of subrogation and SPA in favour of 2nd plaintiff. This aspect is not disputed by the defendant in the pleadings and evidence. In view of the documents at Exs.P.3, P.4 and P.5, one thing is clear that the 2nd plaintiff indemnified the amount of Rs.2,16,424/- in favour of the 1st plaintiff. Thereby, the 2nd plaintiff is empowered to recover the amount from the defendant.
12. At this stage, I would like to refer the evidence of DW.1. DW.1 has clearly stated that, he has issued the letter. The same is marked at Ex.P.8. DW.1 further admitted about the survey report. He 13 O.S.877/2020 has stated that, he do not have knowledge about the same. This goes to show that, the 1st plaintiff is able to prove this issue with documentary evidence. The entire evidence of both the parties and documents, one thing is clear that the 2nd plaintiff being the insurance company has indemnified the amount claimed by the 1 st plaintiff which is proved with oral and documentary evidence. Hence, I answer Issue No.2 in the Affirmative.
13. ISSUE NO.3 :- It is the case of the 1st plaintiff that, he has received the amount from the 2nd plaintiff, thereby, he has issued surrogated letter and SPA in favour of the 2nd plaintiff to recover the claim amount from the defendant. It is stated in the evidence and documents. At the same time, the documents relied by the plaintiff that marked at Exs.P.1 to P.8 are letter of subrogation, letter of indemnity, survey report, invoice, consignment, notice, postal receipt, certificate of fact, marin claim form, claim bills and settlement intimation voucher. These documentary evidence are coupled with the oral evidence of the PW.1. The 1st plaintiff entrusted consignment to the 1st defendant to deliver the same at the last destination place i.e., Vashi, Thane District. However, the 1st defendant during the course of transit period caused damage to the consignment. Thereby, the 2nd plaintiff being the Insurance company obtained subrogation letter from the 1st plaintiff and fulfilled the terms and conditions mentioned in the insurance policy. It is proved with cogent 14 O.S.877/2020 evidence and documents. Hence, I answer Issue No.3 in the Affirmative.
14. ISSUE NO.4 :- The defendant No.1 contended in the written statement and evidence that, he has obtained insurance policy from New India Assurance Company and the said policy is valid on the date of damage of the articles. Thereby, the 2 nd defendant is liable to pay the amount. In order to prove the same, the 1st defendant examined DW.1 and got marked Exs.D.1 and D.2. On perusal of Ex.D.1 it clearly evident on record that the DW.1 is authorized by the 1st defendant Company to appear before the court and conduct the case and to give evidence. At the same time, on perusal of Ex.D.2, it is the insurance policy standing in the name of 1st defendant Company at the relevant point of time. It is further noticed that the 1st defendant obtained the insurance policy from the 2nd defendant. The same is existing as on the date of incident. Once the policy is existing as on the date of any damage caused by the 1 st defendant company regarding consignment of articles, the 2nd defendant company is liable to pay the said amount. Here in this case, the 2nd defendant company is not ready to appear before this Court and contest the case. Thereby, the oral testimony of DW.1 and documents are sufficient to hold that the 1st defendant company had obtained insurance policy regarding consignment at the relevant point of time. The vehicle belonged to the 1 st defendant is met with an accident. Thereby, the consignment articles are damaged. It is 15 O.S.877/2020 reflected in the survey report. The same is not disputed by the defendant. Thereby, in view of the above evidence and documents, I come to the conclusion that the 1st defendant is able to prove issue No.4 with cogent evidence and documents. Thereby, the 2 nd defendant is liable to pay the amount. Hence, I answer Issue No.4 in the Affirmative.
15. ISSUE NO.5 :- In view of the above discussions, I come to the conclusion that the 1st plaintiff entrusted the consignment to the 1st defendant to deliver the same at the last destination. During the course of transit the first defendant vehicle met with an accident. Thereby, the articles are damaged. The 1st plaintiff obtained the policy from the 2nd plaintiff. Thereby, the 2nd plaintiff indemnified the claim made by the 1st plaintiff. Later on, the 1 st plaintiff issued subrogation letter and SPA in favour of the 2nd plaintiff. Thereby, the 2nd plaintiff is having right to recover the amount from the defendants. The oral evidence of PW.1 and documents are coupled with each other. The 2nd plaintiff is able to prove the case with cogent evidence and documents. On the other hand, the 1st defendant examined in this case and got marked Exs.D.1 and D.2. It is clearly evident on record that the 1 st defendant obtained insurance policy from the 2nd defendant. The 2nd defendant is also a party to the proceedings. 2Nd defendant is not ready to appear before the court and contest the case. This goes to show that, the 2 nd defendant is having knowledge about the present suit filed by the 1 st plaintiff for 16 O.S.877/2020 recovery of money regarding damage of the consignment entrusted to the 1st defendant when the policy is existing as on the date of accident. Thereby, the 2nd defendant insurance company is liable to pay the damages as stated by the plaintiff in this case. Hence, I answer Issue No.5 in the Affirmative.
16. ISSUE NO.6: In view of my findings on Issues No.1 to 5, I proceed to pass the following :
ORDER The suit of the plaintiffs is hereby decreed with costs.
The 2nd defendant is directed to pay the amount of Rs.2,16,424.00 along with interest at the rate of 6% p.a from the date of suit till the date of realization to the 2 nd plaintiff.
It is further ordered that, the 2nd defendant is liable to pay the amount within 3 months from the date of this order. Otherwise, the 2nd plaintiff is at liberty to proceed against the 2nd defendant by following due process of law.17 O.S.877/2020
Draw decree accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court on this the 25 th day of January, 2023) (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
PW.1 Smt. Samanthi.M 10.11.2022 DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:
Ex.P.1 : Letter of subrogation,
Ex.P.2 : Letter of indemnity,
Ex.P.3 : Survey report,
Ex.P.4 : Invoice,
Ex.P.5 : Consignment,
18 O.S.877/2020
Ex.P.6 : Notice of loss,
Ex.P.7 : Postal receipt,
Ex.P.8 : Certificate of fact,
Ex.P.9 : Marin claim form,
Ex.P.10 : Claim bills,
Ex.P.11 : Settlement intimation voucher.
WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT:
DW.1 Girish Kumar Ajariwal 13.01.2023 DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANT:
Ex.D.1 : Special Power of Attorney, Ex.D.2 : Policy of New India Assurance Company.
(SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.19 O.S.877/2020 20 O.S.877/2020
JUDGMENT PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE ORDER The suit of the plaintiffs is hereby decreed with costs.
The 2nd defendant is directed to pay the amount of Rs.2,16,424.00 along with interest at the rate of 6% p.a from the date of suit till the date of realization to the 2nd plaintiff.
It is further ordered that, the 2nd defendant is liable to pay the amount within 3 months from the date of this order. Otherwise, the 2nd plaintiff is at liberty to proceed against the 2nd defendant by following due process of law.
Draw decree accordingly.
LXVIII A.C.C & S.J, Bengaluru City.