Bangalore District Court
) The New India Assurance Co. Ltd vs ) Om Logistic Ltd on 18 October, 2016
BEFORE THE COURT OF THE SMALL CAUSES JUDGE;
B'LORE (SCCH-17)
DATED THIS THE 17th DAY OF OCTOBER 2016
PRESENT; Sri.A.SAMIULLA, B.Sc. LL.B,
XIX Addl SCJ & XLI ACMM.
S.C.No.951/2015
PLAINTIFF: 1) The New India Assurance Co. Ltd.,
Regional Office,
P.Kalinga Roa Road,
Bengaluru- 560 027
2) M/s Electronic Relays (India)
Pvt. Ltd., P.B.No.2254, 93.A.INDL.
Suburb 2nd Stage,
Yeshwanthpur,
Bangalore-560 022.
(By Sri.CRR)
V/s
DEFENDANTS: 1) OM Logistic Ltd.,
No.130, Punjab Bagh,
Ring Road, New Delhi-35.
2) M/s.Honda MotorLtd.,
Plot No.A-1 Sector 40/41,
Surajpur Kasna Road,
Gautam Budh Nagar,
Greater Noida, Uttara Pradesh.
(D-1 by Sri.BBC
D-2 ex parte)
SCCH 17 2 SC.No.951/15
J U D G M E N T
Suit is filed for recovery of 57,673/- rupees with interest @ 12 per cent per annum.
2. The say of plaintiffs is that, the first plaintiff is carrying on the business in general insurance and second plaintiff is the manufacturer of electronic solid state relays. First defendant is a common carrier carrying on the business of transporting goods from place to place on hire and to whom the goods entrusted for transportation. Second defendant is the consignee to whom the solid state relays was sent, who is a pro forma defendant and no relief is claimed against it.
3. The second plaintiff as per the orders of the second defendant dispatched a consignment of 490 electronic SCCH 17 3 SC.No.951/15 relays as indicated in the invoice No.449, 481 & 487 respectively from Bengaluru to Greater Noida, Uttar Pradesh on 26.06.12, which was entrusted to first defendant carrier for transporting the same from Bengaluru to Greater Noida and for delivery to second defendant, who accepted it and issued a lorry receipt No.9510253 dated 26.6.12 indicating invoice numbers and goods were valued at Rs.58,673/-. The consignment was properly packed and was in sound condition at the time it was entrusted to defendant carrier.
4. The second plaintiff had obtained a marine cargo open policy from first plaintiff covering their dispatches for transit risk such as non delivery, shortage, damage etc., in transit, and policy bears No.67030321120200000005 dated SCCH 17 4 SC.No.951/15 26.5.12. As required under policy terms and condition second plaintiff had declared the dispatched consignment, which was loaded into truck bearing No.HR-38R-221. The truck did not reach the place of destination Greater Noida and goods were not delivered to the second defendant the consignee. The first defendant issued a certificate dated 18.11.12 to the effect that the goods entrusted for transportation was lost in transit.
5. The second plaintiff the insured intimated the first plaintiff about loss of consignment in transit and non delivery of consignment to second defendant by the carrier and made a claim in terms of the policy, which was settled by the first plaintiff by paying Rs.57,673/- to second plaintiff in full and final settlement of their claim.
SCCH 17 5 SC.No.951/15 Thereafter, the first plaintiff has been subrogated to the rights of second plaintiff by executing a letter of subrogation and also a special power of attorney.
6. The first defendant to whom the goods were entrusted for transportation was responsible for safe transport and timely delivery of goods to the second defendant and the liability of carrier under Carriers Act is absolute for any damage or loss to goods while it is in the custody of carrier or in transit and they are liable to make good the loss suffered by the owner of the goods. On account of non delivery of goods second plaintiff suffered loss which first defendant is liable to pay. Hence suit is filed.
SCCH 17 6 SC.No.951/15
7. First defendant contested the suit by filing written statement. Second defendant remained absent consequently it was placed ex parte.
8. First defendant contended that the suit is hit by the provisions of Section 16 of the Carriage by Road Act for non issuance of notice. No valid authority passes on to the first plaintiff to file the suit for and on behalf of second plaintiff, who has no locus standi to file the suit. By denying the plaint averments in toto, inter alia it contended that, the consignment was intact at the time of booking and it was never brought to the notice of first defendant that it consists of 490 electronic relays. It was booked at the owner's risk and the plaintiff has not paid any amount for insurance etc., for transit. It denied the value of SCCH 17 7 SC.No.951/15 consignment. Among these grounds it prays to dismiss the suit.
9. Following issues arise for consideration:
1) Whether plaintiffs prove that they are entitle for recovery of Rs.57,673/- from the first defendant as prayed?
2) Whether plaintiffs prove that they are entitle for interest @ 12 per cent per annum?
3) What relief plaintiffs are entitle for?
4) What order or decree?
10. To prove the case, first plaintiff examined it's Manager as P.w1 and documents Ex.P1 to 10 were marked. Whereas the first defendant examined it's Branch Manager as D.w1 and documents Ex.D1 & 2 were marked.
11. Heard arguments from plaintiffs. First defendant filed written arguments.
SCCH 17 8 SC.No.951/15
12. Answer to the above points are as follows;
Issue-1: Affirmative;
Issue-2: Affirmative;
Issue-3: Partly affirmative.
Issue-4: As per final order, for the following:
REASONS
13. Issue-1: Plaintiffs asserted that, the consignment not reached the place of destination and goods not delivered to the second defendant the consignee, as such first defendant is liable to make good the loss. Per contra the first defendant contended that the consignment was booked at owner's risk and not on Carrier's risk, as such it is not liable to pay any sum. In the backdrop of contentions supra let us scrutiny the proof made available by the respective parties to unearth whose contention holds the ground.
SCCH 17 9 SC.No.951/15
14. On careful scrutiny of rival pleadings one can see that absolutely there is no dispute that the second plaintiff booked consignment with the first defendant and its non delivery to the consignee. In addition to pleadings these facts can be gathered in the cross-examination of D.w1, wherein he admits that, consignment was sent through the first defendant courier, its non delivery to the consignee and the issuance of non delivery certificate by the first defendant as per Ex.P3.
15. Before harping upon the fact in issue i.e., whether first defendant is liable to pay damages to the first plaintiff, let us consider the contentions raised by the first defendant which touches the very maintainability of suit. First, it is contended that no valid authority passes on to SCCH 17 10 SC.No.951/15 the first plaintiff to file present suit and second plaintiff has no locus standi to file the suit. This contention is not tenable because here the first plaintiff settled the claim of second plaintiff by paying Rs.57,673/- to second plaintiff in full and final settlement. The second plaintiff transferred to the first plaintiff an actionable right of the insured against the person who is liable to pay. In lieu of the complete assignment of right accrued to the consignee i.e., the second plaintiff in favour of the insurer under subrogation letter Ex.P7, the first plaintiff has complete right to claim damages from the carrier. In addition to this in the instant case the consignor of goods is the transferor of the rights under Ex.P9 (subrogation letter). Further an insurance company is entitled to subrogation in accordance with the provisions of Section 79 of the Marine Insurance SCCH 17 11 SC.No.951/15 Act 1963. Section 130 of the Transfer of Property Act deals with transfer of actionable claim.
16. Second, it is contended that the suit is not maintainable for want of statutory notice as envisages under Section 10 of Carriers Act. This contention is not sustainable because the object behind the issuance of notice before institution of suit is to bring to the notice of carrier about the loss or damage to the goods or non delivery of goods to the consignee. In the case on hand the goods are not delivered to the consignee and it is admitted by the carrier by issuing certificate of facts produced at Ex.P3. This document manifest that the carrier has the knowledge of non delivery of consignment. Ex.P3 depicts that the carrier had the knowledge of non delivery of goods;
SCCH 17 12 SC.No.951/15 as such the contention of non issue of notice holds no water. In a decision reported in Oriental Insurance Company and another V/s Vaishali Transport Forwarding Agency (ILR 1987 KAR 2870) the Hon'ble High Court at para 12 held that, the respondent has not delivered goods at all. So non- delivery of goods is within his knowledge. He exhibited such knowledge by giving a non delivery certificate dated 7.8.1987. Hence plea of non-issue of notice is only hyper technical. In the case on hand also the carrier has the knowledge of non-delivery and it issued non delivery certificate dated 18.11.2012.
17. Third, it is contended that the goods carried at the owner's risk, which is clearly indicated in consignee note; as such the first defendant is not liable to pay any sum. In a decision reported in ILR 1997 KAR 2870 (Inter State SCCH 17 13 SC.No.951/15 Transport v/s Pfizer Ltd.) the Hon'ble High Court held that, the effect of Section 6 & 8 of the Act is, that a common carrier is liable for loss and damage caused due to its negligence or misconduct of its agents or servants, and that liability cannot be limited by contract. Therefore, it is futile to contend that the liability for any damages due to negligence or misconduct on the part of the defendant, its employees, servants and agents is excluded by a clause more particularly specified in the G.C Note. The condition that "the goods to be sent at owner's risk and that no responsibility would be taken in the case of fire or accident"
do not and cannot protest a common carrier if the damages flowed from its negligence or misconduct. So it was incumbent on the defendant to prove that there was no negligence or misconduct on its part.
SCCH 17 14 SC.No.951/15
18. In the case on hand the consignment is not delivered. It is admitted by the carrier. Here, carrier has not pleaded and proved that there was no negligence or mis conduct on its part. In addition to this the Section 9 of Carriers Act, 1865 envisages that, in case of loss, damages or non- delivery of the goods delivered to the carrier or entrusted to the carrier for carriage to a particular destination, it is to be presumed as a necessary implication of law that loss, damages or non-delivery was due to the negligence etc., of the carrier of his servants or agents, unless and until the defendant carrier proves that the loss has been caused due to the act of God and the cause for loss has not been the negligence of the carrier.
SCCH 17 15 SC.No.951/15
19. Coming to the merits of the case, in the instant case, the plaintiffs demonstrated that the goods were entrusted to the carrier for being taken to the destination and being delivered to the consignee. They also proved that the goods were not delivered to the consignee. As stated supra these two facts are undisputed. Hence statutory presumption of negligence will arise in favour of the plaintiffs that there was negligence on the part of the carrier, which is to be rebutted by the carrier. Here, carrier the first defendant has not even attempted to rebut the said presumption. Thus presumption stands un rebutted. In this background the first defendant being carrier of consignment, which is not delivered to the consignee is liable to pay a sum of Rs.57,673/- to the first plaintiff, who paid the said sum to SCCH 17 16 SC.No.951/15 the second plaintiff as an insurer. Hence issue-1 is answered in affirmative.
20. Issue-2: Plaintiffs claim interest at the rate of 12 per cent per annum. This Court already opined that the first defendant is liable to pay a sum of Rs.57,673/- to the first plaintiff. Thus, having regard to the facts and circumstances of the case this Court is of the opinion that if pendent lite and future interest @ six percent per annum is awarded it will meet the ends of justice. Accordingly, this issue is answered.
21. Issue-3: Findings supra manifest that the first plaintiff is entitle for recovery of Rs.57,673/- with pendent lite and future interest @ six per cent per annum from the first defendant. Accordingly this issue is answered.
SCCH 17 17 SC.No.951/15
22. Issue-4: By virtue of above findings, Court proceeds to pass the following:
ORDER Suit is decreed in part with costs. First Defendant firm is hereby directed to pay a sum of Rs.57,673/- with pendent lite and future interest @ six per cent per annum from the date of suit till its realization to the first plaintiff firm within 30 days from the date of this judgment.
Draw decree accordingly.
(Dictated to the Stenographer, the transcript thereof is corrected and then pronounced by me in the Open court, this the 17th day October, 2016) (A.SAMIULLA) XIX ADDL.SCJ, BANGALORE.
SCCH 17 18 SC.No.951/15
A N N E X U R E
LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PLAINTIFF & DEFENDANT: FOR PLAINTIFF:
P.W.1: Sri.Dinesh.V.S. DOCUMENTS:
Ex.P.1 Lorry receipt
Ex.P.2 Claim Form
Ex.P.3 Damage Certificate
Ex.P.4 Letter written by Electronic Release India Ltd.
Ex.P.5 Claim Intimation
Ex.P.6 Declaration
Ex.P.7 Acknowledgment of Payment
Ex.P.8 Letter of Subrogation
Ex.P.9 Indemnity Bond
FOR DEFENDANT:
D.W.1 Sri.Nagaraj.
DOCUMENTS:
Ex.D.1 Authorisation letter.
Ex.D.2 Consignment note.
(A.SAMIULLA)
XIX ADDL.S.C.J,
BANGALORE
SCCH 17 19 SC.No.951/15
S.C.C.H.NO.17
IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
S.C.No.951/2015 PLAINTIFF: 1) The New India Assurance Co. Ltd., Regional Office, P.Kalinga Roa Road, Bengaluru- 560 027
2) M/s Electronic Relays (India) Pvt. Ltd., P.B.No.2254, 93.A.INDL.
Suburb 2nd Stage, Yeshwanthpur, Bangalore-560 022.
(By Sri.CRR) V/s DEFENDANTS: 1) OM Logistic Ltd., No.130, Punjab Bagh, Ring Road, New Delhi-35.
2) M/s.Honda MotorLtd., Plot No.A-1 Sector 40/41, Surajpur Kasna Road, Gautam Budh Nagar, Greater Noida, Uttara Pradesh.
(D-1 by Sri.BBC
D-2 ex parte)
SCCH 17 20 SC.No.951/15
CLAIM: Suit filed on prays for directing defendant to
pay a sum of Rs. with interest % , costs and
such other reliefs.
This suit coming on for final disposal before Smt/ Sri. A. Samiulla Judge, CSC, Bangalore, in the presence of Sri/Smt Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
ORDER Suit is decreed in part with costs.
First Defendant firm is hereby directed to pay a sum of Rs.57,673/- with pendent lite and future interest @ six per cent per annum from the date of suit till its realization to the first plaintiff firm within 30 days from the date of this judgment.
And it is further ordered and decreed that defendant do pay to the plaintiff sum of Rupees being the amount towards costs.
SCCH 17 21 SC.No.951/15
Given under my hand and the seal of the Court this Day of
2016.
REGISTRAR
COURT OF SMALL CAUSES,
BANGALORE
MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee _________________________ Total of Rs.
____________________________ _ Amount payable by the defendant to the plaintiff is Rs.
Decree Drafted Scrutinised by
REGISTRAR
COURT OF SMALL CAUSES,
BANGALORE
Decree Clerk SHERISTEDAR