Bangalore District Court
Bodhi Professional Solutions Pvt. Ltd vs Dtdc Courier on 6 June, 2022
1 O.S.No.444/2021
IN THE COURT OF THE LXXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE (EXCLUSIVE DEDICATED COMMERCIAL
COURT): BENGALURU CITY. (CCH-89)
Present: Sri. P.J. SOMASHEKARA, B.A.,LL.M,
LXXXVIII Addl. City Civil & Sessions Judge
Bengaluru City.
Dated this the 6th day of June 2022
Com.O.S.No.444/2021
Plaintiffs: 1. Bodhi Professional Solutions Pvt. Ltd.,
Old No.77-78, New No.92-94, 1 st Floor,
Sudhindra Building, 8 th Cross,
Malleswaram, Bengaluru-03,
Rep. by Subrogee/ Power Agent,
M/s Oriental Insurance Co. Ltd.,
Divisional Office-VII, No.1, Shankar House,
3rd Floor, RMV Extension, Mekri Circle,
Bengaluru - 80, Rep. by its Authorized
Signatory,
2. M/s Oriental Insurance Co. Ltd.,
Divisional Office-VII, No.1, Shankar House
3rd Floor, RMV Extension, Mekri Circle,
Bengaluru - 80, Rep. by its Authorized
Signatory.
(By Sri. R.P.S., Advocate)
-vs-
Defendant: DTDC Courier, DTDC House, No.3,
Victoria Road, Bengaluru - 47. Rep.by
their authorized agent, M/s Pallavi
Enterprises, by its Manager.
(By Sri. K.M.M., Advocate)
2 O.S.No.444/2021
Nature of the suit Money suit
Date of institution of the 23.06.2021
suit
Date of commencement of 24.11.2021
recording of the evidence
Date on which the 06.06.2022
judgment was pronounced
Total duration Year/s Month/s Day/s
00 11 14
JUDGMENT
This is a suit filed by the plaintiffs against the defendant for recovery of Rs.11,67,900/- with interest @ 12% p.a. from the date of the suit till its realization.
2. Nut shell of the plaintiffs case are as under:
The plaintiffs in their plaint they were alleged that the defendant is a limited company registered under the Companies Act, having office at DTDC House, No.3, Victoria Road, Bengaluru represented by its Manager, the 1st plaintiff during the course of business transactions, dispatched consignment of X-Rite Spectro photo meter from Bengaluru to their consignee's office M/s V.V. Enterprises at New Delhi as per the invoice No.BPS19-20INV0904 valued at Rs.12,98,000/- dated 19.10.2019. The said consignment securely packed in good order and condition was entrusted with the defendant common carrier for safe carriage and delivery at 3 O.S.No.444/2021 destination to their consignees at New Delhi. In acknowledgment of such entrustment in good order and condition, the defendant carrier issued consignment note bearing No.D54146698 dated 19.10.2019. The 1st plaintiff insured the same under Marine Insurance policy bearing No.421700/21/2018/80 from 14/11/2018 to 13.11.2019 and renewed policy bearing No.421700/21/2019/1/38/0002 from 14.11.2019 to 13.11.2020.
The defendant did not deliver the suit consignment in the same apparent good order and condition as was entrusted but delivered the suit consignment in pressed, de-shaped and damaged condition. The 1st plaintiff is the owner at all relevant time, issued a statutory notice of loss in November i.e. on 07.11.2019 demanding the loss as it was due to the negligence of the carrier and the same was duly served under clear postal receipt and acknowledgment and the defendant issued a damage certificate by admitting the loss on 12.11.2019.
3. The plaintiffs in their plaint they further alleged that they appointed a licensed and independent surveyor M/s Sapient Insurance surveyors and loss assessors Pvt. Ltd., to assess the loss sustained by them, the said surveyor conducted a detailed survey and submitted the survey report bearing No.SISLA/SB- 19010657 dated 21.12.2019, on account of pressed and damaged 4 O.S.No.444/2021 delivery they suffered loss of Rs.11,67,900/- being the value of the damaged delivered by the defendant carrier which stated below:
Invoice value of the loss Rs.11,00,000/-
Add: 10% expenses Rs.1,10,000/-
Less Salvage Rs.30,000/-
Less excess Rs.11,800/-
Net loss Rs.11,68,200/-
4. They were restricted their net loss to Rs.11,67,900/-. The defendant admitted the loss and it is an obligation on the defendant to make payment of the same, as the loss suffered by them ought to have due to misfeasance, malfeasance and or non-
feasance on the part of the defendant carrier or their men or agents. They have suffered loss a sum of Rs.11,67,900/-, thereby the 1st plaintiff lodged the claim form dated 07.11.2019 under the policy of the insurance by their claim form and the 2 nd plaintiff indemnified the same a sum of Rs.11,67,900/- by their discharge voucher dated 21.01.2020 by virtue of the indemnification. The 1st plaintiff executed letter of subrogation and special power of attorney in favour of the 2nd plaintiff at Bangalore as provided under Sec.79 of the Marine Insurance Act. The 2nd plaintiff is 5 O.S.No.444/2021 entitle to file and to maintain a suit in its own name, but to avoid technical objection that may be raised by the defendant the suit has been filed by them and they do not have any objection for a decree being passed in favour of the 2nd plaintiff or in their favour. Thus got issued a legal notice through counsel and same has been served with a clear postal acknowledgment to the defendant.
5. The plaintiffs in their plaint they further alleged that the value of the relief which sought by them is Rs.11,67,900/- for which they have paid the court fee as per Sec.21 r/w schedule I Article 1 of the Karnataka Court Fee and Suit Valuation Act. The cause of action for the suit which arose where the defendant is carrying on business for gain, where the letter of subrogation and special power of attorney has been executed on 30.01.2020 and when the 1st plaintiff entrusted the suit consignment as per invoice dated 19.10.2019 to the defendant carrier at Bangalore and on 19.10.2019 when the defendant issued consignment for having accepted the suit consignment in good order and condition for transportation at Bangalore and in the month of November 2019 when the 1st plaintiff issued a notice of loss and on 12.11.2019 when the defendant issued a damage certificate and on 21.12.2019 when the surveyor submitted the survey 6 O.S.No.444/2021 report assessing the loss, when they were submitted their claim bill within the jurisdiction of this court and prays for decree the suit.
6. In response of the suit summons, the defendant has been appeared through its counsel and filed the written statement in which has alleged that the plaintiffs have not approached the court with clean hands and they have suppressed the material facts having direct nexus to the facts in dispute of the case, as such the suit which filed by the plaintiff is deserved for dismissal and the para No.1 and 2 of the plaint which stated by the plaintiff do not want to comment for the same and admitted that the 2 nd plaintiff is the company during the course of business entrusted the consignment DTDC courier and Cargo Ltd., for transporting safe delivery of the same from Bangalore to consignee at New Delhi, in turn has issued a consignment note bearing No.D54146698 dated 19.10.2019 and has alleged that he was not aware of the consignment of X-Rite Spectro Photo meter from Bangalore to its consignee's destination and it is the primary duty of the 1st plaintiff to disclose the material content while entrustment of goods. The consignment entrusted is not properly, clearly packed by the 1st plaintiff for safe delivery. The packing of the particular consignment could not withstand the tilting and 7 O.S.No.444/2021 jerking movement of the vehicle during transit and there was no mention about the special instructions like handle with care on consignment. The consignment accepted solely at the owner's risk as per clause of the terms and condition of the consignment note and denied the plaintiffs who were the owners of the suit consignment at all relevant times insured the same with the 2 nd plaintiff under a policy of insurance and the plaintiffs have to strict proof of the same.
7. The defendant in its written statement has alleged that the 1st plaintiff to concur the fact did not deliver the suit consignment in the same apparent good order and condition and in case of negligence it is purely put to strict proof of the plaintiffs to prove the same and denied that the plaintiffs have issued statutory notice of loss on 07.11.2019 informing about the loss and claiming the loss amount and issued short certificate/ damage dated 12.11.2019 and who is not aware of the assessment report issued by the surveyor to assess the loss sustained by the plaintiffs. Moreover the assessment carried by the plaintiff surveyor was without application of mind and according to their whims and fancies and assessment carried by the surveyor has limited scope and they are pre-determined with facts shared by the plaintiffs and who is not party to the survey 8 O.S.No.444/2021 which alleged to have been conducted and damage assessed by the plaintiff has been done without a notice and who is not liable to pay a sum of Rs.11,67,900/- as damage assessed by the plaintiffs and it has no force in law and not binding. As such is not liable to pay the suit claim and not admitted the loss as alleged by the plaintiffs and there is no any written contract with the plaintiffs neither directly involved in the transportation of the subject consignment and he was not aware that the plaintiffs were suffered loss to the tune of Rs.11,67,900/- and not aware of the insurance claim lodged by the 1st plaintiff to the 2nd plaintiff and it is first and foremost duty of 1 st plaintiff to inform that they have indemnified by the 2nd plaintiff and transaction had taken place without its knowledge nor the consent and letter of subrogation has been issued by the 1st plaintiff to the 2nd plaintiff without taking its in-confidence and the actual damage and the amount which paid by the 2nd plaintiff to the 1st plaintiff is not binding, unless and until the 1 st plaintiff proves the actual loss and the negligence on its part and any contract or transaction that has been taken place in between the 1st and 2nd plaintiff is not binding.
8. The defendant in its written statement has further alleged that the suit of the plaintiff is not maintainable since no statutory 9 O.S.No.444/2021 notice has been issued under Sec.10 of the Carriers Act, as such the plaintiffs are not entitle any claim nor any amount as sought in the plaint and the plaintiffs are not entitled either under the common law nor under the provisions of Carries Act and as per the common law and the provisions of Carries Act was bound to carry the goods from the place of booking to the destination to deliver the same in good condition, but under the unavoidable circumstances which was beyond the control and transport authority, as such there is no negligence on its part resulting in damage or restriction of the goods which entrusted in terms of Sec.9 of the Carries Act, as such is not liable to pay any amount for damage nor the loss to the plaintiffs and insurer had paid the amount of Rs.11,67,900/- stands subrogated to the right of the consignor and the plaintiffs are entitled to recover the said sum of Rs.11,67,900/- is false and the 2 nd plaintiff has not authority or power to represent the 1st plaintiff and it is not necessary and proper party for the suit according to the plaint averments, the 1 st plaintiff has already received the claimed amount from the 2 nd plaintiff and has obtained carrier legal liability policy from its concerned insurance company, so who is not liable to pay any loss as alleged by the plaintiff and there is no cause of action to file the suit and prays for dismiss the suit with cost. 10 O.S.No.444/2021
9. On the basis of pleadings of the parties, following issues have been framed:
ISSUES 1 Does the plaintiffs are proves that the plaintiff No.1 securely packed consignment in good order and condition was entrusted with the defendant for safe carriage and delivery at destination to their consignees at New Delhi?
2 Does the plaintiffs are proves that the defendant did not deliver the consignment in the good order and condition, delivered in pressed, de-shaped and damaged condition?
3 Does the plaintiffs are proves that the loss suffered by them due to misfeasance, malfeasance and non-feasance on the part of the defendant? 4 Does the defendant is prove that no statutory notice has not been issued as per Sec.10 of Carries Act and not liable to pay any damages or loss in terms of Sec.9 of Carries Act?
5 Does the plaintiffs are entitle for the relief as sought for?
6 What order or decree?
10. The plaintiffs in order to prove the plaint averments the 2nd plaintiff has examined its administrative officer as P.W.1 and got marked the documents as Ex.P.1 to P.12 and the plaintiffs have not examined any witness on their behalf. The defendant in 11 O.S.No.444/2021 order to prove its defence has examined its Assistant Manager, Legal as D.W.1 and got marked the documents as Ex.D.1 to D.4 and the defendant has not examined any witness in its favour.
11. Heard the arguments on both sides.
12. My findings to the above issues are as under:
Issue No.1: In the Affirmative;
Issue No.2: In the Affirmative;
Issue No.3: In the Affirmative;
Issue No.4: In the Negative
Issue No.5: In the Affirmative;
Issue No.6: As per the final order for the following;
REASONS
13. ISSUE NO.1 to 4: These issues are interrelated to each other, hence in order to avoid the repetition of facts and materials on record these issues are discussed together. The 1 st plaintiff being a public limited company incorporated under the Companies Act, the 2nd plaintiff being the insurance company were approached the court on the ground the 1 st plaintiff during the course of business transaction dispatched the consignment from Bangalore to Delhi as per the invoice, but the defendant being the private limited company has not delivered the consignment to the consignee in a good condition on its negligence, thereby surveyor has been appointed who conducted the survey and submitted the report and who assessed the 12 O.S.No.444/2021 damages which caused by the defendant, though legal notice has been issued to calling upon the defendant for payment of the damage/ loss but the defendant did not do so, thereby the plaintiffs were filed the instant suit against the defendant.
14. The learned counsel for the plaintiffs in his arguments has submitted that the 1st plaintiff is a public limited company incorporated under the Companies Act and the 2 nd plaintiff being the insurance company and the 1 st plaintiff during the course of business transaction dispatched the consignment from Bangalore to New Delhi as per the invoice valued at Rs.12,98,000/- and the said consignment was securely packed in good order and condition which was entrusted to the defendant common carrier for safe carriage and delivery at their destination to their consignees at New Delhi and in acknowledgment of such entrustment in good order the defendant has issued consignment note and the 1st plaintiff has insured the same under the marine insurance policy, but the defendant did not deliver the suit consignment in the same apparent good order and condition, thereby an independent surveyor has been appointed who conducted the survey and assessed the damage, because of negligence on the part of the defendant carrier and the surveyor has assessed the loss of Rs.11,68,200/- but the plaintiffs were 13 O.S.No.444/2021 restricted their claim an amount of Rs.11,67,900/- and the defendant has been admitted the loss which caused and it is the obligation on the part of the defendant to deliver the consignment in a good condition, but he did not do so, thereby the plaintiffs were suffered the loss of Rs.11,67,900/- thereby they got issued legal notice to the defendant to calling upon to pay damages/ loss. When the defendant did not come forward to pay the loss, thereby the plaintiffs were filed the instant suit against the defendants, though the defendant has taken up the contention that the 1st plaintiff has not delivered the goods in a good condition because of negligence on the part of the 1 st plaintiff caused the damages to the consignment which is not on the negligence of the defendant, but nothing is placed on record to show that the damages has been caused due to the negligence on the part of the 1st plaintiff and moreover the defendant has issued consignment note which is evident to show that the 1 st plaintiff has delivered the consignment in a good condition, otherwise the defendant would not accepted the consignment which delivered by the 1st plaintiff to deliver the same to the consignee at New Delhi and the defendant admitted the loss which caused. That is the reason why has issued a short certificate/ damage certificate dated 12.11.2019. Therefore, the 14 O.S.No.444/2021 defendant is liable to pay the loss which caused to the plaintiffs and the plaintiffs have proved their case through oral and documentary evidence and prays for decree the suit.
15. Per contra, the learned counsel for the defendant in his arguments has submitted that the suit which filed by the plaintiffs is not maintainable in law or on facts, since the plaintiffs were not approached the court with clean hands and the plaintiffs were suppressed the material facts having direct nexus to the facts in dispute. On this ground alone, the suit which filed by the plaintiffs is deserved for dismissal, but he has admitted about the entrustment of the consignment for transporting safe delivery from Bangalore to their consignee at New Delhi and who is also admitted about issuance of consignment not in favour of the plaintiffs, but denied the loss which caused by the defendant on its negligence and the 1st plaintiff has not entrusted the consignment in a good condition. That is the reason why the damage was taken place which is on the negligence on the 1 st plaintiff not on the defendant and at the request of 1 st plaintiff alone the surveyor has been appointed who filed the survey report, but the surveyor has not submitted the report in a proper manner and as per the common law and the provisions of Carries Act, bound to carry the goods from the place of booking to the 15 O.S.No.444/2021 destination to deliver the same in good condition, but under the unavoidable circumstances which was beyond the control, as such there is no negligence on the part of the defendant company resulting damage or destruction of the goods which entrusted as per Sec.9 of the Carries Act, thereby the defendant is not liable to pay any amount as sought for and prays for dismiss the suit with cost.
16. The plaintiffs in order to prove their case, plaintiff No.2 has examined its Administrative Officer as P.W.1 who filed his affidavit as his chief-examination by reiterating the plaint averments stating that who is the Administrative Officer in the office of the 2nd plaintiff and he has acquainted with the facts of the case and who has swear the affidavit on behalf of the 2 nd plaintiff as he deposed on the basis of the records maintained in the normal and ordinary course of business transactions and authorization letter has been issued to give evidence in the instant case. The 1st plaintiff is at Bangalore who is represented by sabrogi/ power agent, the 2 nd plaintiff is the insurer who is in turn represented by their principal officer. The 1 st plaintiff during the course of business, dispatched consignment of X-Rite Spectro photo meter from Bangalore to its consignee M/s V.V. Enterprises at New Delhi as per the invoice bearing No.BPS19-20INV0904 16 O.S.No.444/2021 dated 19.10.2019 valued at Rs.12,98,000/-. The said consignment securely packed in good order and condition was entrusted with the defendant carrier for safe carriage to consignee's office at New Delhi, in acknowledgment of such entrustment in good order and condition, the defendant carrier issued the consignment note bearing No.D54146698 dated 19.10.2019 thereby undertaking to care for carry and deliver the said consignment in the same apparent good order and condition as was entrusted. The 1 st plaintiff insured the consignment under marine policy of insurance bearing No.421700/21/2018/80 from 14.11.2018 to 13.11.2019 to the policy bearing No.421700/21/2019/1/38/0002 which is validly renewed for the period from 14.11.2019 to 13.11.2020. The defendant deliver the consignment in a damaged condition at a destination. The 1 st plaintiff who is the owner of the consignment at all relevant times, issued a statutory notice of loss dated 07.11.2019 to the defendant. The defendant acknowledged the said notice under clear postal receipt and acknowledgment. The defendant issued a damage certificate dated 12.11.2019 admitting damaged delivery and loss. The 1 st plaintiff appointed Mr. Sapient insurance surveyor and loss assessors Pvt. Ltd., surveyors and loss assessor to assess the loss suffered by the 1st plaintiff, the said surveyor after detail survey 17 O.S.No.444/2021 submitted the report on 21.12.2019 stating that they were suffered the loss of Rs.11,67,900/- being the value of the damaged delivery of the consignment and the 1 st plaintiff submitted the claim bill and the 2nd plaintiff indemnified the loss to the 1st plaintiff a sum of Rs.11,67,900/-. Upon such indemnification the 1st plaintiff issued letter of subrogation on 21.01.2020 and special power of attorney. The P.W.1 in his cross- examination has denied that the plaintiff No.2 has not appointed him through the GPA to give evidence and he has admitted that the plaintiff No.1 has entrusted the consignment in a good condition to the defendant and he has not produced any document to show the plaintiff No.1 has entrusted the consignment in a good condition to the defendant and denied that the defendant has taken more care at the time of delivery of the consignment nor the entrustment and he has admitted that he has not issued any notice to the defendant about the policy, since the defendant is not party to the insurance as the company and the plaintiff No.1 are only the parties to the insurance and produced the damage certificate to show the damage of the consignment and denied at the request of the plaintiff No.1 the document which marked as Ex.P.6 has been issued only for the standard operation procedure and there is no negligence on the 18 O.S.No.444/2021 part of the defendant while delivery of the goods and the defendant is not liable to pay any of the amount which claimed and he has admitted that the plaintiff No.2 has not issued any notice to the defendant in respect of the survey, since the independent license surveyor has conducted the survey and denied the license surveyor has conducted poor performance survey, since the license surveyor was not possessing for qualification to conduct the survey and admitted that he has not produced any document to show about the qualification of the surveyor and denied the survey report which placed on record is concocted one and the defendant is not liable to pay any amount and the defendant liability as per the terms and conditions as mentioned in Ex.P.1 and they were filed the instant suit against the defendant only with an intention to harass the defendant.
17. The defendant in order to prove its defence has examined its Assistant Manager, Legal as D.W.1 who filed his affidavit as his chief-examination by reiterating the written statement averments stating that the plaintiffs have filed the instant false suit against the defendant which is liable for dismissal and the plaintiffs were not approached the court with clean hands and have suppressed the material facts having direct nexus to the facts in dispute of the case and the plaintiffs were 19 O.S.No.444/2021 taken up the contention that the 1 st plaintiff company during the course of business entrusted the consignment to the defendant DTDC Courier and Cargo Ltd., Company for transporting safe delivery of the same from Bangalore to consignee at New Delhi is not in dispute and the defendant was not aware of the consignment of the X-Rite Spectro photo meter from Bangalore to its consignee's destination and it is the primary duty of the 1 st plaintiff to disclose the material contents while entrustment of goods to the defendant and the consignment entrusted to the defendant is not properly, clearly packed by the 1 st plaintiff for safe delivery and the packing of the particular consignment not packed properly by the 1st plaintiff while entrusting to the defendant and due to non-withstand the tilting and jerking movement of the vehicle during transit and there was no mention about the special instructions like handle with care on the consignment and the consignment has been accepted by the defendant solely at the owners risk as per clause C of the terms and conditions of consignment notes and denied that the defendant did not deliver the suit consignment in the same apparent good order and condition and in handled to deliver the same in negligence and the negligence is on the part of the 1 st plaintiff and the plaintiffs have to strict proof of the same and the 20 O.S.No.444/2021 defendant was not aware of the assessment report issued by the surveyor and surveyor submitted the report without application of mind and the company is not party to the survey alleged to have been conducted by the surveyor and which is not binding on the defendant and the defendant is not aware that the plaintiffs were suffered the loss of Rs.11,67,900/- as alleged in the survey report and they were also not aware of the insurance claim lodged by the 1st plaintiff to the 2nd plaintiff and the plaintiffs are not entitle any amount as sought in the suit from the defendant, since the plaintiffs have not issued a statutory notice under Sec.10 of the Carriers Act to file the instant suit against the defendant and under the unavoidable circumstances which was beyond the control of the defendant and transport authority, as such there is no negligence on the part of the defendant and insurer had already paid an amount of Rs.11,67,900/- so question of paying the amount by the defendant to the plaintiffs does not arise.
18. The D.W.1 in his cross-examination has admitted that the defendant company is doing the business of transportation of tools from one place to another place, whenever the goods were given to company for transportation, if found in the damage condition, they will not receive the said goods and whenever the goods has been received by the company used to receive neither 21 O.S.No.444/2021 the invoice nor the bill of the goods, which is mandate on the part of the consignor, while tendering the goods for transportation. The Ex.P.1 is the invoice which was given by the plaintiff No.1, whenever the plaintiff No.1 was tender the goods for transportation and soon after receipt of the goods from the plaintiff No.1 company used to issue consignment note which marked as Ex.P.2 and the plaintiff No.1 has issued a notice as per Ex.P.3 and the defendant has acknowledged the said notice as per Ex.P.5 and denied that the defendant delivered damaged goods to the consignee because of that reason the plaintiff No.1 has been appointed a independent licensed surveyor for assessing the damage of the goods as per Ex.P.7 and denied the defendant company had delivered damaged goods, thereby not only liable to pay the claim amount but also liable to pay the interest.
19. The learned counsel for the plaintiffs while canvassing his arguments has much argued the plaintiff No.1 being the owner of the consignment has been entrusted to the defendant for transporting the same to the consignee at New Delhi in a good order and good condition, for which the defendant has also issued consignment note, but the defendant did not deliver the said consignment in a good order nor good condition, as the said 22 O.S.No.444/2021 consignment has been damaged because of the negligence on the part of the defendant, but where as the learned counsel for the defendant while canvassing his arguments has submitted that it is the primary duty of the 1st plaintiff to disclose the material contents while entrustment of the goods and the plaintiff No.1 has entrusted the consignment to the defendant is not properly, clearly packed for delivery of the same to its consignee at New Delhi. So, before considering the oral and documentary evidence on record and the arguments which advanced by both the counsel, it is just and necessary to consider the legal aspects for the proper adjudication of the issues which involved in the instant suit.
20. It is an admitted fact the plaintiffs have approached the court and sought for recovery of Rs.11,67,900/- towards damage with interest @ 12% p.a. Now the question arises, whether the initial burden of proof lies on the plaintiffs or on the defendant to prove the case. Thus this court drawn its attention on Sec.101 of the Indian Evidence Act which reads like this:
101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.23 O.S.No.444/2021
The above provision is very much clear whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
21. Now the question arises whether the burden shifts on the defendant after discharging initial burden by the plaintiff. Thus this court drawn its attention on Sec.102 of the Indian Evidence Act which reads like this:
102. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. The above provision is very much clear the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
22. The learned counsel for the defendant while canvassing his arguments has much argued the plaintiff No.1 has not 24 O.S.No.444/2021 disclosed the material content while entrustment of goods and who entrusted the said consignment was not properly/ clearly packed nor entrusted in a good condition. Now the question arises who has to prove about the special knowledge regarding the consignment which entrusted by the plaintiff No.1 to the defendant for transportation was not properly, clearly packed nor entrusted in a good condition. Thus this court drawn its attention on Sec.106 of the Indian Evidence Act which reads like this:
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him. The above provision is very much clear when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
23. The learned counsel for the defendant while canvassing his arguments has much argued that the suit of the plaintiffs is not maintainable, since no statutory notice has been issued by the plaintiffs under Sec.10 of the Carriers Act, so for the proper 25 O.S.No.444/2021 appreciation of the said provision is necessary for reproduction which reads like this:
Notice of loss or injury to be given within 6 months:- No suit shall be instituted against a common carrier for the loss of, or injury to, 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 6 months of the time when the loss or injury first came to the knowledge of the plaintiff.
So, by virtue of the provision which referred above, no suit shall be instituted against a common carrier for the loss, unless notice in writing of the loss or injury has been given before the institution of the suit within 6 months. Thus this court drawn its attention on Sec.16 of the Carriage by Road Act, 2007 which reads like this:
16 Notice for institution of a suit. No suit or other legal proceeding shall be instituted against a common carrier for any loss of, or damage to, the consignment, unless notice in writing of the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceeding and within one hundred and eighty days from the date of booking of the consignment by the consignor.
The above provision is very much clear no suit or other legal proceeding shall be instituted against a common carrier for any loss or, or damage to the consignment unless notice in writing of 26 O.S.No.444/2021 the loss or damage before the institution of the suit within 180 days from the date of booking of the consignment by the consignor. Thus by virtue of the provisions which referred above, before filing of the suit for seeking loss or the damage from the defendant, the plaintiff has to issue notice within 6 months of the time when the loss or injury first came to his knowledge and shall issue notice in writing of the loss or damage within 180 days from the date of booking of the consignment.
24. The learned counsel for the defendant while canvassing his arguments has much argued under the common law as well as provisions of the Carriers Act was bound to carry the goods from the place of booking to the destination to deliver the same in good condition, but under the unavoidable circumstances which was beyond the control of the defendant and transport authority, no negligence on the part of the defendant company resulting in damage or destruction of the goods which was entrusted.
27 O.S.No.444/2021
25. Now the question arises when the defendant is not responsible for payment of compensation/ damages or the loss where the consignment has been damaged, lost, destruction, thus this court drawn its attention on Sec.17 of the Carriage by Road Act 2007 which reads like this:
17 General responsibility of common carrier.
Save as otherwise provided in this Act, a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage, arising from any cause except the following, namely:
(a) act of God;
(b) act of war or public enemy;
(c) riots and civil commotion;
(d) arrest, restraint or seizure under legal process;
(e) order or restriction or prohibition imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorized by it in this behalf: Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery of the consignment if the common loss, destruction, damage, deterioration or non-delivery of the consignment if the common carrier could have avoided such loss, destruction, damage or deterioration or non-delivery had the common carrier exercised due diligence and care in the carriage of the consignment.
The above provision is very much clear, the defendant is not responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage arising from any cause, act of God, act of war or public enemy, riots and civil commotion, arrest, restraint or seizure 28 O.S.No.444/2021 under legal process and order or restriction or prohibition imposed by the Central Government or State Government or by an officer or authority subordinate to the Central Government or State Government authorized by it in this behalf.
26. The learned counsel the defendant has much argued that under the Carriage Act, the burden of negligence on the part of the defendant has to prove by the plaintiff through oral and documentary evidence, but the plaintiff did not do so by placing substantial materials to show the negligence is on the part of the defendant. Thus this court drawn its attention on Sec.9 of the Carriage Act, 1865 which reads like this:
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 1[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.
The above provision is very much clear in any suit brought against a common carrier for the loss, damage or non delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was 29 O.S.No.444/2021 owning to the negligence or criminal act of the carrier his servants or agents. So, by virtue of the provision which referred above, the plaintiff need not to prove the negligence on the part of the defendant. It is the defendant has to prove there was no negligence on its part for either causing loss nor the damage of the consignment.
27. Now keeping the provisions of law which referred above, let me know the oral and documentary evidence which are on record, as the P.W.1 in his evidence has clearly stated that the plaintiff No.1 has entrusted the consignment to the defendant for transit the same to its consignee M/s V.V. Enterprises at New Delhi as per the invoice dated 19.10.2019 and the said consignment has been securely packed in good order and good condition was entrusted with the defendant carrier for safe carriage to its consignee's office, but the defendant did not delivered the consignment in a good order nor good condition as the consignment has been damaged at the time of delivery of the said consignment to its consignees.
28. The learned counsel for the defendant while cross- examination of the P.W.1 has suggested that the plaintiff No.1 has entrusted the consignment in a good condition to the defendant 30 O.S.No.444/2021 and he did not produced any document to show that he has entrusted the consignment in a good condition to the defendant. So, for the proper appreciation of the suggestion which made by the learned counsel for the defendant and the answer which given by the P.W.1 is necessary for reproduction which reads like this:
It is true the plaintiff No.1 has entrusted the consignment in a good condition to the defendant. I have not produced any document to show the plaintiff No.1 has entrusted the consignment in a good condition to the defendant.
So, if the suggestion which made by the learned counsel for the defendant and the answer which given by the P.W.1 which referred above is taken into consideration, the plaintiff No.1 has entrusted the consignment in a good condition to the defendant, otherwise the learned counsel for the defendant ought not suggested that the plaintiff No.1 has entrusted the consignment in a good condition to the defendant. Therefore, if the suggestion which made by the learned counsel for the defendant is taken into consideration, it is clear that the plaintiff No.1 has entrusted the consignment in a good condition to the defendant, though the learned counsel for the defendant while canvassing his arguments has much argued that it is the primary obligation on 31 O.S.No.444/2021 the part of the consignor to deliver the consignment to the defendant in a good condition and there is no negligence on the part of the defendant for the cause of loss or the damage.
29. So by virtue of the provision which referred above when the defendant having the special knowledge that the plaintiff has not entrusted the consignment in a good order nor in a good condition, nothing is prevented to the defendant to establish the same through oral and documentary evidence, as the D.W.1 during his cross-examination has categorically admitted whenever the goods were given to the company for transportation if found in the damage condition they will not receive the said goods. Therefore, it is just and necessary for reproduction of the admission which made by the D.W.1 during his cross-examination which reads like this:
'It is true whenever the goods has been received by our company use to receive neither the invoice nor the bill of the goods.
Whenever the goods were given to our company for transportation if found in the damage condition they will not receive the said goods.32 O.S.No.444/2021
So, if the admission of the D.W.1 during his cross-examination is taken into consideration, if the plaintiff No.1 has not delivered the consignment to the defendant either in the good condition nor in the good order, he would have refuse to receive the consignment from the plaintiff. Therefore, if the admission of the D.W.1 during his cross-examination is taken into consideration, the plaintiff has delivered the consignment to the defendant in a good order and the condition and moreover, by virtue of the provision which referred above i.e. under Sec.106 of the Indian Evidence Act and Sec.9 of the Carriage Act, 1865, it is the bounden duty of the defendant to place the materials to show that there was no negligence on its part for the cause of loss nor the damage, since the burden on the defendant to establish that there was no negligence on its part for the cause of loss nor the damage and the plaintiff has not entrusted the consignment neither in the good condition nor in the good order, as the Ex.P.1 is the invoice in which it is clear that the plaintiff No.1 has entrusted the consignment of X-Rite Spectro photo meter for transit to Delhi for its consignee's office M/s V.V. Enterprises at New Delhi and worth of the said consignment is of Rs.12,98,000/- and Ex.P.2 is the consignment note which issued by the defendant, as the D.W.1 during his cross-examination has categorically admitted that after 33 O.S.No.444/2021 receipt of the consignment from the plaintiff No.1, the defendant has issued a consignment note in favour of the plaintiff No.1. When once the consignment note has been issued in favour of the plaintiff No.1, it is clear that the defendant has accepted the condition of the consignment which entrusted by the plaintiff No.1. Now the defendant cannot contend that as on the date of receipt of the consignment from the plaintiff No.1 it was not delivered neither in the good condition nor in the good order and for the cause of damage is on the negligence of the plaintiff. Therefore, the arguments which advanced by the learned counsel for the defendant on this aspect holds no water. 34 O.S.No.444/2021
30. The learned counsel for the defendant while canvassing his arguments has much argued that the suit of the plaintiff is not maintainable, since the plaintiffs were not issued a statutory notice under Sec.10 of the Carriage Act, as such the plaintiffs are not entitled the amount as sought in the plaint. It is an admitted as per the provisions of Sec.10 and 16 of the Carriage Act, 1865 and the Carriage by Road Act, 2007 which referred above, no suit shall be instituted against a common carrier for the loss of, or injury to, 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 6 months of the time, when the loss or injury first came to the knowledge of the plaintiff, admittedly the consignee who is at New Delhi has been noticed that the consignment which was entrusted to the defendant has been damaged on 25.10.2019 and as per Ex.P.3 the notice has been issued to the defendant regarding the loss on 07.11.2019. So, the consignee had noticed loss on 25.10.2019 and notice of loss has been issued on 07.11.2019, thus notice has been issued in writing within 6 months. So, the plaintiffs have complied under Sec.10 of the Carriage Act 1865 and whereas by virtue of Sec.16 of the Carriage by Road Act, 2007 no suit or other legal proceedings shall be instituted against a common carrier for any 35 O.S.No.444/2021 loss of, or damage to the consignment unless notice in writing of the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceedings and within 180 days from the date of booking of the consignment, admittedly the date of booking of the consignment by the consignor on 19.10.2019 as the plaintiffs in the plaint itself have clearly stated that they have entrusted the consignment to the defendant as per the invoice dated 19.10.2019 and the notice as per Ex.P.3 has been issued for the loss/ damage of the consignment on 07.11.2019 as per Ex.P.3. Therefore, by virtue of Sec.16 of the Carriage by Road Act, 2007 also the plaintiffs have issued a notice within 180 days from the date of booking of the consignment by the consignor. Therefore, the plaintiffs not only complied Sec.10 of the Carriage Act, 1865 but also complied Sec.16 of the Carriage by Road Act 2007 which referred above. Therefore, the arguments which advanced by the learned counsel for the defendant on this aspect holds no water.
31. The learned counsel for the defendant while canvassing his argument has much argued that the plaintiffs have entrusted the consignment of X-Rite Spectro photo meter from Bangalore to its consignee's office M/s V.V. Enterprises at New Delhi as per the 36 O.S.No.444/2021 invoice, but it was entrusted in a good order and the condition, thereby the defendant is not liable to pay either loss nor the damage. Thus this court drawn its attention on Sec.3 of the Carriers Act, 1865 which reads like this:
3. Carriers not to be liable for loss of certain goods above one hundred rupees in value, unless delivered as such.--No common carrier shall be liable for the loss of or damage to property delivered to him to be carried exceeding in value one hundred rupees and of the description contained in the Schedule to this Act, unless the person delivering such property to be carried, or some person duly authorised in that behalf, shall have expressly declared to such carrier or his agent the value and description thereof.
The above provision is very much clear no common carrier shall be liable for the loss of, or damage to the property delivered to him to be carried exceeding in value Rs.100/- and of the description contained in the schedule, unless the person delivering the such property to be carried or some person duly authorized in that behalf shall have expressly declared to such carrier or his agent the value and the description thereof. But the descriptions contained in the schedule was not the consignment which was entrusted to the defendant. Therefore, the arguments which advanced by learned counsel for the defendant on this aspect also holds no water.
37 O.S.No.444/2021
32. The learned counsel for the defendant has much argued that the P.W.1 has no right to give evidence on behalf of the plaintiff No.1, since the plaintiff No.1 has not executed any GPA to prosecute the case on its behalf and the P.W.1 has no right to give evidence even on behalf of the plaintiff No.2 also. Therefore, his evidence cannot be looked into and drawn the court attention on the judgment of Hon'ble High Court of Himachal Pradesh which passed in 2004(11) Companies Case 328 in between Valley Resort Vs H.P. State Electricity Board and Others. On careful perusal of the said judgment, in the said judgment their lordship held that in the absence of specific resolution of the Board of Directors authorizing a particular person to institute the petition for and on behalf of the company or the power conferred on the director by the memorandum and articles of association, the petition cannot be said to have been laid by a duly authorized and competent person for and on behalf of the company.
33. Admittedly, the defendant while cross-examination of the P.W.1 has not suggested about the maintainability of the suit on the ground of authorization to file the suit. However, the suit has been filed by the authorized signatory of the plaintiff No.2. Thus this court drawn its attention on Ex.P.11. Ex.P.11 is the letter of subrogation and special power of attorney which executed by 38 O.S.No.444/2021 the director of the plaintiff No.1 in favour of the plaintiff No.2 and the plaintiff No.2 has been authorized to file a suit and to prosecute the case on its behalf. So by virtue of Ex.P.11 the plaintiff No.1 has empowered the plaintiff No.2 to file a suit on its behalf to recover the money from the defendant. Thus one thing is clear the plaintiff No.1 has executed not only letter of subrogation but also special power of attorney authorizing the plaintiff No.2 to file the suit on its behalf and to recover the amount from the defendant.
39 O.S.No.444/2021
34. The learned counsel for the defendant while canvassing his arguments has much argued that the P.W.1 has no authority to give evidence neither on behalf of the plaintiff No.2 nor on behalf of the plaintiff No.1. Therefore, his evidence cannot be looked into, since the plaintiff No.2 has not produced any document to show that he has been authorized to prosecute the case against the defendant and drawn the court attention on the judgment of Hon'ble High Court of Himachal Pradesh passed in 2004 (11) Company Case 328 in between Apple Valley Resort Vs H.P. State Electricity Board and in the said judgment, the issue has been arisen regarding the authorization and his lordship held that in the absence of specific resolution of Board of the Directors authorizing to institute the petition for and on behalf of the company or the power conferred on the Director by the memorandum and articles of association, petition cannot be said to have been laid by a duly authorized and competent person. Admittedly in the instant case, the P.W.1 being the Administrative Officer of the plaintiff No.2 in the evidence itself has clearly stated that he know the facts of the case as he has acquainted with the facts of the case and he has been authorized to give evidence and during the cross-examination, the learned counsel for the defendant has not suggested the P.W.1 that the P.W.1 is 40 O.S.No.444/2021 not the Administrative Officer of the plaintiff No.2 nor suggested has no authority to give evidence, for which the learned counsel for the plaintiff has drawn the court attention on the judgment of the Hon'ble High Court of Judicature at Madras passed in Appeal Suit No.1040/2012 decided on 19.06.2017 in between Singapore Airlines Cargo Pvt. Ltd., Vs HCL Info systems Ltd. In the said judgment the appellant has been filed the appeal against the judgment and decree dated 19.12.2011 passed in O.S.No.112/2010 on the file of the District and Sessions Judge, Chennai as the suit of the plaintiff has been decreed directing the appellant to pay a sum of Rs.13,39,213/- along with interest @ 18% p.a. The appellant being the 1st defendant has challenged the said judgment before the Hon'ble High Court of Judicature at Madras and in the said judgment, their lordship held that it is evident from the relevant portion of cross-examination of the P.W.1 that the 1 st defendant has not chosen to put any question to the P.W.1 to the effect that the Senior Divisional Manager of the 2 nd plaintiff company is not competent officer to verify the plaint nor put any question as regards the position held by the person, who verified the plaint.
35. In the instant case also nothing is suggested to the P.W.1 as held in the judgment of the Hon'ble High Court of Judicature at Madras. That is the reason why the appeal which 41 O.S.No.444/2021 filed by the defendant No.1 was came to be dismissed. In the instant case also, the learned counsel for the defendant has not suggested the P.W.1 while cross-examination as observed in the judgment. Therefore, the judgment which relied by the learned counsel for the defendant is not applicable to the case on hand, whereas the judgment which relied by the learned counsel for the plaintiff as referred above is directly applicable to the case on hand.
36. The learned counsel for the plaintiff has drawn the court attention on the judgment of the Hon'ble Supreme Court which reported in AIR 1997 SC 3 passed in C.A.11884/1996 in between Union Bank of India Vs Naresh Kumar and Others . In the said judgment, their lordship held that where the suits are instituted on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality, procedural defects which do not go to the root of the matter, should not be permitted to defeat a just cause and there is a sufficient power in courts to ensure that justice is not done to any party who has a just cause and any technicalities should not be permitted to defeat the justice and substantive right should not be allow to defeat on account of procedural irregularity and the said counsel has also drawn the court attention on the judgment of Hon'ble High Court of Bombay 42 O.S.No.444/2021 reported in 1980 Supreme (Mah.) 105 in between Road Transport Corp. & others Vs Kirloskar Bazars Ltd., 2006 ACJ 2802 in between Patil Roadways Ltd., Vs Sheshasai Industries Ltd., & Anr and the judgment of Hon'ble High Court of Judicature at Madras passed in Appeal Suit No.113/2003 in between M/s Jaihind Roadways Pvt. Ltd., Vs M/s Hindustan Motors Ltd., & Anr . On careful perusal of the said judgments, the principles laid down in the said judgments are applicable to the case on hand.
43 O.S.No.444/2021
37. The learned counsel for the plaintiffs has rightly submitted that the plaintiff No.1 has executed the subrogation and power of attorney in favour of the plaintiff No.2 to recover the amounts which paid by the plaintiff No.2 to the plaintiff No.1 from the defendant and the plaintiff No.2 having the right to recover the amount from the defendant by virtue of subrogation and the said counsel has drawn the court attention on the judgment of Hon'ble High Court of Judicature, Andhra Pradesh passed in 2009 (1) ALT 87 in between New India Assurance Company Ltd., & Anr. Vs State of Andhra Pradesh. On careful perusal of the said judgment, the principles which are laid down in the said decision are applicable to the case on hand. Therefore, one thing is clear from the oral and documentary evidence that the plaintiff No.1 has entrusted the consignment to the defendant for transportation to Delhi to its consignee's office in a good order and good condition but the defendant did not deliver the said consignment in the same apparent good order and condition, thereby sustained the loss, it was assessed through surveyor, but in spite of the notice, the defendant did not come forward to pay the loss, though the defendant has taken up the contention that the loss was caused on the part of the plaintiff No.1, but nothing is proved through oral and documentary evidence. On the other hand the plaintiffs 44 O.S.No.444/2021 have proved their case through oral and documentary evidence. Hence, I am of the opinion that the issue No.1 to 3 answered as Affirmative and issue No.4 answered as Negative.
38. ISSUE No.5: The plaintiff No.1 being the consignor and the plaintiff No.2 being the insurance company to the consignment of the plaintiff No.1 and the defendant being the common carrier for safe carriage and delivery at destination to the consignee's place. Accordingly the plaintiff No.1 has dispatched the consignment of Ex-Rite Spectro photo meter from Bangalore to consignee's office M/s V.V. Enterprises at New Delhi as per the invoice, though defendant has issued consignment note, but did not deliver the suit consignment in the same apparent good order and condition, for which surveyor has been appointed who conducted the detailed survey and submitted the survey report stating that the plaintiffs have sustained the loss of Rs.11,68,200/- and the plaintiffs have requested their net loss to Rs.11,67,900/-, though the defendant has received the notice for the loss which caused by him, but he did not come forward to pay the loss which sustained by the plaintiffs and the plaintiffs have proved their case through oral and documentary evidence. Hence, I am of the opinion that the issue No.5 answered as Affirmative.
45 O.S.No.444/2021
39. ISSUE NO.6: In view of my findings to Issue No.1 to 5 as stated above, I proceed to pass the following;
ORDER The suit of the plaintiff is decreed with cost.
The defendant is liable to pay the decretal amount of Rs.11,67,900/- towards damage with interest @ 12% p.a. from the date of the suit till its realization. Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected by me and then pronounced in the open court on this the 6th day of June, 2022) (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru City List of witnesses examined on behalf of plaintiff:
P.W.1 K.K. Deepika List of witnesses examined on behalf of defendant:
D.W.1 Prabhakar Nagappa List of documents exhibited on behalf of plaintiff:
Ex.P.1 Invoice dt:19.10.2019
Ex.P.2 Consignment note dt:19.10.2019
Ex.P.3 Notice of loss dt:07.11.2019
Ex.P.4 Postal receipt
Ex.P.5 Postal acknowledgment
Ex.P.6 Damage certificate dt:12.11.2019
Ex.P.7 Marine Survey report dt:21.12.2019
Ex.P.8 Survey bill
46 O.S.No.444/2021
Ex.P.9 Marine Insurance inland transit claim form
Ex.P.10 Discharge voucher dt:21.01.2020
Ex.P.11 Letter subrogation and special power of
attorney
Ex.P.12 Claim payment voucher
List of witnesses examined on behalf of plaintiff:
D.W.1 Sri. Jagadish List of documents exhibited on behalf of defendant:
Ex.D.1 Letter of authority
Ex.D.2 True copy of the letter dt:02.11.2019
Ex.D.3 True copy of damage certificate
Ex.D.4 Certificate U/s. 65 (B) of Indian Evidence Act
(P.J. Somashekara)
LXXXVIII Addl. City Civil & Sessions Judge,
(Exclusive dedicated Commercial Court),
Bengaluru City