Delhi District Court
Suit No.101/14 Royal Sundaram Alliance vs . Kausar India Ltd. on 9 May, 2014
Suit No.101/14 Royal Sundaram Alliance Vs. Kausar India Ltd.
IN THE COURT OF SH. NAVEEN ARORA ADJ06:
SOUTH DISTRICT: SAKET, NEW DELHI
Suit No : 101/14
1) Royal Sundaram Alliance Co. Ltd.
45 & 46 Whites Road,
Chennai600014.
2) Cadbury India Ltd.
19, Bhulabhaii Desai Road,
Mumbai400026 ....PLAINTIFFS
V E R S U S
Kausar India Limited
Registered Office97, Anand Lok,
New Delhi110049 ....DEFENDANT
Date of Institution of the suit : 06.08.2009
Date of hearing arguments : 06.05.2014
Date of Judgment : 09.05.2014
SUIT FOR RECOVERY OF RS.7,19,136
JUDGMENT
1. As per the case of the plaintiff, plaintiff No.2 on 05.08.2006 booked the goods mentioned in invoice No.01231 for transportation through carrier of defendant from Malanpur to Madurai under the Marine Open Policy No.M000001632 of plaintiff No.1 which were transported under GR No. 28673 dated 05.08.2006 on a Truck No. HR38D1483. The said vehicle met with an accident enroute and the consignment suffered damages due to which it could not be delivered. A claim is lodged by plaintiff No.2 upon defendant vide letter dated 24.08.2006 and the defendant vide letter dated 28.08.2006 issued the damage certificate and on the basis of which the plaintiff No.1 lodged a claim upon plaintiff no.1 and accordingly a sum of Rs.540216/ was paid to plaintiff no.2 towards full and final settlement of the claim 1 of 11 Suit No.101/14 Royal Sundaram Alliance Vs. Kausar India Ltd.
and plaintiff no.2 executed a letter of subrogation and special power of attorney in favour of plaintiff no.1.
It was the duty of the defendant to deliver the goods in same condition as per the provision of Carrier Act, 1865 wherein the defendant has failed and now it is under liability for loss and damage towards the plaintiff no.1 and 2 which is absolute and unconditional. The plaintiffs are entitled to claim a sum of Rs. 7,19,163/(including interest @ 9% p.a. from 25.09.2006 to 31.07.2009). Hence this suit.
2. Suit was contested by the defendant by filing its WS wherein he admitted the booking of consignment by plaintiff No.2. It is submitted that on 09.08.2006 due to heavy rain fall despite all the precaution taken by the driver, the driver could not see a deep khud since the entire road was covered with water and the vehicle fell into the Khud and got submerged in water due to which consignment was damaged. It is submitted that M/s National Insurance Company Limited were apprised immediately and spot survey was conducted, however, since damages were minor, the defendant did not prefer any claim with the insurance company. It is further submitted that at the time of handing over the said consignment, the plaintiff No.2 did not disclose that plaintiff No.2 company has already purchased a Marine Insurance Police in respect of the said consignment from plaintiff No.1 and has paid the necessary insurance premium thereon to the plaintiff No.1. The defendant being totally unaware of the afore mentioned facts at the time of transportation, accepted the said goods on the good faith on 'said to contain' basis and in packed condition. It is submitted that from the letter of subrogation and power of attorney dated 22.06.2007, it is clear that some surveyor were appointed by plaintiff no.1, report of which were never filed by the plaintiffs in collusion with each other, keeping the defendant in dark. It is goods were booked by the consignor at "OWNER'S RISK" and additional risk cover charges (risk on value), hence the defendant is not liable for any loss or damages. It is submitted that 2 of 11 Suit No.101/14 Royal Sundaram Alliance Vs. Kausar India Ltd.
plaintiff No.1 cannot claim anything from defendant by invoking the clause of subrogation and present suit filed by the plaintiffs for recovery under the Carriers Act is not maintainable as no statutory notice U/Sec. 10 of Carriers Act was not served upon the defendant as it imposes contractual duty upon the plaintiffs to give a notice in writing to a carrier in case of any claim to be lodged as to the loss or damage caused to the cargo. It is submitted that the lost to the consignment has occurred due to the circumstances beyond the control of the defendant i.e. due to "
Force Majure". It is further submitted that there is no previty of contract between plaintiff No.1 and defendant and plaintiffs have not approached the court with clean hand. It is submitted that suit is bad for non joinder of driver of the vehicle as necessary party. On the above mentioned grounds, defendant prayed for dismissal of the suit.
3. Plaintiff filed Replication to the WS of defendant wherein the contents of the WS were denied and contents of the plaint were reaffirmed as correct. It is submitted that vehicle never fell into any Khud or got submerged into any water or there was heavy rain fall on 09.08.2006. It was denied that goods were booked by the consignor at "OWNER RISK". It is submitted that the existence of policy or its knowledge to the defendant is not relevant to the defendant's liability for the damage to the consignment.
4. From the pleadings of the parties, following issues were framed on 03.05.2011 :
1. Whether the suit has been signed, verified and executed by duty authorized person?OPP
2. Whether the statutory notice U/Sec.10 of Carriers Act was required to be served upon the defendant by the plaintiffs, if so, was it served in the present case ?OPP
3. Whether the plaintiff is entitled to the recovery of suit amount ?OPP
4. Whether the plaintiff is entitled to any interest, if yes, at what rates ?OPP 3 of 11 Suit No.101/14 Royal Sundaram Alliance Vs. Kausar India Ltd.
5. Relief.
6. Plaintiffs examined Sh. G.Vinay Prakash as PW1 who filed his affidavit in his examinationinchief reiterating the contents of the plaint and relied upon the following documents : Sl. No. Documents Exhibit No. Inference 1 Authorization letter in PW1/1 Undisputed document favour of Sh. S. Srinivasan to file and institute the present suit 2 Authority letter in favour of PW1/2 Undisputed document PW1 to depose before the court 3 Marine Cargo Open Policy Mark A Undisputed document No.MC000001632 4 Original Consignment PW1/3 Containing standard terms and note/GR No.28673 dated conditions on the back of the 05.08.2006 receipt that goods were sent at Owner's Risk 5 Original Invoice No.01231 PW1/4 It was for the value of Rs.
dated 05.08.2006 11,62,345/
6 Monetary claim/ notice PW1/5 Vide this notice the defendant
dated 24.08.2006 issued by was held liable as carrier for the
plaintiff no.2 to defendant financial loss of Rs.5,40,216/
and it is also mentioned that this
notice should be treated as
notice on behalf of the Insurer of
plaintiff No.2 i.e. plaintiff No.1.
Notice was duly received and
damage certificate was issued.
7 Original Damage Certificate PW1/6 In this certificate the defendant
dated 28.08.2006 itself certified that loss of Rs.
5,40,216/ was caused to plaintiff
No.2
8 Original claim bill for the PW1/7
sum of Rs.5,40,216/
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Suit No.101/14 Royal Sundaram Alliance Vs. Kausar India Ltd.
9 Original Discharge Voucher PW1/8
10 Original letter of PW1/9 Undisputed document
subrogation & Special
Power of Attorney
11 Letter dated 22.08.2007 sent PW1/10
by defendant's counsel
admitting the notice of
plaintiff dated 11.07.2007
7. During his cross examination witness stated that in the instant case the loss was due to the road accident which had occurred due to the negligence of the driver of the defendant. He stated that he is not aware of the circumstances of the accident. He stated that on the basis of records he can say that in the instant case the accident had occurred due to negligence of the driver of the defendant. He further stated that he is not aware that the vehicle of the defendant in which the consignment was being transported was a refrigerated vehicle or the loss occurred as water had entered in the consignment. He admitted that the fact of the payment by the cheque is not mentioned in the discharge voucher. He however denied that details of cheque have been intentionally omitted as in the instant case no payment was made by the plaintiff no.1 to plaintiff no.2 and thus suit is false and frivolous. Thereafter Plaintiff Evidence was closed.
8. In defence evidence, defendant has examined Sh. Rajesh R.Zawar, Surveyor & Loss Assessor as DW1 who in his examinationinchief submitted that he was appointed by National Insurance Company to conduct the spot survey in respect of of vehicle No. HR38D1483 near Jalgaon, Maharashtra and proved his license as EX.DW1/1. He further deposed that after survey he submitted his report EX.DW1/2 and 8 photographs of spot survey were proved as EX.DW1/3 (colly). He further submitted that due to rain, the vehicle skidded and capsized down the left side of the road. During his cross examination he stated that his job was to do spot survey of accidental truck and not the consignment.
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9. Defendant has also examined Sh. Mohit Raj, (Executive Legal) of defendant company as DW2 who filed his affidavit and stated that defendant is engaged in the business of transportation services in refrigerated Vans for perishable goods. He further stated that vehicle bearing No. HR38D1483 was loaded on 05.08.206 at M/s Cadbury India Ltd, Malanpur, M.P. for delivery to M/s Cadbury India Ltd. Madurai and the goods were booked by the consignor at "OWNER RISK"
and no additional risk cover charge (Risk on value) was paid and thus the defendant is not responsible for the loss or damages, if any. He further stated that on the way on 09.08.2006 there was heavy rainfall and though the driver was driving the vehicle very cautiously, however, he could not see a deep Khud since the entire road was covered with water and got submerged in water and water entered the refrigerated cabin and came into contact with the consignment and in respect of the loss/accident, the defendant immediately vide letter dated 11.08.2006 Mark B apprised M/s National Insurance Company, pursuant to which a spot survey was conducted by Mr. Rajesh R. Zawar, Surveyor and Loss Assessor. Receipt issued by Surveyor was proved as EX.DW2/3. He further deposed that since the damages of the vehicle of defendant were minor, the defendant did not prefer any claim with the Insurance Company and vide letter dated 29.09.2006 Mark C addressed to Insurance Company expressed their desire of not processing the claim on loss basis. He further deposed that at the time of handing over the consignment the plaintiff No.2 did not disclose that it had already purchased a Marine Insurance Policy in respect of the consignment from the plaintiff no.1 and had paid necessary premium thereon to plaintiff no.1.and defendant being totally unaware of the aforesaid mentioned fact at time of transportation, accepted the goods on good faith on 'Said to contain' basis and in packed condition. He further deposed that vide subrogation and special power of attorney dated 22.06.2007 the plaintiff no.1 had deputed some Surveyor and had paid a premium of Rs.9,693/ towards survey fee, the report of which were never filed by the plaintiff. During his cross examination, he admitted that GR EX.PW1/3
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was issued by defendant company. He further admitted that said truck was met with an accident and they came to know subsequently that consignment was damaged. He further admitted that EX.PW1/5 was received by his company and bears the stamp of his company but he do not identify the signatures of his director. He further admitted that EX.PW1/6 was issued by his company but he could not identify the signatures over the said damage certificate. He further admitted EX.PW1/10 issued by their counsel on behalf of defendant.
10. Defendant further examined Sh. Pawan Mangla, Sr. Divisional Manager, National Insurance Company, GT Road, Moga, Punjab as DW3 who proved the following documents :
1. Copy of Insurance policy No. 401700/31/05/6300003624 wrt vehicle No. HR38D1483 the period of 09.03.2006 to 08.03.2007 i.e. EX.DW3/1.
2. Letter of the insured dated 11.08.2006 regarding accident of vehicle for spot survey, EX.DW3/2.
3. Letter written by Insurance company to M/s Kausar India Ltd regarding completion of formalities for payment/final survey, EX.DW3/3.
4. Letter of the insured dated 29.09.2006 regarding withdrawal of claim being minor claim, EX.DW3/4.
5. Copy of Spot Survey Report of Sh. Rajesh R. Jawar containing 12 pages as EX.DW3/5.
however, he had submitted that he has no personal knowledge of this case as he has not personally dealt with it at any point of time.
11. I have heard the arguments and have perused the record. My issuewise findings are as follows : Issue No.1. Whether the suit has been signed, verified and executed by duty authorized person?OPP 7 of 11 Suit No.101/14 Royal Sundaram Alliance Vs. Kausar India Ltd.
12. The burden of proving this issue was upon the plaintiff and in order to discharge its burden, the plaintiff has relied upon EX.PW1/1 i.e the authorization letter vide which the Managing Director of plaintiff company i.e. Mr. Antony Jacob authorized Mr. S. Srinivasan to do every thing from institution till decision for pursing any litigation, civil or criminal. No cross examination was done on this point by the defendant,hence the testimony of the plaintiff remained unrebutted through on this point and has not been challenged by the defendant, hence this issue is decided in favour of plaintiff.
Issue No.2. Whether the statutory notice U/Sec.10 of Carriers Act was required to be served upon the defendant by the plaintiffs, if so, was it served in the present case ?OPP
13. It is an admitted position that document EX.PW1/5 was served upon the defendant informing the defendant about the damage/loss suffered by the consignor to the tune of Rs.5,40,216/ on account of damages to the consignment enroute during transportation through the vehicle of defendant. It is well settled position of law that there is no form prescribed under the Carrier Act for notice U/Sec. 10 and its object is just to inform about the damage, hence it cannot be said that notice was not served upon the defendant U/Sec. 10 of the Carrier Act, 1865. Hence this issue is decided in favour of plaintiff.
Issue No.3 Whether the plaintiff is entitled to the recovery of suit amount ?OPP
14. For proving this issue, the following points needs to be decided :
1. Whether the defendant was aware about the contents of the consignment?
2. Whether the goods were transported at the "Owner Risk" ? If the goods were transported at "Owner Risk" whether the defendant is under any liability, if, the negligence is found on its part?
3. Whether there was negligence on the part of the defendant in transportation of goods safely or not. ?
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15. Needless to say, as it is well settled position of law that the transporter under the provision of Carrier Act and Indian Contract Act( Provision regarding Bailments) is duty bound to preserve the goods in safe custody when they are under its control. The transporter is also duty bound to transport the goods safely and is not suppose to act negligently in dealing or transporting the goods. It is also well settled position of law that the burden of proving absence of negligence on the part of the transporter is upon the transporter itself and not upon the consignor in terms of Section 9 of Carrier Act,1865, meaning thereby that negligence is to be presumed on the part of the carrier unless he proves otherwise. From the above mentioned legal position, it is clear that even if it is assumed that the goods were sent at "Owner Risk", the owner is still duty bound to transport it safely to avoid any liability as held in 2001(3) ICC 473(Mad) titled as Economic Roadways Corporation, Madras Vs. Soundararaja Mills Ltd. Dindigul & Anr. In this judgment it is also held that a public carrier is not entitled to contend that it transported goods at "Owner Risk"
16. In the present case, it is an admitted position from the photographs of the vehicle in question that the vehicle was found toppled on the side of the road. There can be various reasons for this kind of accident and it is the duty of the defendant/ carrier to explain it and in the Written Statement the defendant had tried to explain the accident by saying that : " on 09.08.2006 there was heavy rain fall and though the driver of the defendant was driving the vehicle very cautiously and with utmost care and after observing all traffic rules, however, the driver could not see a deep Khud since the entire road was covered with water. The vehicle of the defendant fell into the Khud and got submerged in water and water entered the refrigerated cabin and came into contact with the consignment"
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17. The defendant nowhere explained that as to how the vehicle toppled and fell on the side of the road if it is submerged in the water in the Khud as alleged in the WS. I do not see any occasion for the vehicle to toppled down after falling in the Khud and getting itself submerged in the water. No photographs were placed on record of any big size Khud where the truck allegedly submerged. No Meteorology Department's report was placed on record to show that on 09.08.2006 there was such a heavy rainfall that due to which various accident took place and rain can be termed as an Act of God/ Force Majure. It is a matter of common parlance that if it is raining heavily and the vision on the road is not clear, than the driver should drive the truck very slowly or he should stop the truck and wait for the stopping of rain or till the vision is clear. Needless to say that every professional driver is suppose to know that vehicle is to be driven as per the circumstances and traffic and weather conditions on road. It is pertinent to mention here that defendant in order to discharge the burden that his driver was driving the vehicle cautiously, did not examine the driver himself who could be the best witness in the given circumstances, rather, no reason was given for not examining him. Needless to say that defendant cannot take advantage of his own default and he has not been able to discharge the burden of proving the absence of negligence on the part of the driver because a bald assertion which is not even probable cannot be of any help to the defendant. Hence it can be safely said that accident occurred due to the negligence of the driver making the carrier responsible to make good, the loss suffered by the consignor.
18. The consignor has assigned all his interest in favour of plaintiff No.1, Insurance Company, hence the Insurance Company is entitled to recover the loss from the defendant company. Hence this issue is also decided in favour of plaintiff and against the defendant.
Issue No.4 Whether the plaintiff is entitled to any interest, if yes, at what rates ?OPP 10 of 11 Suit No.101/14 Royal Sundaram Alliance Vs. Kausar India Ltd.
19. In view of decision of above mentioned issues, the defendant is liable to compensate the plaintiff No.1 with interest for causing delay in the payment on frivolous grounds. In my opinion the ends of justice would meet, if the plaintiff is granted interest @9% p.a. RELIEF.
20. In view of decisions of above mentioned issues, suit of the plaintiff is entitled for a sum of Rs.7,19,136/ alongwith pendentelite and future interest @ 9% p.a. from the date of filing of the suit till its realization. Costs of the suit is also awarded in favour of plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in Open Court (NAVEEN ARORA)
on 09th day of May, 2014 ADJ06: South: Saket
New Delhi
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