Bangalore District Court
M/S. Eli Lilly Asia Inc vs M/S. Inland World Logistics (P) Ltd on 24 February, 2020
IN THE COURT OF THE XXX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-31)
DATED THIS THE 24 th DAY OF FEBRUARY 2020
-: PRESENT:-
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl.City Civil & Sessions Judge,
Bengaluru City
O.S.NO.211/2018
PLAINTIFF : 1. M/s. Eli Lilly Asia Inc.,
Unit 4A, Level-3, Nitesh Broadway,
No.9/3, M.G.Road,
Bengaluru -560 001.
M/s.United India Insurance Co. Ltd.
Post Box No.6813, 3rd Floor,
IML Building, NR Square,
Bengaluru -560 002.
2.M/s.United India Insurance Co. Ltd.
Post Box No.6813, 3rd Floor,
IML Building, NR Square,
Bengaluru -560 002.
(By Pleader Sri.P.S.Ranganathan,
Adv.)
/VS/
DEFENDANTS: M/s. Inland World Logistics (P) Ltd.,
No.1, T.Venkatappa Building,
1st Stage, Tumkur Road,
Peenya, Near Peenya Bus Stop,
Bengaluru -560 058.
(Exparte)
*****
2 O.S.No.211/2018
DATE OF INSTITUTION 05-01-2018
NATURE OF THE SUIT (Suit on Suit for
Pronote, Suit for declaration and Recovery of
Possession, Suit for injunction, etc.) money.
DATE OF THE COMMENCEMENT
OF RECORDING OF THE EVIDENCE 08-08-2019
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED 24-02-2020
TOTAL DURATION YEAR/S MONTH/S DAY/S
02 01 19
(MAANU K.S.),
XXX Addl.City Civil & Sessions Judge,
Bengaluru City.
3 O.S.No.211/2018
JUDGEMENT
1. This is a suit filed for recovery of a sum of Rs.86,817/- together with interest at the rate of 12% p.a. from the date of filing of the suit till realization along with costs.
2. The brief facts of the plaintiff's case are as under:
(a). It is the case of the plaintiffs that the 1 st plaintiff is a registered company represented by its power of attorney agent/subrogee the 2nd plaintiff and the 2nd plaintiff is a public limited company incorporated under The Companies Act, 1956 being a General Insurer. It is their further case that the defendant is a private limited company incorporated under The Companies Act, 1956 involved in the business as a common road carrier for reward. It is the further case of the plaintiffs that in the course of the business the 1st plaintiff despatched its consignment of Animal feeds-Premia from Bengaluru to its consignee office M/s.Addvet, Hooghly, West Bengal vide its invoice bearing No.7000374027 dtd.20-06-2013 valued at Rs. 26,94,995-20 and the said consignment was entrusted to the defendant for safe carriage and delivery to the consignee at Hooghly, West Bengal and the defendant had acknowledged the entrustment of consignment vide its consignment note bearing No.4413000166 dtd.21-06-2013 thereby undertaking to care for, carry and deliver the consignment in the usual good condition as was entrusted and the said 4 O.S.No.211/2018 consignment was insured with the 2 nd plaintiff by the 1st plaintiff under a policy of insurance bearing No.500400/21/13/02/00000040. It is further contended that the defendant delivered the said consignment in a damaged condition at destination on 26-06-2013 and immediately after getting knowledge of said loss it got issued a statutory notice of loss to the defendant on 16-
07-2013 by hand delivery informing the defendant about the said loss and claiming the loss amount from them and the said notice has been duly acknowledged by the defendant under its seal and signature and the defendant has also issued a damage certificate bearing Ref.No.BLR 012/13 dtd.20-07-2013 admitting the damage delivery and the value of loss also. They further contended that upon such damage delivery, the 2 nd plaintiff got appointed M/s.Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. Ltd. under the Insurance Act, to assess the loss suffered by the 1 st plaintiff and the said surveyors have submitted their detailed survey report bearing No.23/400/10555 dtd.13- 08-2014, wherein they have assessed the loss suffered by the 1st plaintiff to the tune of Rs. 86,817/- as detailed in paragraph No.6 of the plaint and also in the said survey report.
(b). The plaintiff further contended that having admitted the fact of damaged delivery by issuing a 5 O.S.No.211/2018 damage certificate dtd.20-07-2013, the defendant is liable to pay the value of the damaged consignment as a common carrier as the said damage and consequent loss was sustained by the plaintiffs due to the negligence and lack of care on the part of the defendant coupled with mis feasance/mal feasance and as such, the defendant was called upon to disclose as to how they handled the consignment when they had exclusive custody of the same during transit. It is further contended that they also submitted their claim form to the defendant on 05- 08-2013 with Claim Bill and the 2 nd plaintiff being the insurer has already indemnified the 1 st plaintiff's claim under the insurance policy to the extent of Rs. 86,817/- vide its settlement intimation voucher dtd.24-04-2014 and upon such indemnification, the plaintiff No.1 has executed letter of subrogation and special power of attorney in favour of the 2 nd plaintiff at Bengaluru on 29- 04-2014 subrogating their rights in favour of the 2 nd plaintiff by virtue of which and as per the provisions of Sec.79 of the Marine Insurance Act, the 2 nd plaintiff is entitled to claim and maintain a suit in their own name and to avoid any technical objections that may be raised by the defendant, both the plaintiffs have jointly and severally filed this suit. It is further contended that upon execution of letter of subrogation and special power of attorney, the plaintiffs have entrusted the claim papers to their recovery agents named M/s.VNC Claims 6 O.S.No.211/2018 Consultancy and the said recovery agents sent a claim letter dtd.31-10-2014 to the defendant calling upon the defendant to compensate the loss and even after delivery of the said letter, the defendant has not come forward to settle the claim of the plaintiffs, but on the other hand, got issued a reply on 13-11-2014 denying their liability on untenable grounds and as such, left with no other option, they have come up with the present suit for recovery of a sum of Rs.86,817/- along with interest at the rate of 12% p.a. and costs of the proceedings and therefore, with these averments, they prayed for decreeing the suit.
3. After institution of the suit, the suit summons was issued to the defendant, which returned unserved with endorsement 'refused'. Therefore, the service of summons was held sufficient and since the defendant remained absent, it was placed exparte and the case was posted for plaintiff's evidence.
4. In order to substantiate the case of the plaintiffs, the administrative officer of the plaintiff No.2 got examined himself as P.W.1 and got marked the documents Ex.P.1 to P.14. Since the defendant is placed exparte, cross- examination of P.W.1 was taken as nil. Thereafter, plaintiffs' counsel closed his side evidence and then the case was posted for arguments.
7 O.S.No.211/20185. The counsel for the plaintiff has filed written arguments along with list of decisions. Perused the materials placed on record, written arguments and the following decisions submitted by the counsel for the plaintiff.
1. SCC 2010(1) Supreme 058 in the matter between Economic Transport Organization Vs. M/s.Charan Spinning Mills P.Ltd.
2. Karnataka High Court 2005 3RCR (Civil 337) in the matter between Basavaraj Yellappa Pundi Vs. Natinal Insurance Co. Ltd.
3. 2004(4)CTC 273 in the matter between Patel Roadways Vs. Seshasayee Industries Pvt. Ltd.
4. High Court of Judicature at Madras -2000(2) L.W.770 in the matter between Ravichandran Transports Vs. United India Insurance Co. Ltd.
5. Madras High Court-2004 0AIR(Mad)538 in the matter between Bonds Foods P. Ltd. Vs. Planters Airways Corporation Ltd.
6. The following points arise for my consideration:
1. Whether the plaintiffs have established that plaintiff No.2 is entitled for recovery of the damages of Rs.86,817/- with interest at 12% p.a. as prayed?
2. What order or decree?
7. On the basis of the materials placed on record and the evidence adduced both oral and documentary, my answers to the above points are as under:
Point No.1: Partly in the affirmative.8 O.S.No.211/2018
Point No.2: As per the final order for the following:
REASONS
8. POINT NO.1:- The administrative Officer of 2nd plaintiff Sri.Sudhir C.K. has examined himself as P.W.1 and reiterated the plaint averments and got marked 14 documents as per Ex.P. 1 to P.14. Ex.P.1 is the authorization letter issued by the 2nd plaintiff in favour of P.W. 1 to depose on behalf of the plaintiffs, Ex.P. 2 is the Shipping Invoice through which the 1st plaintiff consigned the animal feeds to its consignee, M/s.Addvet, Hooghly, West Bengal for a total value of Rs.26,94,995-20 to be delivered to the consignee in good condition. Ex.P.4 is the delivery challan issued by the defendant for having delivered the consignment assigned by the 1st plaintiff to the consignee M/s.Addvet situated at Hooghly, West Bengal, wherein the said consignee has made an endorsement to the effect that 4 bags of Maxiban 72 and 4 bags of Monteban 45 have been received in damaged condition, Ex.P. 3 is the letter issued by the 1st plaintiff seeking for settlement of the claim at the earliest and to issue a damage certificate to the Manager, Kuehne + Nagel Pvt.Ltd., Bengaluru. Ex.P.8 is the certificate of damage issued by the defendant, wherein it has been clearly admitted by the defendant that 8 bags of animal feeds have been delivered in damaged condition, the value of which was worth Rs. 79,833-60. Ex.P. 5 is the 9 O.S.No.211/2018 report filed by the Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. Ltd., who have assessed the damages caused to the consignment of the 1st plaintiff to the tune of Rs. 79,833-60 and by adding 10% adjustment as per the policy to the tune of Rs. 7,893-10 and by giving concession towards the excess of Rs. 1,000/-, arrived at Rs. 86, 816-96 as a net adjusted loss. Ex.P.6 is the Marine claim form submitted by the 1st plaintiff. Ex.P. 7 is the claim bill issued by the 1st plaintiff to the 2nd plaintiff. Ex.P.13 is the settlement intimation voucher, where under the 2nd plaintiff has settled the claim of the 1st plaintiff by paying a sum of Rs.86,816/- towards the loss suffered by it on account of damage caused to the goods consigned. Ex.P.14 is the agreement of subrogation cum special power of attorney executed by the 1st plaintiff in favour of the 2 nd plaintiff authorizing the 2nd plaintiff to recover the damages of Rs.86,816/- from the defendant. Ex.P. 9 is the letter issued by M/s.VNC Claims Consultancy to the defendant along with the claim bill as per Ex.P. 10. Ex.P.11 and P.12 are the postal acknowledgements for having served the said claim bill and the letter dtd.31-10-2014.
9. All these documents clearly demonstrate that after receiving the goods in good condition from the 1 st plaintiff, the defendant as a carrier has not delivered the same to the consignee in the same good condition and 10 O.S.No.211/2018 while delivering the said consignment, it has caused damages to 8 bags of the animal feeds resulting in a loss of Rs. 86,817/- to the 1st plaintiff and since the 2nd plaintiff is the insurer, it has indemnified the loss sustained by the 1st plaintiff to the tune of Rs. 86,816/- and as per the provisions of Sec. 79 of the Marine Insurance Act, the 1st plaintiff has in turn executed a letter of subrogation cum special power of attorney in favour of the 2nd plaintiff authorizing the 2nd plaintiff to recover the said loss sustained by it from the defendant herein. Since the defendant being a tortfeasor cannot escape from the liability for its wrong and since the 1 st plaintiff having already recovered the compensation from the 2nd plaintiff, it is not entitled to enrich itself unjustly for the injury by recovering compensation for the same loss from more than one source as per the Doctrine of subrogation and the 2nd plaintiff having stepped into the shoes of the 1st plaintiff, is entitled to enforce the rights and liabilities available to the 1st plaintiff and as such, as per the above said decisions relied by the counsel for the plaintiffs, this Court is of the opinion that the plaintiff No. is entitled for recovery of the damages sustained by the 1st plaintiff and reimbursed by it from the hands of the defendant and since the defendant has not contested the above matter in spite of having acknowledged the filing of this suit and since the oral and documentary evidence led in by the plaintiffs remained unchallenged, 11 O.S.No.211/2018 there is no reason for this Court to disbelieve the case put forth by the plaintiffs and to refuse a decree in favour of the plaintiff No.2 as prayed. Hence, this Court is of the opinion that plaintiff No.2 is entitled for recovery of the said sum of Rs.86,817/- from defendant.
10. Though the plaintiffs have claimed interest at the rate of 12% p.a. from the date of suit till the date of realization, in the humble opinion of this Court, if the current interest at the rate of 12% p.a. as claimed by the plaintiffs from the date of filing of the suit till the date of judgment and future interest at the rate of 6% p.a. from the date of this judgment till realization is awarded, it would meet the ends of justice. Hence, I hold that the plaintiffs are entitled to recover a sum of 86,817/- along with interest at the rate of 12% p.a. from the date of suit till the date of this judgment and future interest at the rate of 6% p.a. from the date of this judgment till realization. Accordingly, I answer point no.1 partly in the affirmative.
11. POINT NO.2: In view of the discussions and my answers to the above points, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby decreed in part with costs.12 O.S.No.211/2018
The 2nd plaintiff is entitled to recover Rs.86,817/- (Rupees Eighty Six Thousand Eight Hundred and Seventeen only) with interest at the rate of 12% p.a. from the date of suit till the date of this judgment and future interest at the rate of 6% p.a. from the date of this judgment till realization from the defendant.
The defendant is hereby directed to pay the decreetal amount to the 2nd plaintiff within three months from the date of this judgment & decree.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 24 TH DAY OF FEBRUARY 2020).
(MAANU K.S.), XXX Addl.City Civil & Sessions Judge, Bengaluru City.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W. 1 Mr. C.K.Sudhir.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
NIL.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 Authorization letter.
Ex.P.2 Shipping Invoice.
Ex.P.3 Letter.
13 O.S.No.211/2018
Ex.P.4 Delivery challan.
Ex.P.5 Report of the Surveyors.
Ex.P.6 Marine claim form.
Ex.P.7 Claim bill.
Ex.P.8 certificate of damage.
Ex.P.9 & 10 Letters issued by M/s.VNC Claims
Consultancy.
Ex.P.11 & P.12 Postal acknowledgements. Ex.P.13 Settlement intimation voucher.
Ex.P.14 Agreement of subrogation cum special power of attorney.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
NIL.
(MAANU K.S.), XXX Addl.City Civil & Sessions Judge, Bengaluru City.