Bangalore District Court
M/S.Bosch Ltd vs Unknown on 31 July, 2015
IN THE COURT OF THE LXI CITY CIVIL JUDGE,
BENGALURU. (CCH-62)
Dated this the 31st day of July, 2015
-: PRESENT :-
SRI.N.P.KOPARDE, B.A.,LL.B.(Spl.)
LXI Addl.City Civil Judge,
C/c. of VIII Addl. City Civil Judge,
Bengaluru.
ORIGINAL SUIT No. 4705/2013
PLAINTIFFS:
1. M/s.Bosch Ltd., Hosur Road,
Adugodi, Bengaluru - 560030.
Represented by Power
Agent/subrogee M/s. United India
Insurance Co.Ltd., 24, Classic
Building, Richmond Road, Bengaluru.
Represented by their Assistant
Manager Sri.G.R.Prakash, 57 years.
2. M/s. United India Insurance Co.Ltd.,
Divisional Office III, No.24, Classic
Building, 1st Floor, Richmond Road,
Bengaluru-560 025. Represented by
their Assistant Manager
Sri.G.R.Prakash, 57 years.
(By Sri.P.S.Ranganathan, Advocate)
/2/ O.S.No.4705/2013
/ VERSUS /
DEFENDANT :
M/s. Jupiter Parcel Service, No.5-D/2, I
Floor, SIDCO Main Road, K.K.D. Nagar,
Chennai - 600 118. Represented by its
authorized Manager.
(Ex-parte)
***
Date of institution of the suit : 29.06.2013.
Nature of suit : Suit for damages.
Date of commencement of
Recording the evidence : 22.06.2015
Date on which the judgment
was pronounced : 31.07.2015
Total duration : Year/s Month/s Day/s.
02 01 02
(N.P.Koparde)
LXI Addl. City Civil Judge,
C/c. of VIII Addl.City Civil Judge,
Bangaluru.
***
/3/ O.S.No.4705/2013
JUDGMENT
The plaintiffs have filed this suit against the defendant
- carrier, praying to hold the defendant liable and to direct the defendant to pay the 2nd plaintiff a sum of Rs.57,410/- with interest @ 12% per annum till the date of realization with cost.
2. After registration of the suit, summons issued to the defendant. In spite of service of summons, defendant remained absent. So, it was placed ex-parte.
3. The plaintiffs in order to prove their case examined its official Smt. Yamuna as P.W.1 and got marked in all 13 documents at Exs.P.1 to P.13 and closed its side.
4. I have heard the arguments of plaintiffs. Perused the materials placed on record.
5. The following points arise for consideration :
/4/ O.S.No.4705/2013
1) Whether the plaintiffs prove that the
defendant-carrier delivered the suit
consignment in a damaged condition at destination and therefore, the plaintiffs are entitled for a sum of Rs.57,410/- with interest at the rate of 12% p.a. as prayed?
2) What order or decree ?
6. My findings on the above points are as under :
Point No.1 : In the affirmative.
Point No.2 : As per the final order, for the following :
REASONS
7. Point No.1 : - It is the case of the plaintiffs that, plaintiff No.1 is the public limited company and the second plaintiff is a general insurance. The defendant is a private limited company, common carrier for reward. The first plaintiff during the course of business dispatched a common consignment of power tools from Chennai to Kolkatta as per /5/ O.S.No.4705/2013 the invoices. The said consignment was securely packed and entrusted to the defendant - common carrier for safe carriage from Chennai and delivery to the first plaintiff office at Kolkatta. In acknowledgement of such entrustment in good order and consignment, the defendant - common carrier issued consignment note bearing No.0051374 dated 27.7.2012 and undertook to care for carrying and delivering the said consignment in the same good order and condition to the first plaintiff's office at Kolkatta. The first plaintiff had insured the consignment with the second plaintiff vide their insurance policy. It is further contended that the defendant
- carrier delivered the consignment in a damaged condition at destination. The first plaintiff who is the owner of the said consignment at all relevant times issued a statutory notice of loss to the defendant on 19.9.2010 by hand delivery informing the defendant about the loss and claiming loss amount from the defendant. Said notice of loss was duly /6/ O.S.No.4705/2013 served on the defendant under clear seal and signature. The defendant issued certificate dated 20.1.2011 admitting the damaged delivery and the value of the loss also. The first plaintiff appointed M/s. Marine Surveyors, the Surveyors and Loss Assessors, valuer licensed under the Insurance Act to assess the loss suffered by the first plaintiff and the Surveyor after detailed survey, submitted survey report stating that the first plaintiff suffered loss to the tune of Rs.57,410/-. The defendant - carrier admitted the damage by issuing a certificate on 20.1.2011. The first plaintiff lodged a claim to the second plaintiff and the second plaintiff settled the claim and the first plaintiff executed a letter of subrogation and special power of attorney in favour of 2nd plaintiff on 26.4.2011 by subrogating its rights. M/s. VMC Claims Consultancy, the recovery agents sent a claim letter dated 3.5.2012 to the defendant, calling upon the defendant to compensate the loss. But, the defendant failed to settle /7/ O.S.No.4705/2013 their claim. Hence, the plaintiffs are constrained to file this suit for the above reasons.
8. P.W.1 reiterated the averments of the plaint contending that the defendant - carrier caused loss to the tune of Rs. 57,410/- to the plaintiffs. So, it is liable to pay an amount of Rs. 57,410/- with interest at the rate of 12 % p.a. The plaintiffs to substantiate their case got marked in all 13 documents. The evidence of P.W.1 remained un-rebutted, unimpeached and uncontroverted. Therefore, I have no other way to accept the contention of the plaintiffs. Moreover, the evidence of witness in my opinion is a credible and inspire the confidence in the mind of the Court. The plaintiffs have produced Exs.P.1 to P.13 :
1 Exs.P.1 to P.3 : Invoices issued by the 1st plaintiff to consignee dated 27.7.2010, it shows that consignment was purchased by the 1st plaintiff and sent to consignee.
2 Ex.P.4 : Consignment note issued by the defendant dated 27.7.2010, it discloses that the goods/consignment were entrusted by the 1st /8/ O.S.No.4705/2013 plaintiff to the defendant - carrier. 3 Ex.P.5 : Office copy of notice with acknowledgment dated 20.1.2011, it reveals that the 1st plaintiff issued the notice to the defendant regarding loss or damage of consignment.
4 Ex.P.6 : Damage certificate dated 20.1.2011 issued by the defendant to the 1st Plaintiff, it reveals that the goods i.e. the electric power tools were delivered in damaged condition during transit.
5 Ex.P.7 : Original Survey report dated 28.1.2011, it goes to show that the damage/loss was assessed by the M/s. Sea Marine Surveyors and submitted report.
6 Ex.P.8 : Claim bill dated 17.2.2011 lodged by 1st plaintiff to the 2nd plaintiff 7 Ex.P.9 - Settlement intimation voucher issued by the 1st the plaintiff to 2nd the plaintiff dated 3.3.2011, which shows that the 2nd plaintiff has settled claim with the 1st plaintiff for Rs.57,410/-. 8 Ex.P.10 - Letter of subrogation and special power of attorney dated 26.04.2011 executed by the plaintiff infavour of 2nd plaintiff, it discloses that the 1st plaintiff has executed this letter of subrogation and special power of attorney in favour of the 2nd plaintiff by assigning the rights.
9 Exs.P.1 & 12 : Office Copies of Letters of claim deals issued by the plaintiffs to the defendant.
10. Ex.P. 13 : Postal acknowledgment.
/9/ O.S.No.4705/2013
9. On careful perusal of the above documents produced by the plaintiffs, it becomes clear that although, the 2nd plaintiff settled claim of 1st plaintiff for Rs.57,410/-.
Although, the survey report does not contain regarding the table of assessment of loss/damage, but Ex.P.6 - damage certificate issued by the defendant itself contain the estimated value of damage at total Rs.57,410/-. Therefore, it is safe to conclude that plaintiffs are entitled for damages of Rs.57,410/-. The oral evidence of P.W.1 coupled with documentary evidence i.e. Ex.P.1 to Ex.P.13 prove the case of the plaintiffs as already held.
10. In so far as negligence and liability of defendant carrier is concerned: It is useful to refer a decision in NATH BROS EXIM INTERNATINAL LTD. VS. BEST ROADWAYS LTD. ((2000) 4 SCC 553), wherein the Hon'ble Apex Court of India is held that :
/ 10 / O.S.No.4705/2013 Consumer Protection Act, 1986- S.2(1)(d) - Carriers Act, 1865, Ss.6,8 and 9 -Defect in service- Goods entrusted to common carrier for transportation- Liability of common carrier, held, would be governed by Carriers Act- Ss.151 and 152 of Contract Act not applicable- Liability same as that of an insurer- Carrier has to take due care of the goods as he would have taken of his own goods- He would be liable for the loss or damage cause to the goods due to this own negligence or criminal act or that of his agent or servants, notwithstanding any special contract limiting his liability as envisaged under S.6 of Carriers Act- even if the goods were booked with the carrier "at owner's risk", that would not exempt the carrier from his own negligence or that of his agent or servants-
It is further held that in a suit filed for recovery of damages, burden will not lie on the plaintiff owner to prove that the loss or / 11 / O.S.No.4705/2013 damage to the goods was caused owing to negligence or criminal act of the carrier or his agent or servants by virtue of S.9 of Carriers Act- Only exception to the carrier's liability is where the loss or damage is caused due to an act of God or enemies of the State- Goods booked by appellant with respondent common carrier "at owner's risk" for transportation-Goods, while stored in godown destroyed by fire.
Claim petition filed by the appellant before the National Commission alleging deficiency in service. But it was dismissed by taking the view that respondent would not be liable as it had taken all possible care which was expected of it as a carrier- Held, this was not the correct approach- Case remanded to National Commission for disposal afresh.
11. It is also profitable to refer another decision in between parties i.e. M/s.KARNATAKA TRANSPORT / 12 / O.S.No.4705/2013 CORPORATION, BANGALORE V/S NATIONAL INSURANCE BANK LTD., BANGALORE (AIR 1999 KAR.
233), wherein the Hon'ble Karnataka High Court is held that:
Carriers Act (3 of 1865), S.9- Suit for loss, damage or non-delivery of goods- Negligence of carriers-Burden of proof is not on plaintiff, but on defendant-carrier to prove that there was no negligence on his part.
By holding as above, it is observed that in a suit for loss, damage or non delivery of goods filed against the carrier, the plaintiff is not required to prove negligence ordinarily. He has only to prove that goods were delivered to the carrier or entrusted to the carrier for being taken to the destination and being delivered to the consignee. He has to prove that goods were either not delivered or that they were delivered in damaged condition - Once these two facts have been established, the presumption of negligence will arise in favour of the plaintiff that there were negligence on the / 13 / O.S.No.4705/2013 part of the carrier unless the defendant carrier produces evidence to rebut it and unless and until defendant carrier proves that the loss has been caused due to the act of god and the cause for loss has not been the negligence of the carrier i.e. inevitable accident which could not be avoided in spite of best efforts and burden lie on the defendant to establish it.
12. It is also lucrative to quote another ruling in PATEL ROADWAYS LTD., V/S BIRLA YAMAHA LTD., reported in (AIR 2000 SC PAGE 1461), wherein the Hon'ble Supreme Court is held as under :
"Section 9 of Carriers Act, 1865, Common carrier
- Liability - Equivalent to that of insurer - Loss or damage to goods entrusted to carrier -Consignor need not prove negligence.
By holding thus, it is observed that the liability of a common carrier under the carriers act is that of on insurer. As per Sec. 9 of Carriers Act in case of claim of damage / 14 / O.S.No.4705/2013 or loss to or deterioration of goods entrusted to a carrier, it is not necessary for the plaintiff to establish negligence. The general principle of tortious liability that who alleges negligence must prove has no application to a case covered under the Carriers Act.
13. It is also advantageous to refer a relevant ruling reported in ILR 2005 KAR 3403 in between BASAVARAJ YELLAPPA PUNDI VS. THE NATIONAL INSURANCE COMPANY LTD. AND ANOTHER, wherein the Hon'ble High Court of Karnataka is held as under :
"The very Section would indicate that in a claim made by the plaintiff for loss, damage or non-delivery, the plaintiffs are not required to prove negligence or criminal act in any suit filed by them against the common carrier claiming compensation, damage etc. The moment the goods are not delivered to the consignee as per the contract between the consignor and the carrier he becomes / 15 / O.S.No.4705/2013 liable to pay any loss caused on account of non-delivery of the goods.
The rights and liabilities arising on account of the appellant carrying the goods of the consignee as a public carrier cannot be restricted or restrained by virtue of a contract.
By occurrence of the accident or under the law of the land, the carrier would be responsible for all the losses caused to the consignee if the goods are not delivered intact as they were handed over to the carrier. For all the losses caused to the consignee, the carrier alone is responsible. By virtue of insurance policy being taken in respect of the goods that were transported by the consignee in the truck of the appellant, a different relationship altogether between the insurer and the insured comes into existence. By virtue of the policy the first plaintiff becomes liable to compensate the losses caused to the second plaintiff".
14. The supra noted rulings and the principles laid down thereof made it crystal clear that the plaintiffs are not / 16 / O.S.No.4705/2013 necessary to prove the negligence of defendant-carrier. The burden of proof is on the defendant-carrier to rebut the presumption regarding negligence.
15. In so far as interest is concerned, in my considered view 6% interest per annum is just and proper under the facts and circumstances of this case. Accordingly, I answer point No.1 partly in the affirmative.
16. POINT No.2: Having regard to my above observations, my findings on the above point No.1 in affirmative, I proceed to pass the following:-
ORDER The suit of the plaintiffs against the defendant is partly decreed with costs.
The defendant is directed to pay a sum of Rs. 57,410/- as damages, with interest at the rate of 6% per annum pendentelite and future interest till the date of realization of decreed amount.
/ 17 / O.S.No.4705/2013 Draw decree accordingly.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in the open Court on this the 31st day of July, 2015).
(N.P.Koparde) LXI Addl. City Civil Judge, C/c. of VIII Addl.City Civil Judge, Bangaluru.
ANNEXURE List of Witnesses examined on behalf of the plaintiffs :
P.W.1 : Smt. Yamuna.
List of Documents marked on behalf of the plaintiffs :-
Ex.P.1 to 3 3 Invoices
Ex.P.4 Consignment note
Ex.P.5 Notice of loss with acknowledgment
Ex.P.6 Damage Certificate dated 20.1.11
Ex.P.7 Original Survey Report dated
28.1.2011.
Ex.P.8 Claim Bill dtd. 17.2.2011
Ex.P.9 Claim disbursement voucher.
Ex.P.10 Letter of Subrogation & SPA.
Ex.P.11 & 12 Office copies of claim bills sent by
plaintiffs.
Ex.P.13 Postal acknowledgment.
/ 18 / O.S.No.4705/2013
List of Witnesses examined on behalf of the Defendant :-
Nil List of Documents marked on behalf of the Defendant :-
Nil (N.P.Koparde) LXI Addl. City Civil Judge, C/c. of VIII Addl.City Civil Judge, Bangaluru.
*** Md/-
/ 19 / O.S.No.4705/2013 / 20 / O.S.No.4705/2013 Judgment pronounced in open Court (vide separate judgment) with the following order :-
ORDER The suit of the plaintiffs against the defendant is partly decreed with costs.
The defendant is directed to pay a sum of Rs. 57,410/- as damages, with interest at the rate of 6% per annum pendentelite and future interest till the date of realization of decreed amount.
Draw decree accordingly.
(N.P.Koparde) LXI ACC&SJ & C/C of VIII ACCJ, Bengaluru.