Bangalore District Court
) Bharath Electronics Pvt. Ltd vs Dachser India Private Limited on 21 February, 2023
IN THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU CITY [CCH-84]
:Present:
Ravindra Hegde,
M.A., LL.M.,
LXXXIII Addl. City Civil & Sessions Judge,
Bengaluru
Dated on this 21st day of February 2023
COM.O.S.No.95/2020
Plaintiff 1) Bharath Electronics Pvt. Ltd.,
Registered & Corporate Office,
Nagahara, Opp: Outer Ring Road,
Bengaluru-560045,
Represented by its Subrogee/
Power Agent,
M/s. United India Insurance Co. ltd.,
Indian Mutual Building,
3rd Floor, N.R.Square,
Bengaluru-560002.
Who are in turn represented by its
Principal officer.
2) M/s. United India Insurance
Company Limited,
Indian Mutual Building,
3rd Floor, N.R.Square,
Bengaluru-560002,
Represented by its Principal Officer.
(By Sri.P.S.R, Advocate)
// versus //
Defendants 1. Dachser India Private Limited,
No.45, Museum Road, Jubilee Building
Bengaluru-560025.
2
CT 1390_Com.O.S.95-2020_ Judgment.doc
Represented by its Manager.
2. Freight Express International Airport,
A-27, Cargo Village,
Bengaluru-560300
Represented by its Manager.
(D.1 by Sri.D.K.V, Advocate,
D.2 by Sri.A.S.K, Advocate)
[
Date of Institution of the : 19/02/2020
suit
Nature of the suit : Recovery of Money
Date of commencement of : 16/03/2022
recording of the evidence
Date on which the :
Judgment was pronounced. 21/02/2023
: Year Month/ Day/s
Total duration /s s
03 00 02
JUDGMENT
This suit is filed by the plaintiff praying to direct the defendants to pay Rs.19,95,705/- towards damages to the plaintiff No.2 with interest @12% per annum from the date of suit till realization.
2. Case of plaintiff in brief is as under:
Plaintiff No.2 is company registered under the Companies Act and is represented by its Subrogee, United India Insurance Company Limited which is the plaintiff No.2. The defendant No.1 is a private limited company and is an air cargo carrier for reward. 2nd defendant is private limited company which is common carrier for reward. First plaintiff 3 CT 1390_Com.O.S.95-2020_ Judgment.doc in the course of its business, imported a consignment of Wire EDM Makino CNC Wire Electrical Discharge Machine Model U32J from their consignor Makino Asia Pvt. Ltd, Singapore, to their office at Bengaluru as per commercial invoice dated 14/9/2017 valued at SGD 278433. 1st plaintiff engaged the services of 1st and 2nd defendants to carry the suit cargo from Singapore to Bengaluru. The said cargo securely packed in customary packing as standardized for international shipping in wooden case was carried from Singapore to Bengaluru by sea through vessel M/s. Euro Max V-1531W as per bill of lading dated 14/9/2017 and then from Chennai to Bengaluru by ICD Container. In acknowledgment of such entrustment in good order and condition under bill of lading, 1 st plaintiff's custom house clearing and forwarding agent, the 2 nd defendant on behalf of the 1st plaintiff, filed bill of entry. Subsequently, 2nd defendant delivered the suit cargo in a damaged condition at 1st plaintiff's premises on 21/11/2017. 1st plaintiff had insured the said cargo with the 2 nd plaintiff. The defendant did not deliver the suit consignment in the same apparent good order and condition as was entrusted but delivered consignment in damaged condition owing to transit. 1st plaintiff who is the owner at all relevant times, issued statutory notice of loss dated 21/11/2017 and it was served. 1st plaintiff also two other notices dated 27/9/2017 and 6/12/2017, but the defendants have not replied. To ascertain the damage, plaintiff appointed Sri Byraiah who is an independent licensed insurance surveyor and he has 4 CT 1390_Com.O.S.95-2020_ Judgment.doc submitted preliminary survey report dated 22/11/2017. On account of short delivery, plaintiff has suffered loss of Rs.19,95,705/-. Though cost of replacement of parts, service charges totally comes to Rs.23,58,062/-, as stated in the survey report, plaintiffs have restricted net loss to Rs.19,95,705/-. The defendants are liable to pay the value of damaged/short delivered consignment as a common carrier for reward. The damaged delivery and the consequent loss sustained by the plaintiffs is due to negligence, lack of care on the part of the defendant coupled with mis-feasance, mal- feasance and non feasance on part of the defendants. 1 st plaintiff lodged their claim on 17/12/2018 on the 2 nd plaintiff under the policy of insurance. The 2 nd plaintiff indemnified the 1st plaintiff's claim under the insurance policy and paid them a sum of Rs.19,95,705/- on 3/1/2019. On such indemnification, the 1st plaintiff executed a letter of subrogation and special power of Attorney in favour of 2 nd plaintiff at Bengaluru on 3/1/2019, subrogating their rights in favour of the 2nd plaintiff. By virtue of the said execution of letter of subrogation and special power of Attorney and as provided under Section 79 of the Marine Insurance Act, the 2nd plaintiff is entitle to file and maintain the present suit, but to avoid any technical objection 1st plaintiff is also made party to the suit. Plaintiff issued legal notice through counsel and the same is served. Inspite of notice, defendants did not come forward to settle the legitimate claim of the plaintiffs. With these averments, plaintiffs have filed this suit.5
CT 1390_Com.O.S.95-2020_ Judgment.doc
3. Defendants No.1 has not filed written statement. Defendant No.2 has filed written statement and stated that the suit is not maintainable and it is bad in law and is by suppression of material facts and non disclosure of mandatory requirements. It is stated that Bharath Electronic Limited is a Public Limited Company as per the knowledge of the 2nd defendant and the 2nd defendant is freight express international private limited and the defendant No.2 has no such company named Freight Express International Airport. It is stated that the suit is failed to grab money from the defendant No.2 by hiding the material facts. Defendant No.2 has stated the facts and stated that defendant No.2 handled the shipment on FOB basis and the partner of defendant No.2 M/s. All Ports Cargo Services Logistics Pvt. Ltd., Singapore to provide the booking for a 40 feet high cube container and it has been specifically disclosed that handling the trucking, loading and export permit will be their own arrangement and as per the same, shipper picked up the empty container and stuffed and sealed the same in their premises and transported to Singapore port after clearing customs permit under their arrangements and from there to ICD Bengaluru via Chennai port on charges collect basis. It is stated that partner of 2nd defendant picked up the original bill of lading from the agents of the line i.e. Famous pacific lines and the shipment moved from Singapore to ICD Bengaluru and 2 nd defendant picked delivery order from EMU Lines Pvt. Ltd., Chennai who represents Famous Pacific Lines and the 2nd 6 CT 1390_Com.O.S.95-2020_ Judgment.doc defendant was told that there were two packages of wire EDM machines weighing 5180 KGs. The defendant has stated that the shipment was under L/C and container was shipped on board on 14/9/2017 and the partner of 2nd defendant issued HBL to the shipper. It is stated that shipment moved to ICD Bengaluru without any physical involvement of the shipping line, EMU or the 2nd defendant. It is stated that the shipment was customs cleared and delivered to the 1st plaintiff on 7/10/2017 and bill of entry has been filed on 29/7/2017 and after payment of customs duty and collection of original bill of lading the container delivered on 7/10/2017 and it was taken out without opening and inspecting the cargo as the plaintiff is an accredited client with AEO category-2. It is stated that plaintiff has not stated as to whyplaintiff No.1 failed to inspect the cargo delivered on 7/10/2017 in time or why the delay caused in inspecting the same. It is stated that the plaintiff has stated that the container was inspected on 21/11/2017 only without following the procedure of international convention. It is stated that the plaintiff No.1 has not followed the procedure envisaged and instead of that without intimating the same to the defendant No.2, they themselves conducted survey which is illegal. The defendant has also stated that on the alleged date 27/9/2017 mentioned in the notice, no cargo was delivered to the plaintiff No.1 and delivery took place on 7/10/2017. It is stated that even though the office of the 2 nd defendant is too near to the 1st plaintiff and the officers of the 2 nd defendant 7 CT 1390_Com.O.S.95-2020_ Judgment.doc have been visiting the 1st plaintiff's office regularly, no intimation has been passed over to them in the said subject matter. It is stated that the insurance coverage for the said cargo will be lapsed within 30 days as normal rule. It is stated that the involvement of the 2 nd plaintiff is mysterious one as both plaintiff have joined hands with an oblique motive to grab the alleged sum from the defendant No.2. It is stated that defendant No.2 is just an agent whose service charge is just an amount of Rs.2,200/-. The defendant has stated that survey report of Byraiah is illegal and is in departure of normal rules and law and no joint survey was conducted. It is stated that the defendant No.2 has not received any claim from the shipping line regarding the empty container which means there were no internal threat to the container which should absolve the shipping line, port authorities, concor, ICD and the 2nd defendant's transporter from any kind of mishandling. It is stated that as per the procedure the payments are released by the plaintiff No.1 only after verifying a clean delivery challan. It is stated that the defendant No.2 has submitted three invoices relating to the present subject matter dated 9/10/2017, 26/10/2017 and 26/10/2017 and first invoice was for freight and other related expenses pertaining to shipping line, second invoice was for 2 nd defendant's custom clearance charges for loaded container movement to the 1st plaintiff and delivery of empty container to the shipping line and the third invoice was for insurance charges. It is stated that these invoices have been cleared by 8 CT 1390_Com.O.S.95-2020_ Judgment.doc the plaintiff on 27/11/2017 and 3/1/2018 and no payments were withheld by the 1st plaintiff which clearly show that no such damages or loss were caused to the container. It is stated that the claim of policy and its disbursement dated 3/1/2019 is not within the knowledge of the defendant No.2 as the claim made by the 1 st plaintiff is beyond the period. It is stated that there is no cause of action to the suit. It is stated that the plaintiff is seeking relief based the hidden facts to enrich themselves by illegal gain and the plaintiffs are guilty of suppressing the material facts. On all these grounds defendant No.2 has prayed to dismiss the suit with costs.
4. On these pleadings following issues are framed:
1. Whether the plaintiffs prove that due to delivery of consignment in damaged condition by the defendants, plaintiff No.1 has suffered loss of Rs.19,95,705?
2. Whether the plaintiffs prove that the 2nd plaintiff has indemnified the 1st plaintiff's claim under insurance policy and paid Rs.19,95,705/- to the 1st plaintiff?
3. Whether the plaintiffs prove that the 2nd plaintiff as subrogee is entitle to recover Rs.19,95,705/- from the defendants with interest @12% per annum?
4. Whether the plaintiff is entitle for the reliefs prayed?
5. What decree or order?
5. In support of the plaintiff's case PW.1 is examined. Ex.P.1 to Ex.P. 20 documents are marked. For defendants DW.1 is examined.
9CT 1390_Com.O.S.95-2020_ Judgment.doc
6. Heard arguments by learned counsel for plaintiffs. Perused records.
7. My answer to the above issues are :
ISSUE No.1 : In the Negative.
ISSUE No.2 : Do not arise for consideration.
ISSUE No.3 : In the Negative.
ISSUE No.4 : In the Negative.
ISSUE No.5 : As per final order for the following:
REASONS
8. ISSUES No.1 to 4: Since all issues are interlinked with each other, they are taken together for discussion.
9. Case of the plaintiff is that the plaintiff No.1 had imported machines from Makino Asia Pvt. Ltd, Singapore and consignment was dispatched from Singapore to Chennai through vessel and then from Chennai to Bengaluru by ICD Container and the consignment machine with accessories were received in packed condition. According to plaintiffs, on opening the package, during trial run, plaintiff observed discrepancy in the consignment. According to plaintiffs, Plaintiff No.1 came to know that defendants, to whom transportation of consignment was entrusted, have delivered consignment in damaged condition. According to the plaintiff due to this delivery of consignment in damaged condition, plaintiff have suffered loss of Rs.19,95,705/- as assessed by the licensed surveyor. As plaintiff No.1 had taken insurance policy from 2nd plaintiff, it claimed the amount of loss from 2 nd plaintiff and 2nd plaintiff has made payment. Plaintiff No.2 as a Subrogee, has obtained Power of Attorney and letter of 10 CT 1390_Com.O.S.95-2020_ Judgment.doc Subrogation from plaintiff No.1 and filed this suit claiming this amount. Defendant No.2 has filed written statement and denied the claim of the plaintiff and stated that the consignment is delivered in proper condition and container has been delivered to the 1 st plaintiff on 7/10/2017 and plaintiff has falsely stated that container is delivered on 21/11/2017. Defendant has also stated that the plaintiff No.1 without following the procedure has inspected the container and without intimating the damage to the container to the defendant No.2 or to the concerned parties, plaintiffs themselves have conducted the survey which is not permitted and is against the principles of justice. Defendant has also stated that Invoices raised by the 2 nd defendant have been cleared and no payments were withheld on the ground that there is damage caused to the consignment.
10. For the plaintiffs, the Assistant Manager of the 2 nd plaintiff has given evidence as PW.1 and stated the plaint averments in her chief affidavit. In the cross examination, PW.1 has stated that she do not remember the date on which Insurance policy was given and stated that insurance policy was for one year and stated that in September 2017 plaintiff No.1 claimed insurance amount from their company. She has stated that they have collected claim bill, claim form, commercial invoice, packing list, bill of lading, bill of entry and notice of plaintiff No.1 given to the defendant claiming the loss. She has stated that the plaintiff No.1 has claimed Rs.19,95,705/- from their insurance and have collected 11 CT 1390_Com.O.S.95-2020_ Judgment.doc survey report and also delivery chalan for processing the claim. Witness has stated that she is not aware that consignment was carried on freight on board basis. Witness has admitted that seller of the goods Makino Asia is not made party to the suit. Witness has stated that after clearance from Indian Customs Department, machinery came through road from Chennai to Bengaluru and one of the defendant was the transporter. She has stated that she is not aware of the procedure followed by 1st plaintiff on shipment reaching their office. She has stated that plaintiff No.1 has received the consignment in damaged condition and based on the survey report, damage condition of the consignment is ascertained and stated that the survey was conducted on 22/11/2017 by Byraiah. She has stated that she is not aware, whether surveyor gave notice to the defendant before survey. She has also stated she do not know whether the container was damaged at the time of reloading. She has stated that as per the report, packaging was externally in sound condition. PW.1 has also stated that the container was containing EDM machine. She has admitted that the cargo was not delivered to the 1st plaintiff on 21/11/2017 as stated in para 5 of plaint, but it was delivered on 17/10/2017. She has stated that, as per the report of surveyor, container was delivered in damaged condition due to the negligence of the defendants. She has stated that Ramesh Iyengar was the surveyor of the 2nd plaintiff and is independent surveyor. She has admitted that as per the Marine Cargo Policy, damaged 12 CT 1390_Com.O.S.95-2020_ Judgment.doc goods are to be inspected by the 2nd plaintiff company as soon as they notice the damage. She has stated that the Surveyor had inspected the damaged cargo on 10/01/2018. She has stated that no representative of their company has inspected cargo other than Ramesh Iyengar. She has stated that she is not aware that in case of damage to the Cargo in transit, monitory claim is to be made with carrier immediately. She has stated that she has not produced any document to showing terms and conditions of the agreement between plaintiff No.1 and defendant and has stated that they have not received any container damage report form the surveyor or from the defendants. She has stated that she do not know whether consignment was booked on owners risk basis or carriers risk. She has stated that as per the report of Ramesh Iyengar, there was damage in internal part of the machine. She has admitted that on noticing such internal damage to the machine, it is the duty of the plaintiff to intimate shipping company i.e. seller. She has admitted that after one month of delivery, they received the damage intimation and stated that plaintiff No.1 came to know about the damage after inspecting the machine. PW.1 has admitted that as per Ex.P.4, customs clearance is obtained by defendant No.2 and stated that she do not know that, apart from custom clearance there is no other duty on 2nd defendant.
11. Plaintiff has produced copy of the board resolution and authorization letter as Ex.P.1 and Ex.P.2. Copy of commercial invoice dated 14/9/2017 is produced as Ex.P.3 13 CT 1390_Com.O.S.95-2020_ Judgment.doc which show that the machine was purchased by the plaintiff No.1. Bill of entry is produced as Ex.P.4 which show that the defendant No.2 is CHA for transporting this consignment to the place of plaintiff. The interim survey report submitted by Ramesh Iyengar is produced as Ex.P.5 and preliminary survey report prepared by Byraiah is produced as Ex.P.12. The claim bill is produced as Ex.P.6 and this claim is made by plaintiff No.1 before 2nd plaintiff. Copy of bill of lading is produced as Ex.P.7 which show that the goods are to be delivered by Freight Express International Private Limited i.e. stated to be 2nd defendant. Ex.P.8 is the copy of packing note given by the seller machine. Copy of the letter dated 21/11/2017 sent by plaintiff No.1 to defendant No.1 and 2 reporting about consignment received in damaged condition are produced as Ex.P.9 and Ex.P.10. An acknowledgment is produced as Ex.P.11, which show service of a post on 2 nd defendant, which is posted on 6/12/2017. Bill given by Byraiah is produced as Ex.P.13. Ex.P.14 is the copy of marine claim form given by the plaintiff No.1 to the 2 nd plaintiff. Ex.P.15 is the agreement of subrogation cum Special Power of Attorney given by plaintiff No.1 to plaintiff No.2. Copy of legal notice given to defendants No.1 and 2 on 6/11/2019 before filing the suit is produced as Ex.P.16. Postal receipt and acknowledgment are produced as Ex.P.17 to Ex.P.19. PIM Report is marked Ex.P.20.
12. For defendant No.2, its authorized representative has given evidence as DW.1 and has reiterated the contention 14 CT 1390_Com.O.S.95-2020_ Judgment.doc taken in the written statement. In the cross examination, DW.1 has stated that 2nd defendant company provides custom clearance, freight forwarding, transportation and other supply claim management services. Witness has stated that the 1 st plaintiff had engaged their services and their job was to get custom clearance, freight forwarding and also providing transportation. Witness has stated that commercial invoice, bill of lading were given to them for getting custom clearance. Witness has stated that their agent is in Singapore and consignment of this case came from Singapore to Chennai port through sea and from Chennai to Bengaluru, consignment came through ICD container by road. Witness has stated that if the consignment received by them for transportation is in damaged condition and they will not accept the same and will inform the same to the consignee. Witness admitted that the 1st defendant had taken the consignment for transportation through sea from Singapore to Chennai. Witness has stated that the Dachser India Private Limited which is shown as 1st defendant is not involved in entire transaction and they have not transported the consignment from Singapore to Chennai. Witness has stated that the consignment was not opened at any place as the consignee is facilitated AEO category-II. DW.1 has stated that the consignment came from Singapore to Chennai through vessel and denied that this consignment was delivered to the 1st plaintiff in damaged condition. Witness has stated that they have not received Ex.P.10 notice.
15CT 1390_Com.O.S.95-2020_ Judgment.doc Witness has denied that they are informed by the 1 st plaintiff that consignment is received in damaged condition. Witness has admitted that Ex.P.11 postal acknowledgment contains seal of their company and stated that he do not know about Ex.P.12 preliminary survey report. Witness stated that for conducting the survey the plaintiff should intimate the defendant and stated that they have not appointed any surveyor for conducting survey about damage of the consignment. Witness admitted that the 1st plaintiff made a claim with the 2nd defendant for damaging the consignment and he do not know that 2 nd plaintiff has made payment of compensation to 1st plaintiff for loss caused due to damage in consignment delivered. Witness denied that the 2nd defendant is liable to pay the suit claim amount to the plaintiff.
13. On looking to the pleadings, evidence and the documents produced, there is no dispute that the plaintiff No.1 has purchased machine from Makino Asia Pte. Ltd, Singapore, as per the commercial invoice Ex.P.3 and 1 st plaintiff engaged the services of 2nd defendant for getting custom clearance, freight forwarding and providing transportation. It is also not in dispute that the defendants have transported the consignment containing the Machine and Bill of entry as per Ex.P.4 was also given and the consignment was delivered to the plaintiff No.1 on 7/10/2017. In the plaint, plaintiff has stated that consignment was delivered on 21/11/2017 in damaged condition. However PW.1 in the cross examination has 16 CT 1390_Com.O.S.95-2020_ Judgment.doc clearly admitted that consignment was delivered on 7/10/2017 and not on 21/11/2017. Hence as against the plaint averments stating that Cargo was delivered in damaged condition on 21/11/2017 by the defendants to the 1 st plaintiff, it was actually delivered on 7/10/2017.
14. After delivery of the Cargo, 1 st plaintiff is said to have noticed that the Cargo is delivered in damaged condition and to assess damage, survey was conducted through Byraiah as per Ex.P.12. Ex.P.12 show that this Surveyor was engaged by United India Insurance Company Limited i.e. 2 nd plaintiff. PW.1 has stated that they had engaged the surveyor by name Ramesh Iyengar. Interim survey report given by Ramesh Iyengar is produced as Ex.P.5 which is dated 10/9/2018. Even Ex.P.12 it is mentioned that as per the instructions received from United India Insurance Company Limited the preliminary survey was conducted. Therefore, it appears that survey was done by both the Surveyors, at the instance of plaintiff No.2. Both the reports in Ex.P.5 and 12 are interim and preliminary survey reports and there is no final report produced. Marine claim Form was submitted by plaintiff No.1 to the plaintiff No.2 only on 17/12/2018 as appearing in Ex.P.14 and there after, 2 nd plaintiff is said to have paid the amount to plaintiff No.1.
15. On looking to these documents, it is clear that the consignment or Cargo was delivered to plaintiff No.1 by defendant No.2 on 7/10/2017. After delivery, plaintiff No.1 is said to have made payment of invoice amount to defendant 17 CT 1390_Com.O.S.95-2020_ Judgment.doc No.2. At that stage, plaintiff No.1 appears to have not raised such issue of delivery of Cargo in damaged condition. As mentioned in Ex.P.12, inspection was conducted by Byraiah on 22/11/2017 and on the same day he has submitted the preliminary survey report. It is mentioned in Ex.P.12 that, at the time of his inspection Machine was unpacked and was already been installed in the workshop. It is also mentioned that he was informed that consignment of wire EDM machine was neatly packed in metal skid and wooden case and he was informed that during the trial run of the Machine, Geometrical accuracies expected of the machine were not being fulfilled and he was informed that Machine was subjected to rigorous test by the supplier prior to dispatch and the company has also submitted the details of the results obtained during the final testing stage and after inspection and testing by the service engineer. It is mentioned that he was also informed that after installing the Machine, it was clear that there was substantial difference between test results obtained prior to dispatch from Singapore and the results obtained after installation of the machine. On this basis it is reported that the errors are due to transit damage and machine alignment and machine parts are damaged internally and correction activity requires parts replacement for restoring the machine etc. Parts replacement, service charges etc are calculated and then estimation of Rs.21,87,995/- was made. Thereafter, Ex.P.5 interim survey report was also obtained from Ramesh Iyengar on 10/9/2018 18 CT 1390_Com.O.S.95-2020_ Judgment.doc and he has also given similar report and found the total loss as Rs.23,58,062/- and the same is claimed by the 1 st plaintiff from the 2nd plaintiff by Ex.P.14. After receiving this claim, 2nd plaintiff is said to have made payment of Rs.19,95,705/- by restricting net loss. This amount is sought to be recovered from defendants on the ground that Machine alignment and machine parts are damaged internally due to transit damage.
16. According to the plaintiffs, consignment or Cargo was delivered in damaged condition to the plaintiff No.1 by the defendants. As stated above, consignment was delivered on 7/10/2017. As mentioned in Ex.P.12 report, at the time of inspection, machine was already been installed in the workshop and it was already unpacked. Survey was conducted on 22/11/2017, though it was received on 7/10/2017. At the time of inspection it was already unpacked and it was even installed at the workshop of the 1 st plaintiff. It appears, that by that date Machine was even checked by Plaintiff No.1 and also representatives of Seller. When Plaintiff No.1 came to know about such damage caused to Machine in transit is not stated in plaint or evidence. Since survey of Bairaih was conducted at the instance of Plaintiff No.2-Insurer, scope of survey is limited to ascertain the extent of damage caused, to ascertain quantum of compensation to be paid. This Survey is not to ascertain as to, when such damage is caused and who is responsible for such damage. Admittedly, defendants were not informed about such survey and inspection to be conducted and were 19 CT 1390_Com.O.S.95-2020_ Judgment.doc not even asked to participate in such survey. This inspection is also not done immediately on taking delivery of Machine on 7.10.2017 or immediately thereafter. When plaintiff No.1 came to know about such damage caused is also not stated. As per Ex.P.12, on plaintiff No.2 being informed about such damage to the Insured Machine, plaintiff No.2 on 21/11/2017 asked Bairaiah to conduct survey to assess damage and he conducted Survey on 22/11/2017.
17. Plaintiffs have produced copies of two notices stated to have been sent to defendant No.1 and 2 on 21/11/2017, as Ex.P.9 and 10. In Ex.P.10 addressed to defendant No.2, it is mentioned that Dachser India Private Limited has handed over a package to the 2 nd defendant for custom clearance which was packed up from Makino Asia Pte. Ltd, Singapore for onward dispatch to Bharath Electronics Limited, Bengaluru and on receipt of the consignment at the factory it was noticed that wire of machinery were damaged and in this connection there is a provisional claim made for Rs.1,48,54,400/- towards short receipt. However, plain tiffs have not produced any documents to show that Notice as per Ex.P.9 and 10 are served on defendant No.1 and 2 respectively. Documents like postal receipt or acknowledgment for sending these notices are not produced. Plaintiffs have produced a postal acknowledgment as Ex.P.11 of defendant No.2. This postal acknowledgment is for sending letter on 6/12/2017 as date of sending is mentioned. In the plaint, it is stated that on 20 CT 1390_Com.O.S.95-2020_ Judgment.doc 6/12/2017 also, notice was sent to defendants. If Ex.P.11 is in respect of notice sent on 6/12/2017, copy of such notice is not produced by the plaintiffs. Therefore, documents produced by the plaintiffs, do not confirm sending of notice by plaintiff No.1, informing about damage caused to the consignment transported by them and also service of such notice. Hence, it is clear that not only plaintiff No.1 has not complained of any damage to the Cargo immediately when it was delivered and even thereafter, plaintiffs have not served any notice of damage or claim on the defendants.
18. Since, Ex.P.5 and 12 Survey reports given at the instance of Plaintiff No.2 are not prepared on the basis of Survey or Inspection conducted in the presence of Defendants, those Survey reports would be mutual documents between plaintiffs themselves and will not be binding on the defendants. These reports will not establish the claim of plaintiffs against defendants.
19. Apart from this, in Preliminary survey report of Byraiah in Ex.P.12, it is clearly mentioned that consignment containing Machine and accessories were packed in metal skid and Wooden case and the package in wooden case consignment was received in externally sound condition. It is mentioned in Ex.P.12 that, Machine was subjected to rigorous test by Seller prior to dispatch and that, after receiving of Machine, it was noticed that Geometrical accuracies are disturbed. In both the tests, prior to the dispatch and on receiving consignment by plaintiff No.1, 21 CT 1390_Com.O.S.95-2020_ Judgment.doc defendants were not present and defendants were not made aware of the same. Admittedly, Cargo was received by the defendants in proper packed condition and the same is delivered in same external sound condition by the defendant No.2 to the plaintiff No.1. Even at the time of delivery, Machine was found packed in metal skid and accessories were packed in wooden case as found at the time of packing. Hence, Prima facie, there appear to be no lapses on the part of defendants. There is no such evidence placed to show that, at the time of dispatch, Machine was giving certain result and after delivery, there was disturbance to geometrical accuracies of the Machine, which required replacement of parts and expenses towards service charges. There is no evidence placed by the plaintiffs to show that the Cargo containing the machine is received in a damaged condition and that machine is damaged in transit as stated by the plaintiffs.
20. What is the responsibility of the defendants and what is the degree of care that is to be taken by the defendants is also not established. Interestingly, even agreement entered between plaintiff No.1 and defendants and Invoices raised by defendants and details of payment made by plaintiff No.1 to defendants are not produced. What was the condition of the machine earlier and what is the condition of the machine after delivery and installation and how the defendants are responsible for such damage caused, if any, are all necessary to be established before the court by the 22 CT 1390_Com.O.S.95-2020_ Judgment.doc plaintiff. However in this case, though the consignment was delivered on 7/10/2017, defendants were not informed about any such damage to the consignment. Though it is stated that notice is given on 21/11/2017, there are no such documents showing service of Ex.P.9 and.10. For Ex.P.11 acknowledgment for letter dated 6/12/2017, no such letter is produced. Even otherwise, before these dates, survey was already done for which the defendants are not given any notice and they were not even asked to participate. Apart from this, even as per the report, consignment was received in externally sound condition and Machine was packed in metal skid and wooden case and this package was not externally damaged. DW.1 has stated that this consignment was not opened at any place as the consignee is facilitated AEO category-II. Therefore, even for inspection, consignment was not opened at any place from the stage of taking consignment for delivery till it is delivered on 7/10/2017. Therefore, even from the documents of the plaintiff itself, it cannot be made out that the loss or damage is caused in transit. What is the liability of the defendant is also not established by the plaintiff by producing any document. Even the agreement entered with the defendants for transporting by plaintiff No.1 is not produced.
21. Among the documents that are produced by the plaintiffs before the court, most of the documents are internal documents of plaintiffs No.1 and 2 to which the defendants are not having any access and were not party. Under such 23 CT 1390_Com.O.S.95-2020_ Judgment.doc circumstances, though some issues said to have been found in the Machine, when it is installed by the plaintiff No.1, there is absolutely no material before the court to connect those issues in working of the Machine with the defendants. Consignment was delivered in packed condition to the defendant for transit and the same was delivered by the defendant to the plaintiff No.1 in externally sound condition with proper package as received and immediately after receiving the consignment plaintiff No.1 has not complained about any damage. After making payment to plaintiff No.1, by plaintiff No.2, defendants were informed by giving notice as per Ex.P.16 on 6/11/2019. Interestingly even in this notice, defendants were not informed as to what is the amount to be paid and what is the amount that has been paid by plaintiff No.2 to the plaintiff No.1. Therefore, in the entire transaction, defendants were kept in dark and now the plaintiffs are claiming the amount from the defendants.
22. On considering all these aspects, plaintiffs have failed to establish that due to lapses on the part of the defendants, EDM machine sent from Singapore to Bengaluru by Makino Asia Pvt. Ltd, Singapore to plaintiff No.1 is damaged in transit. The plaintiffs have not even established that the damages to EDM machine is caused in transit. Plaintiffs have also not proved that the agreement entered between plaintiff No.1 and defendants requires the defendants to make good the loss suffered by the plaintiffs if any. The plaintiffs have also failed to establish that they have suffered 24 CT 1390_Com.O.S.95-2020_ Judgment.doc loss as stated in the plaint. The plaintiffs have also failed to follow even basic principles of natural justice of conducting a joint survey by giving notice to the defendant or even giving intimation of damage caused, before taking further steps. Therefore, plaintiffs have failed to establish that due to delivery of consignment in damaged condition by the defendants, plaintiff No.1 has suffered loss of Rs.19,95,705/-. As such, plaintiffs are not entitle for recovery of this amount. Hence question of defendants paying interest of 12% per annum as claimed in the suit do not arise.
23. Defendant No.2 has also disputed about the description of the parties mentioned in the plaint. Though in all the documents including Commercial invoice Ex.P.3, Ex.P.4 bill of entry, Ex.P.5 and Ex.P.12 survey report and also Ex.P.6 claim bill, Ex.P.7 bill of lading and even Ex.P.9 and Ex.P.10 letter of the 1st plaintiff to the defendants, name of 1 st plaintiff is shown as Bharath Electronics Ltd., plaintiffs have shown the name of plaintiff No.1 as Bharath Electronics Pvt. Ltd. Therefore, apparently name of plaintiff No.1 is wrongly shown as Bharath Electronic Private Limited instead of Bharath Electronics Ltd. Even after defendant No.2 raising this objection in the written statement, plaintiffs have not even bothered to correct the same. Similarly, defendant No.2 is shown as Freight express international Airport. It is not stated as to whether it is a company, firm or a proprietorship concern. However in all the records like Ex.P.4, Ex.P.7, name of the defendant No.2 is clearly mentioned as Freight express 25 CT 1390_Com.O.S.95-2020_ Judgment.doc international private limited. Even after defendant No.2 stating the same in the written statement, plaintiffs have not bothered to properly describe defendant No.2. Though this has not materially affected the merits of the case, casual manner in which plaintiffs have proceeded in the suit, writ large even on looking to plaint. Looking from any angle, plaintiffs have utterly failed to establish their case.
24. Learned counsel for the plaintiffs has relied on the decision of Hon'ble Supreme Court reported in (2010) 4 SCC 114 (Economic Transport Organization v. Charan Spinning Mills Private Limited and another) in which the Hon'ble Supreme Court has considered as to what is subrogation and principles of equity forming basis of doctrine of subrogation. There is no dispute about the plaintiff No.2 making a claim on the basis of subrogation. However the claim of the plaintiffs against defendants itself is not established in this case. Therefore the decision will not be of much help to the plaintiff in the present case.
25. Another decision reported in ILR 2005 KAR 3403 (Basavaraj Yellappa Pundi v. The National Insurance Company Limited and another) is also cited in which the Hon'ble High Court has held that under Section 10 notice of loss or injury to be given within 6 months and when mandatory requirement as per Section 10 is not complied with, it is within the Court's power to dismiss the suit or non- suit the plaintiff. It is also held that, this do not make it obligatory on the part of the plaintiff to mention the issuance 26 CT 1390_Com.O.S.95-2020_ Judgment.doc of such notice in the plaint itself. It is also held in this decision that the plaintiffs are not required to prove negligence or criminal act in any suit filed by them against common carrier, when the claim is made by the plaintiff for loss, damage or non delivery. In this case the damage to the machinery in transit itself is not established, as consignment was delivered in externally sound condition and in packed condition as it was sent. Apart from this, as held in this decision, as per Section 10, notice of claim is to be given to defendant by the plaintiff. Issuing of such Notice and complying with requirement is not established in this case. On looking to the decision cited by the plaintiffs, though the negligence or criminal act of agent is not required to be proved by the plaintiff, there is basic requirement of proving the damage caused in transit and this burden on the plaintiff is not discharged in the present case.
26. In a decision reported in AIR 2004 Madras 538 (Bond Food Products Pvt. Ltd. and another v. M/s. Planters Airways Limited) it is held that "....surveyor is an expert in the field of survey and unless there be something positive to discredit him, his assessment has to be accepted. It would have been better if he had assessed the quantum of damages in the presence of the appellant. However, the plaintiff would not be non suited and the survey conducted by CP Sarwahi would not be discharged solely for this reason...." In this case, defendants were not even given notice of the intended survey 27 CT 1390_Com.O.S.95-2020_ Judgment.doc and the surveyor is not examined before the court and there is no such evidence placed before the court to establish the survey as contended as per Ex.P.12 and Ex.P.5. The survey report is based on the statement given by Makino Asia, that the error are due to transit damage. Therefore, entire report stating that the error in the machinery as found, is due to transit damage is based on the statement of seller and not on any independent assessment by the surveyor. Even on this ground, defendants cannot be held liable and it cannot be said that the damage to the machine is caused in transit.
27. On considering all these aspects, in the peculiar facts of the present case, plaintiffs have failed to establish their claim made in the present suit against the defendants. Hence plaintiffs are not entitle for the relief prayed in the suit. Whether 2nd plaintiff has indemnified the 1st plaintiff's claim under Insurance policy and paid Rs.19,95,705/-, is not relevant for consideration in this suit as liability of defendants to compensate the plaintiffs is not established. Accordingly, Issue No.2 is answered as, do not arise for consideration and Issue No.1, 3 and 4 are answered in the Negative.
28. ISSUE No.5 : For the discussion made on above issues, following order is passed:
28CT 1390_Com.O.S.95-2020_ Judgment.doc ORDER Suit of the plaintiffs is dismissed with costs.
[Dictated to the Judgment Writer; transcript thereof corrected and then pronounced by me in the Open Court, on this the 21st day of February 2023] [Ravindra Hegde] LXXXIII Additional City Civil Judge.
BENGALURU.
ANNEXURE
1. List of witnesses examined on behalf of Plaintiffs:
PW.1 : Smt. Vineeta Pandey
2. List of witnesses examined on behalf of Defendants:
DW.1 : Suresh Kumar
3. List of documents marked on behalf of Plaintiffs:
Ex.P.1 : C.C of Board Resolution.
Ex.P.2 : Authorization Certificate.
Ex.P.3 : Copy of commercial Invoice dt.14/9/2017.
Ex.P.4 : Bill of entry.
Ex.P.5 : Interim Survey Report.
Ex.P.6 : Claim Bill.
Ex.P.7 : Copy of Bill of Lading.
Ex.P.8 : Copy of packing note.
Ex.P.9& 10 : Copy of notice to defendants No.1 and 2.
Ex.P.11 : Postal acknowledgment.
Ex.P.12 : Preliminary survey report.
Ex.P.13 : Surveyors receipt.
Ex.P.14 : Copy of Marine Claim Form.
Ex.P.15 : Agreement of subrogation.
Ex.P.16 : Copy of Notice.
Ex.P.17 : Postal receipt.
Ex.P.18&19 : Two postal acknowledgments.
Ex.P.20 : PIM Report.
4. List of documents marked on behalf of Defendants:
NIL [Ravindra Hegde] LXXXIII Additional City Civil Judge.
BENGALURU.
***