Bangalore District Court
M/S. Bpl Engineering Ltd vs M/S. Xps Cargo Services on 11 February, 2015
IN THE COURT OF VIII ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-15), BENGALURU CITY
DATED THIS THE 7TH DAY OF APRIL, 2014
PRESENT:
SHRI.MASTER R.K.G.M.M. MAHASWAMIJI,
M.A., LL.B.,
VIII Additional City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT NO. 4907/2003
PLAINTIFFS: 1. M/s. BPL Engineering Ltd.,
Service Division,
No.110, Lalbagh Road,
Bangalore-560 027.
Rep. by its Special power
Of Attorney Subrogee
The New India Assurance Co.
Ltd.
2. The New India Assurance Co.
Limited
Divisional office No.9,
10/13, Nandalekha Buildings,
Queens Road,
Bangalore-560 052.
Rep. by its Senior General
Manager.
(By R. Rajagopalan, Advocate)
/VS/
DEFENDANTS: 1. M/s. XPS Cargo Services,
57/58, Transport House,
2nd Cross, Kalasipalyam
2
O.S.4907/2003
New Extension,
Bangalore-560 002.
Rep. by its Manager
2. The Oriental Insurance Co.
Ltd.
City Branch office,
Represented by its Branch
Manager, 58/1A, I Floor,
Railway Road, Near Neelam
Chowk, Faridabad-121001.
D1 - By B.N.Ananthanarayana,
Advocate; D2 - placed ex-parte
*****
Date of institution of the suit: 14-07-2003
Nature of suit: Suit for damages
Date of commencement of 22-03-2005
Recording the evidence:
Date on which the judgment 07-04-2014
Was pronounced:
Total Duration : 10-Years, 07-Months &
23-Days.
*****
JUDGMENT
3 O.S.4907/2003 The plaintiffs have filed this suit against the defendants praying for decree against the defendants, to pay a sum of Rs. 53,424/- to the plaintiffs along with 12% p.a. future interest with costs.
2. The case of the plaintiffs in brief is as under:
It is stated that the 2nd plaintiff is an Insurance company and the defendant No.1 - M/s. XPS Cargo Services, a transporter engaged in business of transporting goods. The 1st plaintiff had insured their goods with 2nd plaintiff against the loss/damages in transit.
It is further stated that the Ahmedabad unit of 1st plaintiff had engaged the services of 1st defendant for sending their 21 boxes, containing spares of washing machines, compressors etc. to the 1st plaintiff. The consignment was handed over to 1st defendant on 08.07.2000, by declaring value of the consignment and defendant issued docket.
It is pleaded that the consignment was delivered to 1st plaintiff by the 1st defendant on 03.08.2000 in a burnt and 4 O.S.4907/2003 damaged condition; immediately, 1st plaintiff wrote a letter on 04.08.2000 to the 1st defendant holding responsible for the damages and to make good the claim. The 1st defendant issued a certificate of facts on 11.10.2000, admitting that consignment was burnt while it was in their custody.
The 1st plaintiff wrote a letter to 2nd plaintiff Insurance company to depute a surveyor for conducting survey of loss and after survey Mr. Ramesh S. Ayangar submitted report on 08.09.2000 confirming the damage and received Rs.2,790/- as surveyor fee. The 2nd defendant also got assessed the loss through Shashikanth Muddapur and he assessed the loss at Rs.40,000/- by submitting his technical report on 20.06.2001 and received Rs.250/- as surveyor fee.
It is further pleaded that the 1st plaintiff, insured, preferred a claim with 2nd plaintiff-Insruance company and it settled the claim on 23.07.2001 for Rs.39,762/- and the 1st plaintiff has executed a special power of attorney along with letter of subrogation on 27.02.2002 by subrogating all the rights.
5
O.S.4907/2003 Thereafter, the 2nd plaintiff-insurance company contacted the 1st defendant for reimbursement of said amount, but inspite of assurance, 1st defendant did not pay; therefore, 2nd plaintiff caused a legal notice on 16.04.2003, demanding the payment. But the 1st defendant failed to make good the claim.
Therefore the plaintiffs are constrained to file this suit against the defendants praying above reliefs.
3. On receipt of suit summons, the 1st defendant-carrier entered appearance through the counsel; but the 2nd defendant did not enter appearance inspite of servc of summons duly. Therefore, defendant No.2 is placed exparte.
4. The 1st defendant M/s. XPS Cargo services has filed written statement contending inter alia as under:-
The 1st defendant denied all the plaint averments except specifically admitted.6
O.S.4907/2003 It has taken the contention that the suit is hit by doctrine of waiver, estoppel, acquiescence etc.; and this court has no jurisdiction to try the suit.
It has taken further contention that the consignment was entrusted to 1st defendant subject to terms and conditions of lorry receipt and carried at owners risk; the consignor has not packed the consignment properly and there is no negligence of this defendant.
It admitted that the 1st defendant is a carrier. It has taken pleas that there is no privity of contract and the liability of 1st defendant is limited only to Rs.1,000/-
It is stated that the 1st defendant is insured the suit consignment with 2nd defendant-Oriental Insurance Co. Ltd.
It has taken further contention that the 1st plaintiff has paid a sum of Rs. 5,79,748/- to the 1st defendant through the cheques leaving the balance of Rs.28,61,425/- and Rs.10,00,000/- is paid after issuance of notice on 04.02.2005 and there is still a balance of Rs.18,61,425/-. 7
O.S.4907/2003 Hence, the claims of the plaintiff are liable to be adjusted by way of set-off.
Therefore the defendant-carrier prays to dismiss the suit with cost in the interest of justice.
5. On the basis of the pleadings of the parties, the learned predecessor has framed the following issues for consideration and decision:
ISSUES
1. Whether the plaintiffs prove that the consignment entrusted to the defendant for transportation under the lorry receipt No.70637 dated 08.07.2000 was damaged during transit on account of the negligence on the part of the defendant?
2. Whether the plaintiffs entitled to recover Rs.53,424/- from the defendant as claimed?
3. Whether this curt has jurisdiction to entrtain this suit ?
4. Whether the defendants prove that the goods were consigned to them for transportation on at owner's risk as contended in para 8 of the written statement?8
O.S.4907/2003
5. Whether the plaintiffs prove issuance of notice under sec. 10 of the Carriers Act?
6. Whether the defendants prove that the liability is limited to only Rs.1,000/- para 11 of the written statement?
7. What order or decree?
Additional Issue framed on 26.07.2012
1. Whether the defendant is entitled to claim set-off in this suit.
6. The plaintiffs in order to prove their case, the officer of 2nd plaintiff New India Assurance Co. Ltd. is examined as P.W.1 and produced the documents and got marked them as Ex.P.1 to P.14 and closed their side.
7. On the other hand, the legal assistant of 1st defendant is examined as D.W.1 but no documents are got marked.
I heard the arguments and perused the oral and documentary evidence on record.
8. My findings on the aforesaid Issues are as under:
Issue No.1 - In Affirmative, 9 O.S.4907/2003 Issue No.2 - In Partly affirmative, Issue No.3 - In Affirmative, Issue No.4 - In Negative, Issue No.5 - does not arise for consideration Issue No.6 - In Negative, Addl. Issue No.1 - In Negative, Issue No.7 - As per final order for the following:
REASONS
9. ISSUE NO.1 to 6 and Addl. Issue No.1: Since these issues are interlinked with each other, they are taken up together for joint consideration.
It is the case of plaintiffs that the 1st plaintiff had entrusted the goods to the 1st defendant for transportation and it were damaged during transit on account of negligence and they are entitled for recovery of amount paid to 1st plaintiff.
10. The 1st defendant denied some aspects and it has taken the contentions that the goods were transported at owners risk; its liability is limited only to Rs.1,000/- and it is entitled for set-off.
10
O.S.4907/2003 Therefore, it is the duty of plaintiff to prove their case and to prove discharge the burden of proof as per Sec. 101 and 102 of Indian Evidence Act.
11. In this regard, in support of the plaintiffs case, officer of 2nd plaintiff New India Assurance Co. Ltd. is examined as P.W.1 and produced the documents and got marked them as Ex.P.1 to P.14.
12. P.W.1 - D. Soundera raj, an officer of New India Assurance Co. Ltd., the 2nd plaintiff, he stated on his affidavit evidence reiterating the plaint averments.
On perusal of cross-examination of P.W.1, it is noticed that the consignment was entrusted to 1st defendant for transportation from Ahmedabad to Bangalore. Nothing worthmentioning points are elicited in favour of defendants to disbelieve his evidence.
In this instant case, the 1st defendant is examined its officer by D. Somashekararaju as D.W.1. But no documents are got marked.
11
O.S.4907/2003
13. D.W.1 - D. Somashekararaju, he stated on his affidavit evidence, reiterating the contentions contained in the written statement.
On perusal of cross-examination, it is noticed that he admitted entrustment of consignment to the 1st defendant and issuance of Ex.P.4 certificate of facts.
14. In this case, in support of plaintiffs case, they have produced relevant documents i.e. Ex.P.1 to P.14.
Ex.P.1 - Docket dtd. 08.07.2000, which shows that 21 boxes of consignment were entrusted to the 1st defendant for transportation.
Ex.P.2 - Copy of the letter dtd. 04.08.2000, wherein it is seen that this letter is issued by 1st defendant Cargo Services admitting the damages to the space of washing machine/compressor packed in 21 boxes in burnt condition and further it is also seen that the consignment was entrusted in Ahmedabad to deliver the same at destination to Bangalore.
12
O.S.4907/2003 Ex.P.3 - Letter (Notice) dtd. 04.08.2000, it reveals that the 1st plaintiff has insured this letter to the 2nd plaintiff New India Assurance Co. to depute Surveyor to conduct survey of the loss, to proceed insurance claim.
Ex.P.4 - Certificate of facts dtd. 01.10.2000, on reading, it could be seen that facts of loss mentioned as the consignment burnt due to the accident of the vehicle in Chitradurga.
Ex.P.5 - Survey Report dtd. 08.09.2000, on perusal, it is seen that the total value of the consignment is Rs.57,250/- and net loss is worked out at Rs.53,750/- and recommended for settlement.
Ex.P.6 - Bill/receipt having paid survey fee of Rs.2,790/-.
Ex.P.7 - Claim disbursement voucher dtd. 03.01.2001, wherein it discloses that Rs.4,277/- is paid.
Ex.P.8 - Technical report dtd. 20.06.2001, on reading, it could be seen that after investigation, this report is submitted assessing the net loss at Rs.40,000/- after deducting salvage value 13 O.S.4907/2003 Ex.P.9 - Bill dtd. 20.06.2001 in respect of survey fee paid of Rs.250/-.
Ex.P.10 - Claim disbursement voucher dtd. 23.07.2001.
Ex.P.11 - General power of attorney; ExP.12 - Subrogation letter dtd. 22.07.2001, on going through the said documents, it is seen that it is executed by 1st plaintiff in favour by 2nd plaintiff Insurance Company at Bangalore to claim the damages of Rs.42,982/-
Ex.P.13 - Copy of Legal notice dtd. 16.04.2003; Ex.P.14 - acknowledgement thereof, which discloses that the 2nd plaintiff -Insurance company demanded the 1st defendant to pay the settled amount.
From the above evidence of P.W.1 and documents Ex.P.1 to P.14, it could be seen that 1st plaintiff has insured the goods with the 2nd plaintiff-Insurance Company and the goods were damaged in transit and wherefore the 2nd plaintiff has discharged its liability by paying Rs.42,982/- as 14 O.S.4907/2003 damages to the 1st plaintiff by getting executed letter of subrogation and special power of attorney.
15. The oral evidence of P.W.1 coupled with documentary evidence Ex.P.1 to 14 clearly prove that the defendant-carrier is liable to pay damages.
16. In so far as negligence and liability of 1st defendant carrier is concerned, the learned counsel appearing for the plaintiffs is relied upon following decision:
i. It is useful to refer a relevant ruling relied by the plaintiffs counsel 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 :
A. Carriers Act Sec.9 - claim for damage
- loss of goods during transit due to fire - owner of carrier truck admitting loss of goods due to fire - claimant not required to prove negligence or criminal law against common carrier - burden to prove that accident was not due to his negligence but it was act of god 15 O.S.4907/2003 would be on common carrier - failure by him to prove said fact - he would be liable to pay compensation/damages.
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 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 16 O.S.4907/2003 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.
ii. It is also helpful to refer another 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 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 17 O.S.4907/2003 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 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.
iii. It is also profitable to refer another decision relied by the plaintiffs' counsel in between parties i.e. M/s.Karnataka Transport Corporation, Bangalore V/s National Insurance Bank Ltd., Bangalore (AIR 1999 KAR.
233), wherein the Hon'ble Karnataka High Court is held that 18 O.S.4907/2003 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 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 19 O.S.4907/2003 and burden lie on the defendant to establish it.
iv. It is also lucrative to quote another ruling relied by the plaintiffs' counsel 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 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.
17. The supra noted rulings and the principles laid down thereof made it crystal clear that the plaintiff is not 20 O.S.4907/2003 necessary to prove the negligence of defendant-carrier. The burden of proof is on the defendant-carrier to rebut the presumption regarding negligence.
For the reasons stated above, in the light of supra noted authorities under the facts and circumstances of this case, I hold and record my findings on issue No.1 in Affirmative and Issue No.4 in Negative.
18. In so far as Issue No.2, whether the plaintiffs are entitled to the suit claim is concerned, as per Ex.P.8 Technical Report the loss is assessed at Rs.40,000/- and as per Ex.P.11 and 12 Special power of attorney and letter of subrogation, the 1st plaintiff is authorized the 2nd plaintiff Insurance company to recover Rs.42,982/-. Therefore, as such, under the facts and circumstances of this case and I constrained to hold and record my findings on this issue No.2 that plaintiffs are entitled for recovery of Rs.42,982/- with interest; accordingly, issue No.2 is answered in partly affirmative
19. In so far as issue No.3 jurisdiction of this Court to entertain and try the matter is concerned, as per Ex.P.3 the goods were entrusted at Ahmedabad to transport 21 O.S.4907/2003 to Bangalore. This aspect is not in dispute; moreover, the Ex.P.4 certificate of facts goes to show that the consignment was burnt due to the accident of vehicles at Chitradurga. Beside that, the special power of attorney and letter of subrogation is executed by the 1st plaintiff in favour of 2nd plaintiff - Insurance Company at Bangalore. Therefore, this court has jurisdiction to entertain and try this matter. Hence I hold and record my findings on Issue No.3 in Affirmative.
20. In so far as issue No.5, regarding issuance of notice under Sec. 10 of Carriers Act is concerned, Ex.P.4 certificate of facts indicates that the 1st defendant XPS Cargo itself issued this letter stating that goods are burnt due to the accident of vehicle and further Ex.P.2 letter (Notice) dtd. 04.08.2000, goes to show that the 1st defendant is acknowledged the copy of this letter sent by 1st plaintiff. Therefore, it can be concluded that there is notice of damage/loss.
21. In this context, it is relevant and profitable to refer a ruling in BASAVARAJ YELLAPPA PUNDI VS. THE NATIONAL INSURANCE COMPANY LTD. AND ANOTHER (ILR 2005 KAR 22 O.S.4907/2003 3403), wherein the Hon'ble High Court of Karnataka is held as under :
(B) Carriers Act (3 of 1865), S.10 - Suit for damages
- Notice before institution of suit - Object thereof is to bring to notice of concerned person the loss caused by non delivery of goods - It is not obligatory on part of plaintiff to mention issuance of notice in plaint itself.
Therefore, for the reasons stated above, under the facts and circumstances of this case, I hold and record my findings on this issue No.5 in as it does not arise for consideration.
22. In so far as issue No.6 that whether 1st defendant proves that its liability is limited only to Rs.1,000/- and additional issue No.1 that whether 1st defendant is entitled to claim set off are concerned, although, the 1st defendant is examined its officer, no documents to prove its contentions that the liability is limited only to Rs.1,000/- and it is (1st defendant) entitled for set off, are produced; there is only bare statement in the evidence and it is not corroborated by any documentary 23 O.S.4907/2003 evidence. Therefore the main allegations in the evidence cannot be accepted.
Regarding liability to pay the liability is concerned, Although, the 1st defendant is contended that it has insured the suit goods with 2nd defendant oriental insurance co. it has failed to produce valid insurance policy to that effect. Therefore, it can be concluded that the 1st defendant has not insured the suit goods for consignment with the 2nd defendant insurance company. As such, it is inevitable to hold and fix the liability only on 1st defendant to pay the damages.
In view of the aforesaid reasons, under the facts and circumstances of this case, I hold and record my findings on issue No.6 and additional issue No.1 in negative.
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.
23. ISSUE NO.7: In view of my findings on aforesaid issues, discussions and foregoing reasons, in the light of 24 O.S.4907/2003 authorities, under the facts and circumstances of this case, I am of the considered opinion and inclined to hold that the 2nd plaintiff-insurance company is entitled for the relief as already held. It is fit case to grant such reliefs, since there is sufficient and satisfactory oral and documentary evidence on record to the required civil standard/preponderance of probabilities. Accordingly, I answered above issues and proceed to pass the following:
ORDER In the result, therefore this suit filed by the plaintiffs against the 1st defendant-carrier and 2nd defendant is hereby partly decreed with costs.
Consequently, the defendant - carrier is held liable and hereby directed to pay sum of Rs. 42,982/- as damages, with interest at the rate of 6% per annum pendentelite and future interest till the date of realization of decreed amount within three (3) months from the date of this order.
The 2nd defendant-Insurance company is exonerated from liability.25
O.S.4907/2003 Draw decree accordingly.
(Dictated to the Stenographer, directly over computer, typed matter, corrected, signed and then pronounced by me in open Court on this the 7th day of April, 2014.) (MASTER R.K.G.M.M. MAHASWAMIJI) VIII Additional City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the plaintiff;
P.W.1- D. Soundera raj List of Documents marked on behalf of the plaintiff:-
Ex.P.1 Docket dtd. 08.07.2000
Ex.P.2 Copy of the letter dtd. 04.08.2000
Ex.P.3 Letter(Notice) dtd. 04.08.2000
Ex.P.4 Certificate of facts dtd. 01.10.2000
Ex.P.5 Survey Report dtd. 08.09.2000
Ex.P.6 Bill/receipt for having paid survey
for Rs.2790/-.
Ex.P.7 Claim disbursement voucher
Ex.P.8 Technical report dtd. 20.06.2001
Ex.P.9 Bill dtd. 20.06.2001
Ex.P.10 Claim disbursement voucher dtd.
23.07.2001
Ex.P.11 GPA
Ex.P.12 Subrogation letter dtd.22.07.2001
Ex.P.13 Legal notice dtd. 16.04.2003
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O.S.4907/2003
Ex.P.14 Endorsement thereof
List of witnesses examined on behalf of the defendant :-
D.W.1 D. Somashekararaju List of Documents marked on behalf of the Defendant :-
Nil VIII Addl. City Civil & Sessions Judge, Bengaluru.
07.04.2014 P-RR D1-BNA For Judgment (The following Judgment is pronounced in the open court vide separate) ORDER In the result, therefore this suit filed by the plaintiffs against the 1st defendant-carrier and 2nd defendant is hereby partly decreed with costs.
Consequently, the defendant - carrier is held liable and hereby directed to pay sum of Rs. 42,982/- as damages, with interest at the rate of 6% per annum pendentelite and future interest till the date of realization of decreed amount within three (3) months from the date of this order.
The 2nd defendant-Insurance company is exonerated from liability.
28
O.S.4907/2003 Draw decree accordingly.
VIII ACC & SJ, Bengaluru.