Bangalore District Court
Shabri Enterprises vs M/S. Professional Couriers on 28 June, 2019
IN THE COURT OF THE IV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-21)
Dated: This the 28th day of June 2019
PRESENT:
Sri. MOHAMMED MUJEER ULLA C.G. B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge,
Bengaluru. (Concurrent charge).
Original Suit No.25719/2011
Plaintiff: Shabri Enterprises,
Having its office at Kodi circle,
White field post,
White field main road, Varthus Hobli,
Bengaluru east taluk,
Bengaluru-66.
Mr. C.Chandraraj, aged 41 years,
S/o Late Chinnaswamy,
Managing Partner.
-Vs-
Defendants: 1. M/s. Professional Couriers
Shop No.3, 1st floor, Abbanna Complex,
Near Sigma Tech Park,
Behind water Woods Apartments,
Ramagondanahalli village,
2 O.S.No.25719/2011
Whitefield main road,
Bengaluru-560 066.
2. M/s. Professional Couriers,
Its head office/Central office at
No.57, next to IDBI bank,
Mission road, Bengaluru-27.
Date of Institution of the suit 11-04-2011
Nature of the Suit (Suit on pro-note, suit for
declaration and possession, suit for injunction, Money Suit
etc.)
Date of the commencement of recording of
02-09-2014
the Evidence.
Date of pronouncement of Judgment 28-06-2019
Total duration Years Months Days
08 02 17
J U D G M E N T
Plaintiff, Shabri Enterprises has filed the instant suit against defendants, M/s. Professional Couriers for recovery of damages in a sum of Rs.2 lakhs with interest at the rate of 24% per annum from the date of the suit till payment and for cost.
Facts of the case:
3 O.S.No.25719/2011
2. Plaintiff is a partnership firm having 2 partners. On 07.02.2011 the plaintiff entrusted a cover containing tender forms to be submitted to M/s. Sanmina SCI India Pvt. Limited, M/s. Samsung India Pvt Limited, M/s. YCH to the 1st defendant. The said cover should reach to the addressee within a week, but it did not reach in time. Therefore, the tender which has to be given to Plaintiff Company was cancelled. On 11.02.2011 it has given complaint to the 1st defendant regarding non-service of courier. 1st defendant received the notice but not given reply. Plaintiff contends that in view of oral assurance given by the above 3 companies it has called employees from the other states for doing house keeping services Due to the negligence of defendants it has suffered loss. Therefore, the defendants are liable to pay loss/damages of Rs.2 lakhs with interest at the rate of 24% per annum from the date of the suit till payment.
3. Defendants resisted the suit by filing written statement. Defendants admitted that on 07.02.2011 4 O.S.No.25719/2011 plaintiff entrusted a cover to the 1st defendant to deliver the same to the addressee. Within a reasonable time the said cover was reached to the addressee. Therefore, there is no negligence or lapse on the part of courier service in delivering the cover. Defendants contend that what was kept in the cover entrusted by the plaintiff is not known to them. At the time of handing over the cover, plaintiff has not disclosed the documents kept in the said cover. Therefore, they have received the cover as an un-insurable consignment for delivery. Defendants denied that in the consignment in question, plaintiff has kept tender forms of 3 companies, due to the negligence of defendants the tender was cancelled and therefore the plaintiff suffered loss of Rs.2 lakhs. Defendants contend that as per the terms and conditions mentioned in the courier receipts, in case of loss or damage to the consignment their liability is upto Rs.100/-. They contend that they are not liable to pay damages more than Rs.100/- in case of plaintiff established their negligency in delivering the consignment of plaintiff. On these and 5 O.S.No.25719/2011 other grounds stated in the written statement, defendants pray to dismiss the suit.
4. On the basis of aforesaid pleadings, the then Presiding Officer has formulated the following Issues on 06-12-2013:-
1. Whether the plaintiff proves that, defendants are liable to pay a sum of Rs.2,00,000/-?
2. Whether the 2nd defendant proves that, there is no lapse and negligence on the part of defendant and he is not liable to pay any compensation?
3. Whether the plaintiff is entitled for interest at the rate of 24% per annum?
4. Whether the plaintiff is entitled for the relief's sought for?
5. What order or decree?
5. It is well settled law that a person who asserts the facts has to prove the same. In the instant case, plaintiff contends that defendants are negligent in delivering the consignment and due to the negligence it has suffered loss. Therefore, the burden would lie on 6 O.S.No.25719/2011 plaintiff to prove that defendants are negligent in delivering the consignment and due to that it has suffered loss. But a perusal of above issues would show that burden was placed on 2nd defendant to prove that there is no lapse or negligence on his part and therefore he is not liable to pay compensation. Thus a negative burden was placed on 2nd defendant. It is not proper.
Therefore, I delete issue No.2 and re-cast it as under:-
Whether the plaintiff proves that defendants are negligent in delivering the consignment and due to their negligence it has suffered loss?
6. On behalf of Plaintiff its partner C.Chandraraj examined as PW1 and produced documents marked at Ex.P.1 to 8. On behalf of Defendants Manager of Professional couriers namely Jagadish Chandra examined as DW.1. Defendants have not produced any documentary evidence.
7. Heard the arguments of both side and perused record.7 O.S.No.25719/2011
8. A perusal of evidence would show that both the parties have led evidence to prove the contentions put forth in their respective pleadings. Therefore, I am of the view that there is no necessity to provide an opportunity to parties to lead further evidence, in view of issue No.2 is recasted.
9. My findings on the above issues are as under:-
Issue No.1: In the Negative.
Re-casted
Issue No.2: In the Negative.
Issue No.3: In the Negative.
Issue No.4: In the Negative.
Issue No.5: As per the final order, for the
following:
R E A S O N S
10. Issue Nos.1 & 2: These 2 issues are inter-
linked and inter-connected to each other. Therefore to avoid repetition of facts and evidence and also for convenience, they are taken together for consideration. 8 O.S.No.25719/2011
11. In the instant case, there is no dispute that on 07.02.2011 the plaintiff has entrusted a sealed cover to 1st defendant for delivery to the addressee. A perusal of Ex.P.5 courier receipt would show that the said cover was addressed to Mr.Azaruddin, Supervisor, Tamilnadu. The phone number of the addressee is also noted. DW.1 Jagadish Chandra, the manager of the 2nd defendant in the cross-examination has stated that after receipt of consignment to be delivered to the Tamilnadu, if there is/are no holidays it will be delivered within 2-3 days. After receipt of consignment it is the duty of the courier service to provide information regarding on which date it was delivered to the addressee. In the written statement or DW.1 in the examination-in-chief has not stated on which date the consignment received on 07.02.2011 from the plaintiff company was delivered to the consignee. DW.1 in the cross-examination has stated that he can't say on which date the consignment received from plaintiff/consignor delivered to the consignee. 9 O.S.No.25719/2011
12. In the plaint except baldly contending that the consignment in question was not delivered to the consignee in time plaintiff has not stated when the consignment was delivered to the consignee. PW.1 in the evidence has also not stated regarding when the consignment was reached to the consignee. Ex.P.1 is the notice dated 26.02.2011 sent by plaintiff to the defendants. In Ex.P.1 notice in Para No.8 it is stated that consignment in question was reached to the consignee on 25.02.2011. In Ex.P.5 courier receipt it is noted that the complaint regarding non-delivery of consignment shall be submitted within 30 days from the date of booking. No complaints or claims will be accepted after 30 days.
13. PW.1 in the evidence has stated that on 11.02.2007 he has given letter/complaint to the defendants regarding non-service of consignment. After receipt of the letter, the 1st defendant treated it as complaint, and given complaint No.34428. After receipt of complaint, the defendants have not provided information regarding service of consignment to the 10 O.S.No.25719/2011 consignee. Defendants have denied the receipt of any letter or complaint from the plaintiff on 11.02.2011. Plaintiff has not produced any document to show that on 11.02.2011 it has given letter/complaint to the defendants about non-service of consignment dated 07.02.2011 to the consignee. Plaintiff has produced the photo copy of the complaint dated 11.02.2011. It is not marked as exhibit. DW.1 has denied that on 11.02.2011 plaintiff has given complaint to the defendants regarding non-delivery of consignment. When such is the case, the burden is on the plaintiff to prove that within 30 days from the date of booking of consignment complaint was given to the defendant regarding non-service of consignment. But in the instant case, plaintiff except producing the photo copy of the complaint letter dated 11.02.2011 which was not marked as exhibit has not produced any cogent and convincing evidence to prove that on 11.02.2011 it has lodged/given complaint to the defendants regarding non- delivery of consignment.
11 O.S.No.25719/2011
14. Plaintiff contends that in the consignment in question it has kept 3 tender forms to be submitted to M/s. Sanmina SCI India Pvt. Limited, M/s. Samsung India Pvt Limited, M/s. YCH. As I have already stated, a perusal of Ex.P.5 courier receipt would show that the consignment was sent to Mr.Azaruddin. In Ex.P.5 courier receipt there is a column to enter description of content and declared value. The said columns are blank. Therefore, the recitals of Ex.P.5 courier receipt will not help the plaintiff to prove what documents were kept in the consignment in question. Plaintiff has not produced the copies of tender forms alleged to have been kept in the consignment. Further the plaintiff has not produced any document to prove that the three companies stated in Para No.4 of the plaint are in existence and in the month of February 2011 they called tender for providing work of house keeping services. Plaintiff has neither pleaded nor led evidence regarding what rate it has noted in the tender forms to provide house keeping services. Further, the plaintiff has neither pleaded nor produced any 12 O.S.No.25719/2011 document to prove whose tender was accepted for providing house keeping services. Except the self- serving testimony of PW.1 there is no cogent and convincing evidence to prove that in the month of February 2011, the 3 companies stated above called tender for the house keeping services and plaintiff sent tender forms in the consignment dated 07.02.2011. If really as contended by plaintiff if it has kept tender forms in the said consignment, in view of it has not disclosed what rate was quoted therein for providing services and whose tender was accepted and what is the rate of accepted tender, it cannot be said that plaintiff had a chance of getting the said tender.
15. PW.1 has stated that in view of the oral assurance given by the concerned of the above 3 companies it has employed employees/workers for doing house keeping services from different parts of Karnataka, Tamilnadu and Andra Pradesh by giving advance money to them. Plaintiff has not stated the names of employees alleged to have been employed by it 13 O.S.No.25719/2011 for rendering house keeping service. There is no documentary evidence to support the contention of plaintiff that, it has paid money to the said employees. The say of the PW.1 that before the tender is accepted, he employed employees for doing house keeping services cannot be accepted. Thus, in the instant case, except the self-serving testimony of PW.1, there is no cogent and convincing evidence to prove that in the month of February 2011, 3 companies noted in the plaint called tender for house keeping services and virtually the plaintiff kept tender forms in the consignment dated 07.02.2011, having regard to the price quoted by it, there were fair chances of accepting its tender and in view of the consignment not reached, in time it has suffered loss. In view of the above, I hold that for the sake of arguments even if the contention of the plaintiff that due to the negligence of the defendants, consignment dated 07.02.2011 was not delivered to the consignee in time is accepted, the plaintiff failed to prove that it has 14 O.S.No.25719/2011 suffered loss due to the said negligence. In view of the above, I answer issue Nos.1 & 2 in the negative.
16. Issue Nos.3 & 4: In view of my reasons and findings on Issue nos.1 and 2, Issue Nos.3 and 4 are to be answered against plaintiff. Accordingly, I answer Issue Nos.3 and 4 in the negative.
17. Issue No.5: In view of my reasons and findings on Issues 1 to 4, I pass the following:
ORDER Plaintiff's suit is dismissed.
No order as to costs.
(Dictated to the Judgment writer, transcript thereof corrected and then pronounced by me in the open court on this the 28th day of June, 2019).
(Mohammed Mujeer Ulla C.G.) LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (Concurrent charge) ANNEXURE LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 C.Chandra raj 15 O.S.No.25719/2011 LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Authorization letter Ex.P.2 Copy of Legal notice
Exs.P.3 & 4 Postal acknowledgments of registered post sent to defendants Ex.P.5 Receipt of courier Ex.P.6 Postal acknowledgment Ex.P.7 UCP receipt Ex.P.8 Cover of refusal letter LIST OF WITNESS EXAMINED FOR THE DEFENDANT/S:
DW-1 Jagadish Chandra A.K. LIST OF DOCUMENTS MARKED FOR THE DEFENDANT/S:
NIL LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (Concurrent charge) 16 O.S.No.25719/2011 (Judgment ready and pronounced in open court vide separate Judgment) ORDER Plaintiff suit is dismissed. No order as to costs.
LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (Concurrent charge)