Bangalore District Court
M/S. Motor Industries vs M/S. Batco Trans India on 1 April, 2016
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 1st day of April, 2016.
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.B.(Spl.),
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.1061/2011
PLAINTIFFS : 1. M/s. Motor Industries
Company Limited, Hosur
Road, Adugodi, Bengaluru,
- represented by Power
Agent/Subrogee M/s.
United India Insurance
Company Limited, 24,
Classic Building, Richmond
Road, Bengaluru,
represented by their
Divisional Manager.
2. M/s.United India Insurance
Company Limited,Divisional
Office III, No.24, Classic
Building, I Floor, Richmond
Road, Bengaluru - 560 025,
represented by their
Divisional Manager.
(By Sri P.S. Ranganathan, Advocate)
-VERSUS-
DEFENDANT : M/s. Batco Trans India
Private Limited, owning
M/s. Batco Cargo Movers,
Krishi Udyog Bhavan, No.2,
Glala No.1, Gultekadi,
Cont'd..
-2- O.S. No.1061/2011
Market Yard, Pune - 37,
represented by its Manager.
(Defendant is placed ex-parte)
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Date of Institution of the Suit : 05-02-2011
Nature of the Suit (Suit on : Suit for recovery of money.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 29-02-2016
of recording of the evidence
Date on which the Judgment : 01-04-2016
was pronounced
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Year/s Month/s Day/s
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Total duration : 5 years, 1 month, 26 days
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JUDGMENT
This is a suit filed by the plaintiffs against defendant for the relief of damages in a sum of Rs.37,089-00 with interest at the rate of 12 per cent per annum from the date of suit till its realisation.
2. The brief facts of the plaint are as under:-
Plaintiffs have contended that they are the Public Limited Companies and the defendant is a Common Carrier for reward - a Private Limited Company incorporated under the Companies Act. It is submitted that plaintiffs during the course of their business, discharged their consignment - 20 pieces of auto electrical parts, viz., Bosch Inverta of Model Cont'd..
-3- O.S. No.1061/2011 No.F002.H50.030-8F8 from Pune to their consignee at Solapur vide Invoice dated 31-01-2008. It is submitted that the said consignment was securely packed and entrusted with the defendant Carrier for safe carriage and delivery to their Consignee at Solapur. The defendant has undertaken to carry the said cargo and deliver the same to the destination at Solaur in the same good order and condition. It is submitted that the defendant, contrary to their undertaking, failed to deliver the consignment as entrusted to them and the same was delivered to the consignee in a damaged condition. Upon intimation from the first plaintiff, the second plaintiff appointed one Srikanth J. Madur to conduct survey and accordingly, the said Surveyor has visited the spot, conducted survey and issued Survey Report assessing the loss at Rs.32,470-00. It is submitted that the defendant, having admitted the fact of damaged delivery by issuing witness certificate is liable to pay loss amount as Common Carrier for reward. First plaintiff lodged notice of loss calling upon the defendant to compensate the loss. After receiving the notice, defendant has admitted loss due to damage. It is submitted that the first plaintiff lodged their claim with the plaintiff No.2 under the policy of insurance and the second plaintiff indemnified the first plaintiff's claim under the insurance policy and upon such indemnification, first plaintiff has executed a letter of subrogation, special power of attorney. On the basis of Cont'd..
-4- O.S. No.1061/2011 the said documents, second plaintiff has filed this suit. With this submission, plaintiff prayed to decree the suit.
3. On the other hand, in spite of service of summons, the defendant has not appeared before the Court. Hence, the defendant is placed ex-parte.
4. When the case was posted for ex-parte evidence, Administrative Officer of the plaintiff No.2 Company herself is examined as P.W.1 and got marked documents as per Exs.P.1 to P.15 and closed their side.
5. I have heard arguments on behalf of the plaintiffs.
6. The following points arise for my consideration:-
(1) Whether the plaintiffs are entitled for the relief sought for?
(2) What order?
7. My findings on the above points are as follows:-
POINT No.1 - Affirmative;
POINT No.2 - As per final order, for the following -
REASONS
8. In order to substantiate the plaint averments, Administrative Officer of the second plaintiff Company Cont'd..
-5- O.S. No.1061/2011 herself is examined as P.W.1. In her evidence, she has reiterated the plaint averments. In her evidence, she has specifically deposed that the first plaintiff being the public limited company during the course of their despatched their consignment of - 20 pieces of auto electrical parts, viz., Bosch Inverta of Model No.F002.H50.030-8F8 from Pune to their consignee at Solapur. P.W.1 further deposed that the defendant has undertaken to carry and deliver the said consignment in the same good order and condition at destination at Solapur. Further, she has deposed that the defendant, contrary to their undertaking, failed to deliver the said various consignments as entrusted with them and the said consignment was delivered in a damaged condition. P.W.1 further deposed that upon intimation from the first plaintiff, second plaintiff appointed Surveyor to assess the loss and accordingly, he has submitted report. Further, she has deposed that the defendant having admitted the damaged delivery by issuing their witness certificate is liable to pay the loss amount as Common Carrier for reward. Further, she has deposed that thereafter, the first plaintiff caused notice of loss calling upon the defendant to compensate the loss to the damage and after receiving the notice, defendant has admitted the fact of damaged deliver. P.W.1 further deposed that the first plaintiff lodged their claim to the second plaintiff under the policy of insurance and the second plaintiff indemnified the first defendant's claim and upon such indemnification, first plaintiff has Cont'd..
-6- O.S. No.1061/2011 executed letter of subrogation and special power of attorney and by virtue of the said documents, plaintiff No.2 is entitled to file this suit.
9. In support of the above said contention, P.W.1 has produced in all fifteen documents. Ex.P.1 is the invoice; Ex.P.2 is the consignment note; Ex.P.3 is witness certificate; Ex.P.4 is the notice of loss; Ex.P.5 is the certificate of report; Ex.P.6 is the technical report; Ex.P.7 is claim bill; Ex.P.8 is the settlement intimation voucher; Ex.P.9 is the letter o subrogation. Ex.P.10 is the copy of the notice issued through recovery agent to the defendant; Ex.P.11 is the acknowledgement; Exs.P.12, 13, 14 and 15 are the letter correspondence taken place between the plaintiffs and the defendant. In my considered view, the evidence of P.W.1 and the contents of Exs.P.1 to P.11 have remained unchallenged. Since the defendant is placed ex-parte, when the evidence of P.W.1 and contents of the documents relied on by P.W.1 remained unchallenged and when the claim of the plaintiff is in accordance with law, without more discussion, I am of the opinion that the plaintiff No.2 Company is entitled for the relief sought for.
10. At this juncture I would like to rely upon the ruling of Hon'ble High Court reported in ILR 1998 KAR 2655 (Shirajasab Husensab Exambi -versus- Ashok Panditappa Kaddimani) - wherein, it is held thus -
Cont'd..
-7- O.S. No.1061/2011 "Order VI Rule 1(a), Order VII Rule 11, Order VIII Rule 10 and Order XVII Rule 3 - Is it permissible for the Court to go in to the merits and other factual allegations when the Defendant does not appear in spite of the service of the suit summons? HELD - Court shall have to pass a decree as prayed for, unless the relief itself is, prima facie barred by limitation."
11. In my considered view, the principles laid down in the aforesaid decision is exactly applicable to the case on hand. In view of the above said settled position of law and on the basis of the evidence of P.W.1 and on the basis of the records produced on behalf of the plaintiff, this Court is of the opinion that the plaintiff No.2 is entitled for the relief sought for. Accordingly, my answer to Point No.1 is in the 'affirmative'.
12. POINT No.2 : In the present case, the plaintiffs have sought for recovery of a sum of Rs.37,089-00 with interest at the rate of 12 per cent per annum from the date of the suit till realization as the transaction being commercial transaction. Admittedly, the transaction took place between the plaintiffs and the defendant is a commercial transaction. On the other hand, the defendant has not at all established to hold that the plaintiffs are not entitled for the interest at the rate of 12 per cent per annum. In view of the above said Cont'd..
-8- O.S. No.1061/2011 discussion on Point No.1, I proceed to pass the following:-
ORDER Suit filed by the plaintiffs against the defendant, is hereby decreed with cost.
Plaintiff No.2 is entitled to recover from the defendant a sum of Rs.37,089-00 being the value of the consignment with interest thereon at the rate of 12 per cent per annum from the date of suit till its realization towards damages.
Defendant is liable to pay to the plaintiff No.2 a sum of Rs.37,089-00 being the value of the consignment with interest thereon at the rate of 12 per cent per annum from the date of suit till its realization towards damages within two months from today.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 1st day of April, 2016.) (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
-9- O.S. No.1061/2011
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : Manisha Tripathy 29-02-2016
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : Invoice. Ex.P.2 : Consignment note. Ex.P.3 : Witness certifcate. Ex.P.4 : Notice of loss. Ex.P.5 : Survey report. Ex.P.6 : Technical report. Ex.P.7 : claim bill. Ex.P.8 : Settlement intimation voucher. Ex.P.9 : Letter of subrogation. Ex.P.10 : Recovery intimation voucher. Ex.P.11 : Acknowledgement. Ex.P.12 : Reply letter. Exs.P.13 : Reminder letters. to P.15
3. WITNESS/ES EXAMINED FOR THE DEFENDANT:
Nil
4.DOCUMENT/S MARKED ON BEHALF OF DEFENDANT:
Nil (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..