Delhi District Court
Lg Polymers India Pvt. Ltd vs Assam Bengal Roadways Ltd on 22 April, 2010
IN THE COURT OF SH RAKESH KUMAR ADJ20 (CENTRAL) DELHI
Suit No.800/2008
Unique ID No.02401C0068782008
1. LG POLYMERS INDIA PVT. LTD.,
A Limited liability company incorporated in India,
Under the Companies Act, 1956 having its
Registered Office at RR Venkatapuram,
Vissakhapatnam - 530029.
2. M/s ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
Through its Manager (Legal)
Birla Tower, 5 Floor,
th
25, Barakhamba Road, New Delhi. .....Plaintiffs.
VERSUS
ASSAM Bengal Roadways Ltd.
Through Managing Director/Director,
57F, Plot No.9, Gadodia Road,
Anand Parbat, New Delhi - 110005. .....Defendants.
Date of institution of the suit : 23.01.2008
Date on which order was reserved : 22.04.2010
Date of decision : 22.04.2010
SUIT FOR RECOVERY.
J U D G M E N T
1. The present suit for recovery of money has been filed by the aforesaid plaintiffs against the aforementioned defendants interalia making a prayer for passing a decree for recovery of Rs.3,53,564/ (Rs. Three Lakh Fifty Three LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 1 of pages 11 Thousand Five Hundred Sixty Four Only) alongwith interest @ 12% per annum on the principal amount of Rs.2,74,081/ from the date of filing of suit till realization of the decreetal amount in favour of plaintiff and against the defendants jointly and severally. Cost of the suit is also demanded.
2. As per plaint, both the plaintiffs are a limited liability companies incorporated in India under the Companies Act, 1956. The plaintiff no.2 carries on General Insurance business and during the course of such business insure the goods/property of the insured against various risks such as transit, fire, etc. Sh. Sanjay Thakur is the Manager and Power of Attorney holder and fully competent to sign, verify, appear, contest and depose before the Court. The defendant is a company having its office at New Delhi and they have been indiscriminately accepting for hire and/or reward payable to themselves the goods offered by the general public for transportation by road from one place to another in India in Motor Trucks, Lorries, Trailers owned and/or chartered or arranged by them and/or under their charge and control. At all material times, the defendants have been carrying on business as Common Carriers of goods on road for reward and/or hire payable to themselves. In fact, the defendants claimed and advertised themselves as Common Carriers specialized in transportation of Over Dimensional Cases (ODC). At all material times, the defendants were the contracting common carriers in respect of the suit consignment belonging to plaintiff no.1 which was entrusted to them for carriage by road from Visakhapatnam to Noida. At all material times, the defendants were the owners and/or chatterers of a Trailer. Truck bearing no. LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 2 of pages 11 AP35T7833 in which, polystyrene chip filled in 662 bags were carried from Visakhapatnam to Noida. The plaintiffs dispatched consignment of 16.5 MT of polystyrene chip (hereinafter called consignment) to M/s LG Polymers India Pvt. Ltd. (hereinafter called the consignee) vide invoice/challan no.10107811 dated 23.03.2005 for 9 MT of Polystyrene (uncoloured) LGG1043 for Rs.7,43,284.80ps. and invoice/challan no.10107812 dated 21.03.2005 for 7.5 MT of Polystyrene (uncoloured) LGG1043 for Rs.6,19,404/ vide G.R. No.122208 and 122209 respectively dated 21.03.2005 of Assam Bengal Roadways Ltd. The plaintiff no.1 interalia insured the said consignment with the plaintiff no.2 under their Marine Import Insurance (Open) Policy No.2001/ 000/4191 valid from 23.08.2004 to 22.08.2005 covering all risks as per the Institute Cargo Clauses contained therein. It was also averred that the said container was loaded by the defendants on a Truck bearing Registration No.AP35T7833 on 21.03.2005 at Visakhapatnam and thereafter the said Truck commenced its journey. While the plaintiff no.1 was awaiting the arrival of the said consignment, they were informed by the defendants that the said truck had met with an accident on 01.04.2005 near UP-Delhi Boarder. The affected consignment loaded in a relief lorry at the spot of the accident. It was received by the consignee on 01.04.2005 at Noida in partially damage condition. Plaintiff no.2 as insurer of the goods and requested them to immediately depute their Surveyor at the site of the accident and to assess the loss pursuant to the said information and request made, the plaintiff no.2 appointed M/s Cunningham Lindsey International Pvt. Ltd. Bombay as the LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 3 of pages 11 Surveyors with a request to rush to the accident site and also to conduct the survey and assess the loss if any to the contents of the said container. The consignment was surveyed by the surveyor on 01/02.04.2005 at the consignee's godown at Noida and on surveying, it was found that out of the total 660 bags weighing 16.5 MT of polystyrene chip, 408 bags weighing 10.2 MT were found contaminated with diesel and 50 bags were found torn out of which 0.7 MT of material was found contaminated with dust and 0.35 MT material was found short. It is also averred that plaintiff no.1, thereafter, lodged a claim with the defendants vide their letter dated 03.05.2005 called upon the defendants to compensate the plaintiff no.1 in the said sum of the loss caused by them to the said equipments. Vide the said letter, the defendants were called upon to issue a damage certificate immediately. The defendant acknowledged the said letter dated 03.05.2005 vide their letter dated 18.05.2005 and admitted the damage and the loss due to the accident and requested for a copy of the survey report, falsely refused to admit the liability alleging that the loss to the consignment has happened due to unforeseen circumstances and reasons beyond their control and advised the plaintiff no.1 to lodge their claim for the loss on the underwriters. It is also averred that after the damage material was brought to the consignee premises at Noida, the loss was assessed by the Surveyor and after assessing the loss M/s Cunningham Lindsey recommended Rs.2,74,081/ to be paid to the plaintiff no.1. In view of the aforesaid loss suffered by the plaintiff no.1 and as they were entitled to be indemnified by plaintiff no.2 under LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 4 of pages 11 the terms and conditions of aforesaid Marine Inland Transit Insurance (Open) Policy. The plaintiff no.1 lodged their claim with the plaintiff no.2 which processed the said claim of plaintiff no.1 and being admissible for payment under the terms and conditions of the said Marine Inland Transit Insurance (Open) Policy indemnified the plaintiff no.1 to the extent of the said loss sustained to the consignment due to damage by making a payment of Rs.2,74,081/ in respect of which plaintiff no.1 executed in favour of plaintiff no.2 a discharge voucher dated 27.05.2005 and also a letter of subrogation dated 15.07.2005 thereby subrogating their rights and remedies in respect of the said loss in favour of plaintiff no.2. Plaintiff no.1 also sent the claim notice to the defendants vide his letter dated 03.05.2008 but no response was received from the defendants. The court has territorial and pecuniary jurisdiction to try and entertain the present suit. The suit has been properly valued for the purpose of court fee and jurisdiction and appropriate court fee has been affixed. The suit has been filed within the period of limitation.
3. Summons of the suit were issued and served upon the defendant and then on 29.02.2008 defendant filed its Written Statement through its counsel, in which certain preliminary objections has been taken like that suit of the plaintiff has not been signed, verified, filed or instituted by duly authorized person; no cause of action has been arose in favour of plaintiffs as the goods were transported on owners risk; suit is not maintainable because no notice as required by the Carriers Act has been served on the defendant; suit against defendant is not maintainable as there is no privity of contract with the plaintiff LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 5 of pages 11 no.2; and plaintiff no.2 can not extend or seek to recover any amount towards discharge of its obligation under alleged insurance cover issued on acceptance of Premium.
On merits, it is denied that the defendant indiscriminately accepts goods for transportation as alleged. The defendant undertakes transportation of goods with proper arrangement. It is stated that the goods were required to be packed properly by the consignor which they failed to do. The defendant is not aware if the bags contained polystyrenes chip as alleged. It is denied that the consignments consisted of 9 MT & 7.5 MT of Polystyrenes chip LCG - 1043 or that the goods in one consignment were valued at Rs.7,43,284.80ps. or were covered by Invoice/Challan no.10107812 dated 21.03.2005. It is also denied that the goods in other consignment were valued at Rs.6,19,400/ or were covered by invoice no.10107812 dated 21.03.2005. It is submitted that no transport on sea or marine was involved and as such also marine insurance has no relevance. The alleged open insurance policy, existence of which is denied, does not cover the transaction in suit and that the alleged policy should have been produced with the suit and the plaintiffs can not heard to wait and crave leave. No terms of the alleged policy can be taken benefit of by the plaintiffs. Further, the defendant has no knowledge of any survey. It is denied that any discreet survey was conducted by authorized person. Survey, if any, without reference to the defendant is not binding on the defendants. It is admitted that the goods were delivered to the plaintiff no.1. It is denied that the goods were insured with the plaintiff no.2. It is also denied LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 6 of pages 11 that goods were in any way contaminated with diesel or dust. The bags used were of poor quality and apparently were not having the strength required for holding the weight or protecting the goods for which the defendant can not be blamed. As a common knowledge dust on the road can not be escaped and the dust, if any, from plastic can be removed by simple work. There was no shortage when the goods were delivered. It is denied that any claim was lodged or that damage and or loss was caused by or was admitted by defendant as alleged. It is also denied that any letter dated 18.05.2005 admitting loss or damage was issued. Even otherwise, the said letter is without prejudice and without admitting any liability on the part of the defendants. No surveyor was appointed nor any payment has been made. The alleged surveyor report is fabricated to help the plaintiffs. No notice was given to the defendant about any request of appointment of survey or alleged survey. It is denied that any loss was suffered by the plaintiff no.1 and they were entitled to be indemnified by the plaintiff under any policy. It is further denied that the plaintiff no.1 is at all entitled to claim the some from plaintiff no.2 or that plaintiff no.2 processed the claim of plaintiff no.1 and paid Rs.2,74,081/. It is also denied that plaintiff no.1 executed the voucher dated 27.06.2005 or Letter of Subrogation, as alleged or that any loss was suffered by the plaintiff no.1 and they were entitled to be indemnified by the plaintiff under any policy. It is also denied that the plaintiff no.1 executed the voucher dated 27.06.2005 or Letter of Subrogation as alleged. The plaintiff no.1 & 2 can not extend their alleged mutual agreements, documents and LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 7 of pages 11 commitments to defendant and bind them. The goods were transported on owner's risk and responsibility. It is denied that any notice of claim or claim bill was sent tendered or served on the defendant on 03.05.2005 or any other date or that the defendant acknowledged the letter dated 03.05.2005 vide any letter. No amount was payable by the defendant and the defendant is not liable to make any payment under the Carriers Act.
4. The plaintiff filed replication to the Written Statement of defendant, whereby objections and stand taken by the defendants have been vehemently denied and the contents of the plaint were reaffirmed and reasserted.
5. From the pleadings of the parties following issues were farmed vide order dated 12.05.2008:
(i).Whether the suit has been signed, verified and instituted by a duly authorized person? OPP.
(ii).Whether plaintiff has duly served notice U/s 10 of Carriers Act? OPP.
(iii).Whether the suit is not maintainable for want of privity of contract between plaintiff no.2 and defendant? OPD.
(iv). Whether the plaintiff are entitled to recover the suit amount? OPP.
(v).Whether the plaintiffs are entitled to interest, if yes, at what rate and from when? OPP.
(vi).Relief.
6. After framing of issues the case was fixed for leading of plaintiffs' evidence and accordingly plaintiffs were directed to bring their evidence by LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 8 of pages 11 way of affidavit. However, despite of giving sufficient opportunities, plaintiffs did not prefer to lead their evidence. Today also, no witness was present on behalf of plaintiff nor any affidavit in evidence has been filed on record. In these circumstances, the evidence of the plaintiffs was closed. The defendant evidence was also closed on the submissions of Ld. counsel for the defendant, who was not inclined to bring evidence in defence in the absence of plaintiff evidence.
7. I have heard the submissions of both the sides. I have also perused the entire material placed before me.
8. In the instant suit, the plaintiffs have sought a money decree for an amount of Rs.3,53,564/ (Rs. Three Lakh Fifty Three Thousand Five Hundred Sixty Four Only) alongwith interest @ 12% per annum on the principal amount of Rs.2,74,081/ from the date of filing of suit till realization of the decreetal amount in favour of plaintiffs and against the defendants jointly and severally, but the plaintiffs have brought no evidence to substantiate their claim despite of giving sufficient opportunities. Hence the claims of the plaintiff raised in the suit remained unproved and as such they are liable for dismissal and accordingly the suit of the plaintiffs is dismissed. No order as to cost.
9. Decree Sheet be prepared accordingly.
10. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open court (RAKESH KUMAR)
today on 22.04.2010) ADDL. DISTRICT JUDGE20 (C)
LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 9 of pages 11
Suit No.800/2008
LG POLYMERS INDIA PVT. LTD. & Anr. Vs. ASSAM Bengal Roadways Ltd.
22.04.2010
Present: None for plaintiff.
Ld. counsel for defendant.
No PW is present.
Put up at 11.30 a.m.
(RAKESH KUMAR)
ADJ20 (C)/DELHI/22.04.2010
22.04.2010 (at 11.30 a.m.)
Present: Proxy counsel for Ld. counsel for plaintiffs.
Ld. counsel for defendant.
Today the case was fixed for PE but no PW is present. Perusal of the record reveals that issues in this case were framed way back on 12.05.2008 and since then evidence on behalf of plaintiffs have not been been led nor any affidavit in evidence has been filed. It is 2010 and around two years have been elapsed. It seems that plaintiffs are not willing to lead any evidence in their favour. As such, opportunity of plaintiffs to lead their evidence stands closed.
It is submitted by Ld. counsel for the defendant that since no evidence has been led on behalf of plaintiffs, so no question arises for bringing any defence evidence. Accordingly, as prayed, the defendant evidence is also closed.
Final arguments heard.
Put up at 4.00 p.m for orders.
(RAKESH KUMAR)
ADJ20 (C)/DELHI/22.04.2010
LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 10 of pages 11
22.04.2010 (at 4.00 p.m)
Present: As before.
Vide a separate judgment, suit of the plaintiff is dismissed. Decree Sheet be prepared.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ20 (C)/DELHI/22.04.2010 LG Polymers India Pvt. Ltd. & Anr. Vs. ASSAM Bengal Roadways Ltd. (Suit No.800/08) Page No. 11 of pages 11