Karnataka High Court
Lufthansa German Airlines vs M/S United India Insurance Co Ltd on 16 March, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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RFA No. 841 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 841 OF 2010 (MON)
BETWEEN:
Digitally signed
by YASHODHA N LUFTHANSA GERMAN AIRLINES
Location: HIGH CARGO DIVISION
COURT OF BOBBA AVIATION GROUND
KARNATAKA HANDLING SERVICES PVT LTD.
VIMANAPURA, HAL
P.O. BOX NO.1784
BANGALORE-560 017
REPRESENTED BY ITS
CUSTOMER RELATIONS MANAGER
MS. SUMAN RAI ...APPELLANT
(BY SHRI. C. SADASHIVA ADVOCATE FOR
SHRI. G.S. BHAT, ADVOCATE)
AND:
1. M/S. UNITED INDIA INSURANCE CO. LTD
24, CLASSIC BUILDING
1ST FLOOR, RICHMOND ROAD
BANGALORE-560 025
2. M/S. MOTOR INDUSTRIES CO. LTD
HOSUR ROAD, AUDUGODI
BANGALORE-560 030
3. M/S. PROCARGO SPEDITIONS
GESMBH, FREUDENAUER
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RFA No. 841 of 2010
HAFENSTRASSE 8-10
1020 VIENNA / AUSTRIA ...RESPONDENTS
(BY SHRI. P.S. RANGANATHAN, ADVOCATE FOR R1 AND R2;
VIDE ORDER DATED 29.10.2010
NOTICE TO R3 IS DISPENSED WITH)
THIS RFA IS FILED U/O 41 RULE 1 R/W SEC. 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.01.2010 PASSED IN
O.S.NO.4971/2006 ON THE FILE OF THE XLIV ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR RECOVERY
OF MONEY.
THIS RFA, COMING ON FOR HEARING, THIS DAY,
P.S.DINESH KUMAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 96 of Code of Civil Procedure, 1908, by defendant No.1 is directed against the judgment and decree dated January 2, 2010 in O.S.No.4971/2006 passed by the XLIV Additional City Civil & Sessions Judge, Bengaluru.
2. Respondents No.1 & 2 have brought the instant suit for recovery of damages and the suit has been decreed.
3. For the sake of convenience, parties shall be referred as per their status before the Trial Court.
4. Heard Shri C.Sadashiva, learned Advocate for the appellant-defendant No.1 and Shri P.S. Ranganathan, learned advocates for the respondents-plaintiffs No.1 & 2.
-3- RFA No. 841 of 20105. Smt.Sarika Gandhi, Authorised Representative of appellant-company is present and she is identified by Shri Sadashiva, learned advocate. Shri K.G.Santhanam, Administrative Officer of respondent No.1-Insurance Company is present and he is identified by Shri P.S.Ranganathan, learned advocate.
6. Learned advocates on both sides jointly submit that during the pendency of this appeal, parties have amicably resolved the dispute. A compromise petition under Order XXIII Rule 3 read with Section 151 of CPC, 1908 duly signed by both the parties and their respective advocates has been filed. Parties admit that they have understood the terms of the compromise.
In terms of compromise, appellant has tendered a D.D. bearing No.357297 dated 13.03.2023 drawn on Deutsche Bank, New Delhi, for Rs.3,00,000/- and respondent No.1 acknowledges receipt of the same. They pray that this appeal may be disposed of in terms of memorandum of compromise.
7. The memorandum of compromise reads as follows:
"The Appellant and Respondents submit as follows:-
1. The Appellant herein is the carrier who was entrusted with the transportation of certain spare parts (hereinafter consignment) purchased by Respondent No.2. Respondent No.1 -4- RFA No. 841 of 2010 is an insurance company who had issued a Marine Cargo Open Policy in respect of the consignment imported by Respondent No.2. As the consignment was lost in transit during the course of its shipment from Vienna, Austria to Bengaluru, Karnataka, on 31.08.2004 Respondent No.2 was constrained to settle the claim of Respondent No.1 for an amount of Rs.3,11,444/-.
2. Thereafter, Respondent No.2 executed a letter of subrogation and Special Power of Attorney dated 22.08.2005 authorizing Respondent No.1 to initiate legal action against the concerned parties for recovery of the aforesaid amount.
Consequently, OS No.4971/2006 came to be filed by Respondent No.1 for itself and on behalf of Respondents No.2 against the Appellant and its agent viz. Respondent No.3 for recovery of a sum of Rs.3,11,444/- with future simple interest at 18% per annum.
3. It was the case of Respondent No.1 before the Ld. Trial Court that the Appellant had failed to transport the consignment with prudence, care and caution thereby resulting in it's loss and therefore liability needed to be fastened on them. In the written statement filed by the Appellant it was contended that under Rule 22(2)(a) of the Second Schedule to the Carriage by Act, 1972 the maximum liability of the Appellant was 250 francs per kilogram or US $ 20 per kilogram. That as the consignment weighed only 2.1 kg, the liability of the Appellant had to be restricted to 42 $.
4. That on 02.01.2010 the Court of the City Civil Judge at Bengaluru was pleased to decree OS No.4971/2006 for recovery of Rs.4,14,220/- together with simple interest at 6% p.a on Rs.3,11,444/- from the date of suit till realization. Hence this Appeal.
5. That at the instance of the Appellant, this Hon'ble Court by order dated 29.10.2010 was pleased to dispense with notice to Respondent No.3. That on 14.08.2013 the Ld. Single Judge of this Hon'ble Court was pleased to opine that the loss of consignment by the Appellant did not amount to wilful misconduct, but taking note of the decisions by a Ld. Single Judge of this Hon'ble Court in Air India v SV International, 1986 -5- RFA No. 841 of 2010 (1) Kar. LJ 34 expressing a contrary view, the captioned Appeal was referred to a larger Bench for consideration.
6. That the contesting parties viz. Appellant and Respondent No.1 without prejudice to their rights under the Carriage By Air Act, 1972 have arrived at an amicable settlement amongst themselves. By filing this compromise petition, the parties are jointly requesting this Hon'ble Court to record the same and pass appropriate order in terms of this compromise petition.
7. Respondent No.1 admits that the value of the consignment was not declared either for the purpose of carriage or for the purpose of customs. It is also admitted that no supplementary charges were paid in terms of Clause 4 and 5 of the Airway Bill dated 17.06.2004.
8. The Appellant admits that the consignment was lost in transit for operational and technical exigencies which were beyond their control. It is also admitted that all efforts to trace the consignment at the ports of destination as well as transshipment have gone in vain.
9. That the Appellant has paid a sum of Rs.3,00,000/- (Rupees Three Lakhs) to Respondent No.1 as full and final settlement towards the Respondents claim and also cost of the suit, in view of the fact that Respondent No.1 is agreeing for allowing the captioned Appeal by setting aside the judgment and decree dated 02.01.2010 passed by the Court of the City Civil Judge at Bengaluru in OS 4971/2006 and putting an end to the litigation.
10. Respondent No.1 herein hereby acknowledges the receipt of Rs.3,00,000/- (Rupees Three Lakhs) by way of DD bearing No."357297" dated 13.03.2023 drawn on Deutsche Bank, New Delhi in favour "United Insurance India Co Ltd." and further declare that they have no claim whatsoever in respect of loss of consignment which is the subject matter of the lis.
11. Respondent No.1 has unconditionally agreed and accepted the aforesaid amount as full and final settlement of all -6- RFA No. 841 of 2010 their claims and declare that they do not have any further claim over the loss of consignment and by withdrawing their pleadings, request this Hon'ble Court to set aside the judgment and decree dated 02.01.2010 passed by the Court of the City Civil Judge at Bengaluru in OS 4971/2006 by allowing the captioned Appeal.
12. The parties further undertake to execute all other document/s or letter/s or no objection/s etc. if necessary in order to give effect to the terms of the present compromise petition.
13. The parties have entered into this compromise petition out of their own free will and volition and there is no threat or coercion or undue influence and further the parties agreed that the terms of the compromise are fair and just.
WHEREFORE, the parties pray that this Hon'ble Court may be pleased to set-aside the judgment and decree dated 02.01.2010 passed by the Court of the City Civil Judge at Bengaluru in OS 4971/2006 and allow the captioned Appeal and pray for refund of the court fee to the Appellant herein in the interest of justice and equity."
8. In our opinion, compromise arrived at between the parties is lawful and hence accepted. Judgment and decree dated January 2, 2010 in O.S.No.4971/2006 passed by the XLIV Additional City Civil & Sessions Judge, Bangalore, shall stand modified in terms of compromise arrived at between the parties.
9. The appeal stands disposed of in terms of the compromise. Decree be drawn accordingly. Parties shall bear their own costs.
-7- RFA No. 841 of 201010. Registry shall refund the court fee in accordance with law.
No costs.
Sd/-
JUDGE Sd/-
JUDGE Yn List No.: 1 Sl No.: 58