1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.3368 OF 1997 BASF India Ltd. And another ..Plaintiffs. Vs. Hindusthan Roadways ..Defendant. .... Ms S.S. Diwedi i/b P.N. Sadarangani for the Plaintiff. None for the Defendant. .... CORAM : DR. D.Y. CHANDRACHUD, J. 10th August, 2009. P.C. : 1. The suit has been instituted for the recovery of an amount of Rs. 6,35,581/- together with interest. The First Plaintiffs entrusted a consignment for carriage and safe delivery to the Defendant on 12th July, 1994. The consignment consisted of 180 drums of Bavistin 50% WP 25 kg. The case of the Plaintiffs is that the consignment was delivered in damaged condition at the destination and that the Defendant confirmed this by a letter dated 15th September, 1994. An independent survey was conducted and the report of the surveyors dated 26th July, 1994 confirmed 2 the damage. The First Plaintiff lodged a claim with the Defendant on 3rd August, 1994. The consignment was insured by the First Plaintiff with the Second Plaintiff. The claim of the First Plaintiff was settled by the Second Plaintiff and accordingly the First Plaintiff issued a letter of subrogation dated 15th December, 1994. The suit has been instituted for the recovery of the amount of loss or damage suffered by the First Plaintiff. 2. The Defendant has been served with the writ of summons but has failed to enter appearance. In the circumstances, the averments contained in the Plaint have not been challenged. The Plaintiffs have relied upon an affidavit in lieu of an examination in chief of an Assistant Manager of the Second Plaintiff and a compilation of the original documents. For the reasons set out in paragraph 5 of the affidavit in lieu of examination in chief, permission is granted to lead secondary evidence. The Plaintiffs have duly established the claim on the basis of the evidence on the record. The entrustment of the consignment to the Defendant and the damage which was sustained during the period when the 3 consignment was in the custody of the Defendant have been duly established. 3. In the circumstances, the suit shall stand decreed in terms of prayer clauses (a) and (b) with the modification that the Plaintiffs will be entitled to interest at the rate of 9% p.a. on the principal sum from the date of the suit until payment or realization. *****