1 srk IN THE HIGH COUT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2031 OF 2003 The National Insurance Company Ltd. & Anr. .. Plaintiffs vs M/s. Penta Freight Pvt. Ltd. .. Defendants Ms. Uma Kabra i/b Narichania & Narichania for the Plaintiffs. None for Defendants. CORAM: A.S.OKA,J DATE: 5th November, 2009. JUDGMENT: 1 The suit is shown under the caption of ‘undefended suits for exparte decree’. The plaintiffs have filed this money suit for recovery of a sum of Rs.2,89,936/- and a sum of Rs. 13,09,800/- more particularly shown in Exhibit ‘N’ and ‘O’ annexed to the plaint together with interest at the rate of 12% per annum on the principal amount. 2 In June, 2000, the second plaintiff intended to export consignment of 125 Kgs. of Coxacilin Sodium Oral as per the order dated 16th June, 2000, received by them from a company in Germany. The consignment was packed by the second plaintiffs in five Drums of 25 Kgs. each under Invoice dated 28th June, 2 2000. The said consignment was to be exported by them. The second plaintiffs engaged the services of the defendants as freight forwarding agents for clearing said consignment from customs and handing over the same to the Air Carriers for further dispatch to Germany. According to the case of the plaintiffs, the second plaintiffs delivered the said consignment on 1st July, 2000 to the defendants at their godown in Bombay under the delivery challan for keeping it in safe custody. It is alleged that the defendants were acting as Freight Forwarding Agents of the second plaintiffs and they accepted the said consignment as such Agents. 3 The second consignment which is the subject matter of the suit is the consignment which third plaintiffs intended to export in June, 2000. The said consignment was of 100 Kgs. of Roxythromycin BP under an order received from a company in Jordan. The said consignment was packed in four Fibre Board Drums of 25 Kgs. each under the invoice dated 19th June, 2000. The third plaintiffs engaged the services of the defendants as Freight Forwarding Agents for clearing the said consignment from the customs and for handing over the same to Air Carriers for delivering at Jordan. According to the case of the plaintiffs, through the Road Carriers the consignment was delivered to the defendants. It must be stated here that both the consignments were insured by the first plaintiffs company under export policies. 3 4 Both the consignments were kept in the custody of the defendants in their godown. The allegation is that between 1st July, 2000 and 3rd July, 2000 some persons broke open locks of the godown and had stolen consignments. Accordingly, a first information report was lodged by the representative of the defendants in Andheri police station on 3rd July, 2000. Thereafter, the plaintiffs engaged surveyors for assessing the loss of the said two consignments. Reliance has been placed on a survey report submitted by the surveyors. On the basis of survey report, the second plaintiffs lodged a claim in the sum of Rs. 2,13,268/- with the defendants. Similarly, a claim was lodged by the third plaintiffs with the defendants as regards the second consignment for an amount of Rs.9,69,500/-. Reliance has been placed on the correspondence made by the plaintiffs with the defendants. It appears that the defendants had insured the customer’s cargo with the New India Insurance Co. Ltd. and that defendants had taken steps subsequent to burglary by informing the said Insurance Company after lodging FIR. The plaintiff alleged that, the defendants did not show any interest in pursuing their claim under the policy issued by the New India Insurance Company Ltd. Ultimately, the defendants closed their file with the said Insurance Company. It is alleged that in view of the claim made by the second plaintiffs with the first plaintiffs as per the policy, the first plaintiffs settled the claim of second plaintiffs at sum of Rs. 2,13,268/-. Similarly, first 4 plaintiffs settled the claim of the third plaintiffs at a sum of Rs. 9,69,500/-. After the settlement of claims, the first and second plaintiffs as well as first and third plaintiffs issued separate advocate’s letters calling upon the defendants to pay the aforesaid amounts together with interest at the rate of 18% per annum. As the demand was not complied with, the present suit for recovery of amount has been filed. 5 The contention of the plaintiffs is that the fact of delivery of consignment with the defendants and full loss of the said consignments from the godown of the defendants has been admitted by the defendants in correspondence exchanged between the parties. It is contended that the defendants ought to have taken proper care for safeguarding the goods. It is alleged that the defendants failed to perform their duty of safeguarding their godown as a man of ordinary prudence would have done in similar circumstances. It is submitted that the defendants being the bailees of the consignment ought to have taken appropriate care. 6 Thus, the prayer is for a decree in favour of the first and second plaintiffs in the sum of Rs. 2,89,936/- with further interest for the principal amount at the rate of 12% per annum from the date of the institution of the suit till the date of the decree or realization. A decree is also prayed in favour of the first and third 5 plaintiffs in the sum of Rs. 13,09,800/- together with further interest at the rate of 12% per annum on the principal amount. 7 The plaintiffs have filed affidavit in lieu of examination-in-chief of Mr. V.K. Singhal, Senior Divisional Manager of the first plaintiffs along with affidavit of documents. Several documents have been placed on record. The plaintiffs have placed on record office copies of the policies of the Insurance issued in respect of the both the consignments. Copies of the Invoices issued by second and third plaintiffs in respect of respective of consignments have been placed on record. A certified copy of F.I.R. dated 3rd July, 2000 has been also placed on record. The survey reports quantifying the amount of loss sustained on account of the theft of the consignments are also placed on record. The letters issued by the defendants show that there is no dispute about the delivery of possession of the consignments to the defendants. The letter dated 19th July, 2009 sent by the defendants records an admission of the defendants that there was a burglary in respect of both the consignments. The claims lodged by the second and third plaintiffs are also produced on record. The letter dated 31st August, 2001 sent by the defendants to the first plaintiff records that they have instructed the New India Insurance Company Limited to close the file as a claim was lodged with the first plaintiffs. Office copies of the demand notices have been also placed on record. 6 8 The allegations made in the plaint as regards the failure on the part of the defendants to take care have not been controverted. There is no dispute regarding delivery of the consignments to the defendants and the fact that the consignments were stolen from the godown of the defendants and that the same were in custody of the defendants. The first plaintiffs have proved that they have settled the claims of the second and third plaintiffs by paying necessary amounts. Therefore, the plaintiffs have established their claim as set out in the plaint. The plaintiffs have claimed further interest at the rate of 12% per annum from the date of the suit. Obviously, there is no agreement between the parties as regards the interest. Considering the facts and circumstances of the cases, further interest will have to fixed at the rate of 6% per annum. 9 Hence, I pass following order: i) The suit stands decreed in favour of the first and second plaintiffs as well as first and third plaintiffs as prayed in prayer clauses (a) and (b) with modification that further interest shall be paid on the principal amounts at the rate of 6% per annum from the date of institution of the suit till realization. ii) The plaintiffs will be entitled to refund of court fees, if any, as per the rules. Judge.