rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1470 OF 1992 SUIT NO. 1470 OF 1992 SUIT NO. 1470 OF 1992 1. M/s.GTC Industries Limited ] a company incorporated in ] Indian Companies Act and ] having their Regd.Office at] Tobacco House, Vile Parle, ] Bombay - 400 056. ] ] 2. M/s.United India Insurance ] Co.Limited, a Limited ] Company incorporated in ] India under the India ] Companies Act and having ] their Regd.office at 24, ] Whites Road, Madra - 400 014] and Bombay Divisional Office] No.16 at Jehangir Building, ] 1st floor, 133, Mahatma ] Gandhi Road, Post Box No.146] Bombay - 400 023 doing the ] Business of General Insurance] .. PLAINTIFFS .. PLAINTIFFS .. PLAINTIFFS Versus M/s.Coastal Roadways Limited, ] Exercising a public employment ] as common carriers and/or public] carriers for the transport of ] goods by road service for hire ] & reward having their office at ] 211-Doshi Chambers, Nandlal Jani] Road, Bombay - 400 009. ] .. DEFENDANTS .. DEFENDANTS .. DEFENDANTS Ms.S.S.Dwivedi i/b.P.N.Sadarangani for the Plaintiffs. Ms.Leena Temkar i/b.Ms.K.G.Parmar for Defendants. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 17TH DECEMBER, 2008 DATED : 17TH DECEMBER, 2008 DATED : 17TH DECEMBER, 2008 ( 2 ) JUDGMENT :- JUDGMENT :- JUDGMENT :- . The Plaintiffs have instituted the suit for recovery of Rs.1,33,576/-. The Plaintiffs have sought interest @ 18 % p.a. from the date of filing of the suit till Judgment and thereafter till the realisation on Rs.1,33,576/- and for costs. 2. The Plaintiffs case in brief is as under : . The Plaintiffs have sold the goods in the nature of Cigarettes to M/s.Sharp Commercial Limited at Guwahati. (hereinafter the Cigarettes is referred as "the suit goods"). The suit goods were to be sent by road through the Defendants. Three invoices were issued by the Plaintiffs i.e. vendors of the suit goods which are at Exh.P1 collectively. It is the case of the Plaintiffs that the goods were to be made over to the Defendants on 30th May 1989 and the suit goods reached the place of delivery in the damaged condition. According to the Plaintiffs, the Defendants issued three damage certificates which are at Exh.P2 collectively and it is mentioned in the said ( 3 ) certificates taken together that in all 32 cartons were delivered in the damaged condition. According to the Plaintiffs they suffered the damage and that is how the suit for recovery of the aforesaid amount is filed. 3. The Plaintiffs had engaged a surveyor by name M.C.Raychoudhry to conduct the survey, and the said surveyor by the survey report dated 18th September, 1989 estimated the losses. The said surveyor’s report could not be proved by the Plaintiffs and hence, it is marked as "X" for identification. The Plaintiffs have admitted that the notice came to be issued by the purchaser of the suit goods namely, M/s.Sharp Commercial Pvt.Ltd. being notice dated 16th October, 1989 at Exh.P3. The said notice is addressed to the Defendants and the Defendants were called upon to settle the claim of said M/s.Sharp Commercial Pvt.Ltd. on account of the 32 cartoons being delivered in the damaged condition. According to the Plaintiffs Defendants by letter dated 23rd November, 1989 at Exh.P4 replied to the said letter and disputed the claim of M/s.Sharp Commercial Pvt.Ltd. and denied ( 4 ) their liability to pay the compensation. 4. According to Plaintiffs, the goods were insured with M/s.United India Insurance Company Limited i.e. Plaintiff No.2 and that Plaintiff No.1 being the owner of the goods lodged the claim with Plaintiff No.2 and Plaintiff No.1 received compensation to the tune of Rs.1,33,576/-. Plaintiff No.1 claim to have executed documents of subrogation in favour of Plaintiff No.2, the Insurance Company, and that is how the present suit came to be filed by Plaintiff No.1 as the owner of the goods and Plaintiff No.2 as the Insurance Company as a subrogee. 5. Defendants have filed their written statement and have objected to the suit on following grounds : 6. According to Defendants the plaint was not validly executed in as much as provisions of Order 29 Rule 1 of C.P.C. have not been complied with. It is also contended that none of the Plaintiffs have issued notice under section 10 of the Carriers Act, 1965 and as such institution of the suit by the Plaintiffs is ( 5 ) improper and the suit is not maintainable. According to the Defendants, the Plaintiffs had neglected in the matter of taking care of the cartons and that is how the Plaintiffs themselves are responsible for the damage, if at all it is the case of the Plaintiffs that the goods were delivered in a damaged condition. 7. It is also the case of the Defendants that the goods were undertaken for transport at owners risk and that the Plaintiffs should have relieved the consignments as early as possible. The Defendants have denied that the Plaintiffs suffered a loss to the tune of Rs.1,33,576/-. Defendants have also denied the case of the Plaintiffs as regards subrogation. Defendants have denied the averments in the plaint and have disputed the claim of the Plaintiffs. 8. On the basis of the aforesaid pleadings, issues came to be framed on 29th August,2008. They are as follows and my answer to each of the issues are mentioned against respective issues. i. Do the Plaintiffs prove that the ( 6 ) Defendants handled the goods negligently, thereby causing loss to the Plaintiffs to the tune of Rs.1,33,576/- ? In the negative. ii. Do the Plaintiffs prove that the Plaintiff No.2 was assigned to and subrogated thereby securing rights for the purpose of filing present suit for damage ? In the negative. iii.Do the Defendants prove that this Court has no jurisdiction to try and entertain the present suit ? Does not survive as is not pressed. iv. Do the Defendants prove that the suit is bad for non issuance of notice under section 10 of the Carriers Act, 1865 ? In the affirmative. v. Are the Plaintiffs entitled for the suit claim ? In the negative. ( 7 ) vi. What order ? As per final order. 9. At trial Mr.Rujuta S. Savant, Assistant Manager of Plaintiff No.2 gave evidence as P.W.1. No other whiteness has been examined on behalf of the Plaintiffs. Defendants have not examined any witnesses. :: REASONS :: :: REASONS :: :: REASONS :: ISSUE NOS 1 TO 6 :- ISSUE NOS 1 TO 6 :- ISSUE NOS 1 TO 6 :- 10. Considering the evidence placed before the Court these issues can be discussed together. 11. I have heard the learned counsel appearing on behalf of Plaintiffs as well as the learned counsel on behalf of Defendants. I have also perused the evidence of Smt.Sawant, P.W.1 and the documents which were placed before the court. The suit is instituted by M/s.GTC Industries Ltd. being vendors of the goods and M/s.United India Insurance Company Ltd. as the Insurance Company and as a subrogee. ( 8 ) 12. The learned counsel for the Defendants had submitted that the plaint is not properly verified. Reliance was placed on order XXIX Rule 1 of Civil Procedure Code. Reliance was also placed on two Judgments which are as follows : 1) 1999(1) Bombay Cases Reporter 660, Sangli Bank Ltd. 1) 1999(1) Bombay Cases Reporter 660, Sangli Bank Ltd. 1) 1999(1) Bombay Cases Reporter 660, Sangli Bank Ltd. V/s.Kanishka Investment Pvt.Ltd. & Ors. V/s.Kanishka Investment Pvt.Ltd. & Ors. V/s.Kanishka Investment Pvt.Ltd. & Ors. 2) AIR 1995 Calcutta 169 Al-Amin Seatrans Ltd. 2) AIR 1995 Calcutta 169 Al-Amin Seatrans Ltd. 2) AIR 1995 Calcutta 169 Al-Amin Seatrans Ltd. V/s.Owners and Party interested in Vessel M.V."Loyal V/s.Owners and Party interested in Vessel M.V."Loyal V/s.Owners and Party interested in Vessel M.V."Loyal Bird". Bird". Bird". . I have gone through the aforesaid Judgments as well as the provisions of Order XXIX Rule 1 of C.P.C. As per the said Order the Plaint is required to be signed and verified by a Secretary or by any Director or other principal officer of the corporation who is able to depose to the facts of the case. Since the suit is filed by M/s.GTC Industries Ltd. alongwith M/s.United India Insurance Company Ltd., the Plaint ought to have been signed by the officer who falls in the category mentioned in Order XXIX Rule 1 of C.P.C. ( 9 ) No evidence is placed before the Court to show that the person who has signed the plaint as also the person who declared the plaint fall in that category. Infact, Smt. Sawant P.W.1 has admitted in the corss-examination that she does not know who has declared the plaint. 13. A perusal of the plaint in original goes to show that for Plaintiff No.1 the Plaint is signed by the officer of Plaintiff No.2. It is stated below the signature that the said signature is done as a subrogee. If Plaintiff No.1 is joined as a party to the suit, somebody from the office of Plaintiff No.1 falling in the category mentioned under Order XXIX Rule 1 of the C.P.C. should have singed the same. Even if it is accepted that the plaint is signed by the officer of the Insurance Company for himself as well as on behalf of the Plaintiff No.1 still it was necessary to show that the person who has signed the plaint fell in the category mentioned in Order XXIX Rule 1 of C.P.C. I am inclined to accept the stand of learned counsel for the Defendants that the Plaint is not signed or affirmed by the competent person as is ( 10 ) expected under Order XXIX Rule 1(c). This goes to the root of the matter and this is something which goes against the interest of the Plaintiffs. 14. It is the case of the Plaintiffs that the goods were entrusted with the Defendants. This fact is not disputed by the Defendants. The Plaintiffs claim that 32 cartons were delivered in a damaged condition. The damage certificates are at Exh.P2 collectively were pressed in service of the Plaintiffs to show that the Defendants have accepted that part of the consignment was delivered in damaged condition. According to Plaintiffs this constitutes an admission on the part of the Defendants as regards the negligent act of the Defendants. It was submitted that the damage certificates go to show that the Defendants were negligent and therefore, Plaintiffs are entitled for compensation. 15. The learned counsel appearing on behalf of the Defendants had submitted that the damage certificates were issued without prejudice to the case of the Defendants and therefore these damage certificates ( 11 ) cannot be used against the Defendants to show that they were negligent and that it was necessary for the Plaintiffs to lead evidence to show that the Defendants were negligent in handling the cargo. Submissions were made on behalf of the Defendants that the evidence of Smt.Sawant, P.W.1 is silent as regards the negligence on the part of the Defendants and therefore the court should hold that the Plaintiffs have failed to show that the Defendants were negligent in handling the cartons. 16. I have considered the record as well as the submissions put across the bar. The damage certificates at Exh.P2 are undoubtedly without prejudice. If this is so they cannot be used against the Defendants. The use of the terminology ‘without prejudice’ clearly goes to show that the Defendants had not produced clean damage certificates and that the Defendants had merely given certificates to show that certain quantity of the cartons were found in a damaged condition leaving the question open as to how they were damaged and who was were responsible for the damage. ( 12 ) 17. Apart from the above discussion, even if one sees the damage certificates as it is, there is no admission on the part of the Defendants to show that they were negligent in handling the goods. 18. When the damage certificates are issued without prejudice, Plaintiffs have to discharge the burden as regards the negligent conduct on part of the Defendants. It was necessary for the Plaintiffs to lead evidence to show that the Defendants were negligent in handling the goods. Evidence of Smt.Sawant, P.W.1 no where goes to show that as to how the goods got damaged and there is no evidence to show that the Defendants acted in a negligent manner. To that extent, I accept the submission of the learned counsel for the Defendants that Plaintiffs have failed to show that the Defendants were responsible for causing damage to the suit goods. 19. It was argued on behalf of the Defendants that notice under section 10 of Carriers Act, 1865 has not been issued. The said argument is required to be ( 13 ) accepted. Section 10 of the Carriers Act, 1865 provides that a notice must be issued by the person who has suffered damage for the purposes of demanding compensation. 20. In view of Section 10 of the Carriers Act if the Plaintiff No.1 was interested in recovering damages from the Defendants, the notice ought to have been issued by Plaintiff No.1 or Plaintiff No.2 as the alleged subrogee. In the present case, the notice is issued by M/s.Sharp Commercial Ltd. i.e. the purchaser. The said notice cannot be used by the Plaintiffs for the purposes of claiming damages. Hence, it will have to be observed that the institution of the present suit is without complying with the precondition as regards the issuance of notice under section 10 of the Carriers Act, 1865. If this be so, the suit itself is not maintainable and that is how the Plaintiffs would not be entitled to receive compensation from the Defendants. 21. The Plaintiffs have demanded compensation to the tune of Rs.1,33,576/-. Plaintiffs have relied ( 14 ) upon the invoices to show the costs of the goods and other related aspects. Plaintiffs wanted this Court to carry out the arithmetical exercise by referring to the costs of the goods reflected in the invoices and the number of cartons which came to be delivered in the damaged condition on the basis of the damage certificates Exh. P2 collectively. In my view, it would not be proper to carry out such an exercise because it was necessary for the Plaintiffs to show the extent of damage caused to each of the cartons and whether the goods could not be used at all. The fact that the Plaintiffs appointed the surveyor to assess the damaged consignment in terms of costs, is sufficient to hold that the Plaintiffs wanted to fix the quantum of damage in terms of money. The course adopted by the Plaintiffs in appointing the surveyor was undoubtedly proper, however, the Plaintiffs have not been able to prove the surveyor’s report which has been marked as "X" for identification. It may be true that a surveyor was appointed and has been carried out the survey and has given his opinion. However, in the absence of proper proof concerning the survey report, the case of the Plaintiffs that they have suffered ( 15 ) damage to the tune of Rs.1,33,576/- cannot be accepted. 22. Plaintiffs claim that the Insurance Company i.e. Plaintiff No.2 has paid to them a sum of Rs.1,33,576/- and on the basis of that the deed of subrogation was executed at Exh.P5. Based on this deed of subrogation, the Plaintiffs have instituted the present suit. According to the Plaintiffs the production of deed of subrogation was sufficient and no other documents were required to be produced. As against this, Defendants have contended that the Plaintiffs ought to have produced the policy document on the basis of which claim of Plaintiff No.1 was settled in order to confirm the stand, that the policy was purchased by Plaintiff No.1 and the claim of Plaintiff No.1 was settled under the said policy by Plaintiff No.2. The learned counsel for the Defendants submitted that it was necessary for the Plaintiffs to produce the original policy document to throw light on the entire transaction. In support of this, a Judgment was cited being AIR 1988 Supreme AIR 1988 Supreme AIR 1988 Supreme Court 719 E.S.Venkataramiah & N.D.Ojha Court 719 E.S.Venkataramiah & N.D.Ojha Court 719 E.S.Venkataramiah & N.D.Ojha. I have ( 16 ) perused the said Judgment. In order to present true and correct facts before the Court, it was necessary for the Plaintiffs to produce the original policy on the basis of which the claim of Plaintiff No.1 came to be settled. In my view, mere documents of subrogation produced at Exh.P5 is not sufficient to come to a conclusion that Plaintiff No.2 had settled the claim of Plaintiff No.1 and got themselves subrogated. This is so because the document of subrogation at Exh. P5 speaks of the settling the claim of the Plaintiffs to the tune of Rs.1,33,576/- on the basis of the policy sold by Plaintiff No.2 in favour of Plaintiff No.1. 23. For the reasons mentioned aforesaid the Plaintiffs have failed to make out a case that they are entitled to receive damages from the Defendants. 24. Keeping in view the aforesaid observations, I now proceed to answer the issues as follows : Issue No.1 is answered in the negative. Issue No.2 is answered in the negative. Issue No.3 does not survive as is not pressed. ( 17 ) Issue No.4 is answered in the affirmative. Issue No.5 in the negative. Issue No.6 as per the final order. 25. Keeping in view the findings recorded as aforesaid, the Plaintiffs suit is required to be dismissed with costs. Hence, I pass the following decree : :: O R D E R :: :: O R D E R :: :: O R D E R :: i. The suit is dismissed with costs. (R.Y.GANOO,J.) (R.Y.GANOO,J.) (R.Y.GANOO,J.)