1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.3082 OF 2003 M/s.Tube Glass Containers Ltd. & Anr. ...Plaintiffs. Versus M/s.Om Transport Corporation. ...Defendant. ....... Mr. V.S. Amin i/b. V.S. Amin & Co. for the Plaintiffs. None for the Defendant. ...... CORAM : DR. D.Y. CHANDRACHUD, J. July 14, 2009. P.C.: The suit has been instituted for the recovery of an amount of Rs.9,17,718/- with interest at 18% p.a. 2. The First Plaintiff engaged the services of the Defendant on 31st January 2002 and entrusted into the custody of the Defendant, a consignment of 1164 boxes of Ampoule Clear Glass 2ml and Vial Tubular of various sizes for carriage from Badlapur to Dewas. The consignment was valued at Rs.9,83,015/-. The Defendant accepted the consignment under a consignment note dated 31st January 2002. 2 The truck carrying the consignment met with an accident on the Bombay-Agra Road. The Consignee, Ranbaxy Laboratories Ltd. refused to take delivery because the consignment was found to be in damaged condition. The consignment was, therefore, diverted to the First Plaintiff’s distributor and unloaded for carrying out a detailed survey. An independent surveyor was appointed to conduct the survey. The Survey Report dated 11th May 2002 confirmed a net loss to the extent of Rs.9,71,718/-. The Defendant also issued a damage certificate dated 16th May 2002 to the First Plaintiff and to confirm a total loss to the extent of Rs.9,83,015/-. The consignment was insured by the First Plaintiff with the Second Plaintiff against transit risk. The First Plaintiff, by a letter dated 20th March 2002 lodged a claim upon the Defendant and thereafter, upon the Second Plaintiff. The Second Plaintiff paid a sum of Rs.9,17,718/- to the First Plaintiff. The First Plaintiff issued a letter of subrogation and Power of Attorney dated 4th July 2002. 3. The Defendant has been served with the writ of summons, 3 but has failed to enter appearance. In these circumstances, the averments contained in the Plaint have not been controverted. The Plaintiffs have filed an affidavit in lieu of the Examination-in-Chief of the Administrative Officer of the Second Plaintiff and a compilation of the original documents. The Plaintiffs have duly proved the entrustment of the cargo to the Defendant; the damage caused to the cargo in transit; the resulting damages sustained as a result of the negligence of the Defendant and the payment made by the Second Plaintiff to the First Plaintiff. The suit shall accordingly 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. 4. There shall be a refund of Court fee, if any, as per rules. .....