1 s2327-97jud.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 2327 of 1997 1. S. Kumars Ltd. a Limited Company incorporated in India under the Indian Companies Act having their registered office at “Niranjah” 99, Marine Drive, Mumbai 400 002 2. United India Insurance Co. Ltd. a Limited Company incorporated in India, under the Indian Companies Act having their registered office at United India House 24, Whites Road Madras 600 014 & Bombay Divisional Office No.15 at Mehta, 3rd floor 91, Bombay Samachar Marg, Bombay 400 023 .. Plaintiffs v/s. Bombay Devas Roadways 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 63/65 Dr. Maheshwari Road, Chinch Bunder, Near Sandhurst Road Stn., Bombay 400 009 ..Defendants 2 s2327-97jud.sxw Mrs. Dwivedi for the Plaintiffs. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 9th March, 2011 ORAL JUDGMENT : 1. The plaintiffs have instituted this suit for recovery of Rs.1,45,190/- along with interest at the rate of 18% per annum from the date of filing of the suit till realization and for costs. The defendants have not filed any written statement. Therefore the suit was taken up as undefended suit. 2. Few facts necessary for the disposal of this suit are as under: The plaintiffs, a limited Company wanted to transfer certain quantity of cloth from Bombay to Devas. Accordingly the goods were entrusted with the defendants for delivering the goods to Devas. The lorry receipt is at Exhibit P-1. According to plaintiffs while the goods were in transit, on account of the negligence of the defendants, the cloth measuring about 4898.25 meters was delivered in the damaged condition. The plaintiffs arranged to get the Damage Certificate and the same is produced at Exhibit P-3. According to 3 s2327-97jud.sxw plaintiffs, they got a survey done through M/s. M.K.Gupta and Company in regard to the goods which were damaged and the Survey Report dated 13.8.1994 was filed. However, the plaintiffs could not prove the said document as per the provisions of Indian Evidence Act, 1872 and that is how the said survey report is marked “X” for identification. The plaintiffs had by their notice dated 22.8.1994 called upon the defendants to pay to them a sum of Rs.1,80,600/-. 3. Though the plaintiffs have demanded Rs.1,80,000/- and odd, while issuing notice the plaintiffs have restricted their claim of the figure of Rs.1,45,190/-. The plaintiffs have given credit to the amount which they have received on account of salvage. Between the plaintiff no.1 and the plaintiff no.2 a letter of subrogation and Special Power of Attorney was executed in favour of plaintiff no.2 by Senior Vice President (Fabrics) of plaintiff no.1 and that is how the plaintiff no.2 stands subrogated. 4. The plaintiffs have also produced a cost sheet at Exhibit P-2. 5. In the course of trial plaintiff examined Mrs. Pratibha K. Shetty 4 s2327-97jud.sxw Assistant Manager of Plaintiff No.2, i.e. M/s. United India Insurance Company Ltd. 6. I have heard learned Counsel Mrs. Dwivedi, appearing on behalf of the plaintiffs. According to her the Damage Certificate produced by the plaintiffs at Exhibit P-3 is sufficient to hold that cloth measuring 4898.25 meters was damaged on account of the negligence of the defendants. She further submitted that the plaintiffs are entitled to compensation as regards the loss of the said cloth. 7. Learned Counsel appearing on behalf of the plaintiffs submitted that according to the plaintiffs cost of 1 meter was Rs.36/- and that is how the loss turned out to be Rs.1,80,600/- as stated in Exhibit P-4 Learned Counsel for the plaintiffs had therefore submitted that the plaintiffs should be granted decree as the evidence of Mrs. Pratibha K. Shetty has gone unchallenged and there is no challenge to the documents which are produced on record. 8. I have perused the record including the evidence and the various documents discussed above. The damage certificate issued by the 5 s2327-97jud.sxw defendants at Exhibit P-3 is without prejudice and issued for insurance purpose only. Even if that portion of the damage Certificate is overlooked, it may at the most go to show that the plaintiffs suffered loss to the tune of cloth admesuring 4898.25 meters. In order to get damages for the loss of the cloth it was necessary for the plaintiffs to place before the Court sufficient evidence to show as to the cost at which the plaintiff no.1 had purchased the said cloth. 9. In order to claim damages it was necessary for the plaintiffs to prove the cost of the cloth namely 4898.25 meters. The sole witness of the plaintiffs Mrs. Prathibha P.W.1 has stated as follows: “ I say that the cost sheet width: 54, dated 20.11.1993 of M/s. S. Kumar Synfabs Limited showing therein the quality and value of consignment . I have produced the office copy and that they are the same. I identify the same from the record maintained by the plaintiffs and the contents are true and correct. It may be exhibited and read in my evidence”. Giving maximum latitude to the plaintiffs as regards the documents at Exhibit P-2 it is difficult to accept the case of the plaintiffs that the plaintiffs suffered damage at the rate of 6 s2327-97jud.sxw Rs.36/- per meter. It is the case of the plaintiffs that the plaintiff no.1 had purchased the cloth from the market and was to be shifted to Devas. If this be so, it was possible for the plaintiffs to produce the invoice under which the said cloth was purchased by the plaintiffs. There is no mention of the person who sold the cloth to plaintiffs. The said document does not show the name of the plaintiffs and said document cannot be connected with the business of plaintiffs. For these reasons, the document at Exhibit P-2 cannot be accepted to support the case of the plaintiffs. 10.In view of the aforesaid findings, the plaintiffs have failed to prove that the cost of the cloth was Rs.36/- per meter. 11.On account of the failure of the plaintiffs to prove the cost of the cloth per meter, it would be difficult to accept the case of the plaintiffs that the plaintiffs suffered loss to the tune of Rs.1,45,190/-. In my view, it would not be possible for this court to arrive at any hypothetical figure and grant damages to the plaintiffs. 12.For the reasons mentioned aforesaid, I hold that the plaintiffs have 7 s2327-97jud.sxw not been able to prove that they have suffered damage in terms of money to the extent of suit claim or part thereof. In view of the above, the suit is required to be dismissed. Hence the order. ORDER Suit is dismissed with no order as to costs. [R.Y.GANOO, J.]