- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION jmi SUIT NO.614 OF 1990. Eurotex Industries & Exports Ltd.& Anr. ..Plaintiffs. vs. Datta Roadline. ..Defendants. .... Ms.Priscill Samuel, i/b. Raymond V.Samuel, for the Plaintiffs. None for the Defendants. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 29TH JANUARY 2009 : 29TH JANUARY 2009 : 29TH JANUARY 2009. P.C.: P.C.: P.C.: . This suit is listed under the caption "Ex-parte Decree". The learned Advocate appearing for the plaintiffs has tendered on record an affidavit in evidence of one Vijay Shankar Tiwary, Divisional Manager of the plaintiff no.2. The said affidavit in evidence is taken on record and marked ‘X’ for identification. 2. The plaintiff no.1 is a Limited Company incorporated under the Companies Act, 1956. Plaintiff no.2 is also a Limited Company incorporated under the Companies Act, 1956 doing business of General Insurance, a Subsidiary of the General Insurance Corporation of India, a Government of India Undertaking in the public - 2 - sector. The defendants are doing business of carriage of goods by road. 3. The plaintiffs have stated that the plaintiff no.1 on or about 23rd and 24th January 1989, entrusted consignment of machinery i.e. 4 nos. Volkman Two-for-One Twisters, Type-VIS-09-0/Doublers alongwith assessories into the charge, care and custody of the defendants in well packed and sound condition for carriage, consideration and safe delivery, ex-Bombay to Gokul Shirgaon (Kolhapur). The consignment was imported by the plaintiff no.1 from West Germany under suppliers Invoice No.164.16 dated 10th November 1988, valued at Rs.74,65,145/- (DM 8,64,628/-). The said consignments were accepted by the defendants and booked under 4 consignment notes nos.11457, 11459, 11460 dated 23rd January 1989 and consignment note no.11463 dated 24th January 1989 and loaded into their truck Nos.MWK 3006, NME 2396, NCY 2063 & MHL 7398. 4. The plaintiffs state that the defendants delivered the said consignment at the destination factory site, in damaged condition. The plaintiff no.1 by their letter dated 28th March 1989 issued a letter demanding claim for the damage as per the claim bill attached thereto. - 3 - The defendants have admitted the damage caused to the consignment and issued their damage certificate dated 26th May 1989. The damage to the consignment has been duly assessed by M/s. Burchell Surveyors, Kolhapur and they have recommended the replacement of the damaged parts. 5. The plaintiffs have stated/submitted that the damaged parts were imported from West Germany, under suppliers proforma invoice no.4154183 dated 14th March 1989 of M/s.Volkman Ombh & Company, of which a copy of proforma invoice is produced. It is stated that the plaintiff no.1 is the consignee/owners/insured of the aforesaid consignment of the machinery which were imported by them and are entitled to sue the defendants for recovery of the loss caused to the consignment in transit. The aforesaid damage delivery of the consignee was caused due to negligence, mal-feasance, mis-feasance and non-feasance and/or carelessness on the part of the defendants and/ or their agents and servants and/or driver of the vehicle carrying the said consignment who at the material time were acting in the course of their employment and/or under the instructions/directions and direct control of the defendants. The plaintiffs have stated/submitted that the claim is duly lodged with the - 4 - defendants under the provisions of the Carriers Act, 1865, but the defendants have not settled the claim of the plaintiffs no.1. It is stated that the plaintiff no.1 had taken out from the defendant no.2, the Marine Transit and storage-cum-erection policy no.12130/115/21/88/0010 and the said consignment was covered under the said policy. The plaintiff no.2 have accordingly settled the said claim of the plaintiff no.1, as required under the said Insurance Policy conditions for Rs.1,25,926/-. The plaintiff no.1 have executed a letter of subrogation and special power of attorney in favour of the plaintiff no.2 dated 23rd February 1989 for Rs.1,25,926/-. The plaintiffs have submitted that a sum of Rs.1,25,926/- is now due and payable by the defendants to the plaintiff no.2 with interest thereon at the rate of 18 % per annum from the date of filing of the suit, and/or payment on delivery or realisation. 6. I have perused the averments in the plaint and the documents annexed to the affidavit of evidence. The document at Exh-P-1 shows that the plaintiffs have lodged their claim as per their claim bill for damages caused to their consignment by the defendants. The document at Exh-P-2 shows that the defendants have - 5 - certified that while loading and/or un-loading, some damage and/or breakage has occured to the goods transported by the defendants under the above lorry receipt numbers, mentioned therein. In view of this admission, the subsequent statement in the certificate viz. "the situation was beyond our control and therefore, liability is not attached to us" is of no assistance to the defendants, who have not come forward to prove/establish the same. The document at Exh- P-3 is the survey report of marine transit damage, which proves that damage is caused to the plaintiffs, said consignment and that the net loss assessed is of Rs.1,29,342/-. The document at Exh- P-5 shows that the said consignment was insured by the plaintiff no.1 with the plaintiff no.2 and that the plaintiff no.2 have paid a sum of Rs.1,25,926/- to the plaintiff no.1 as regards the said loss caused to the plaintiff no.1. The said document also shows that the plaintiff no.1 have executed a letter of subrogation and special power of attorney dated 23rd November 1989 for Rs.1,25,926/- in favour of the plaintiff no.2. 7. There is no contest by the defendants and what is stated in the affidavit of evidence has gone unchallenged. There is no reason why the case made out - 6 - by the plaintiffs should not be accepted. By prayer clause (a), the plaintiffs have sought a decree and order against the defendants to pay to the plaintiff no.2 a sum of Rs.1,25,926/- with interest thereon at the rate of 18% per annum from the date of filing of the suit till realisation. The said prayer made in the plaint deserves to be granted. 8. Hence, the suit is decreed in terms of prayer clause (a). The suit, therefore, stands disposed of. Refund of Court fees as per the rules. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]