THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A No.144 of 2003 Date: 20.10.2010 Between: M/s. Economic Transport Organization, Rep by its Manager Mr.S.V.Kumar. ………..Appellant/Defendant And The New India Assurance Co.Ltd., Rep by its Senior Divisional Manager, Parishram Bhavan, Basheerbagh, Hyderabad and another. …….Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A No.144 of 2003 JUDGMENT: This appeal is directed against the decree and judgment dated 21.1.2003 passed in O.S.No.1456 of 1999 on the file of VII Senior Civil Judge, City Civil Court, Hyderabad. 2. The appellant herein is the defendant in the suit. The respondents herein filed the suit against the appellant herein. The parties will be referred as they are arrayed in the lower Court for the sake of convenience. 3. The plaintiffs filed the suit against the defendant for recovery of a sum of Rs.1,08,846/- with costs and future interest contending inter alia that the 1st plaintiff is carrying on business in General Insurance apart from its other business activities of the insurance of the goods in transit and it has issued a Marine Policy to cover up the transit in respect of the suit consignment consisting of Cotton Yarn, Malinga Hosiery Yarn and the consignment was sent by road from Bonghir of Nalgonda District to Benapole in West Bengal State. The said consignment was duly insured by the second plaintiff. During transit, 18 bundles of Cotton Yarn were lost. The defendant failed to make any payment in respect of the claim in spite of the letters and remainders made by the 2nd plaintiff. Therefore, the 1st plaintiff had to settle the claim of the 2nd plaintiff for a sum of Rs.1,08,846/-. Consequently, the 2nd plaintiff executed a letter of subrogation and Special Power of Attorney, dated 12.6.1997, in favour of the 1st plaintiff and that the 1st plaintiff, claiming to be subrogated, filed the suit contending that it stands subrogated to the rights and validities of the 2nd plaintiff against the defendant. 4. The defendant filed the written statement and denied the material averments made by the plaintiffs. It is the case of the defendant that the lorry which was carrying the consignment was parked during night time near Chittapur, Culcutta, West Bengal and 18 bundles of Cotton Yarn were stolen and that the driver of the lorry lodged a complaint with the Chittapur Police and a case was registered in Crime No.341 of 1996 by Chittapur Police. The defendant, however, admitted that the 2nd plaintiff preferred the claim with the 1st plaintiff, but further contended that consignment was sent to at Benapole, West Bengal under owner’s risk. As such, the defendant is not liable to pay Rs.1,08,846/- and thus the specific contention of the defendant is that since the shortage occurred due to theft and not due to the negligence of the defendant, the defendant is not liable to pay any compensation to the 2nd plaintiff. He has also taken a stand that the lower Court has no jurisdiction to try the suit. 5. Necessary issues were framed and on behalf of the plaintiffs, P.W.1 was examined and Exs.A1 to A9 were marked. No witness was examined on behalf of the defendant. 6. Sri Kota Subba Rao, learned counsel for the respondents/plaintiffs submitted that in spite of giving several opportunities, the defendant failed to cross-examine P.W.1, and, therefore, right to cross-examine P.W.1 was forfeited and then the defendant filed I.A.SR.No.1224 of 2003 to reopen the case and to permit him to cross-examine P.W.1. However, since the suit was posted for judgment, the application of the defendant was not considered. It is also submitted that the defendant has deposited 1/4th of the decretal amount as per the interim directions of this Court. 7. The only point that arises for consideration is whether any opportunity has to be given to the appellant/defendant to defend his case? Though the lower Court seems to have considered the rival contentions of the parties and the evidence adduced on behalf of the plaintiffs, but admittedly P.W.1 was not cross-examined and the defendant had no opportunity to adduce evidence on his behalf. It is not clear as to on how many occasions the defendants had taken time to cross-examine P.W.1. 8. Sri Kota Subba Rao, learned counsel for the respondents/plaintiffs submits that the burden lies on the defendant to prove that the defendant was not negligent. It is true that the burden lies on the defendant to prove that he was not negligent in transporting the goods. Anyhow, I am of the considered view that it is always better it the matters are disposed of on merits rather in the absence of one party. Of course, the parities must be diligent in prosecuting or defending their case. If the parties are not diligent or negligent in cross-examining a witness, the Court is justified in forfeiting the right of such party to cross-examine the witness. Unfortunately, the docket proceedings of the lower Court are not available to know as to what happened exactly and under what circumstances, the right to cross- examine P.W.1 was denied to the defendant. Anyhow, having regard to the stand taken by both the parties, though the lower Court seems to have dealt with the merits of the case, but, in fact, it is clear that it is an exparte decree. 10. In the circumstances, I feel that in the interest of justice, an opportunity should be given to the appellant/defendant to put forth his case. In the circumstances, on condition of the appellant/defendant depositing half of the amount shown in the execution proceedings, the petitioner can be given an opportunity to defend the suit. 11. According to Sri Kota Subba Rao, learned counsel for the respondents/plaintiffs, the respondents have claimed Rs.2,22,958/- in E.P.No.55 of 2008 in O.S.No.1456 of 1999 on the file of VII Senior Civil Judge, City Civil Court, Hyderabad. 12. In view of the same, on condition of defendant depositing half of the E.P amount, of course after deducting the amount, if any, already paid by the defendant, within a period of sixty days from today, the decree and judgment of the lower Court stands set aside and the matter stands remitted to the lower Court. On compliance of such condition by the defendant, the lower Court shall give an opportunity to the defendant to cross-examine P.W.1. On such deposit, the respondent No.1/plaintiff No.1 shall be permitted to withdraw the same. The lower Court shall make an endeavour to dispose of the case within six months from the date of deposit of half of the E.P amount. 13. Accordingly, the CCCA is disposed of. No order as to costs. ______________________ Justice B.Chandra Kumar Date: 20.10.2010 mrb