Remanded

United India Insurance Co. Ltd. v. M/S Gati Cargo Management Services

Karnataka HC16 Nov 2023RFA/358/2008

Case brief

AI extract

What is this about?

The High Court allowed the first appeal filed by an insurance company against a judgment dismissing a suit for recovery against a cargo carrier. The court set aside the lower court's decision and remitted the case to the trial court to assess the survey report's authenticity and allow the evidence to be properly tested.

What did the court decide?

Impugned judgment and decree set aside; matter remitted to trial court for fresh disposal by re-examination of survey report author.

United India Insurance Co. Ltd. Vs M/S Gati Cargo Management… — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:40853 RFA No. 358 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF NOVEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 358 OF 2008 (MON)

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD., DIVISION;OFFICE-2, INDIAN MUTUAL BUIDLING, 3^RD FLOOR, N.R.SQUARE, POST BOX NO.6813, BANGALORE 560 002.

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BY IT'S DIVISIONAL MANAGER

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MESSRS WRIGLEY INDIA PRIVATE LIMITED RAJANAKUNTE, A.V.PURA, DODDABALLAPUR ROAD, BANGALORE 560 064,

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REPRESETNED BY IT'S P.A.HOLDER-I^ST APPELLANT.

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…APPELLANTS (BY SRI. O MAHESH., ADVOCATE)

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AND:

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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M/S GATI CARGO MANAGEMENT SERVICES (A DIVISION OF GATI CORPORATION LIMITED, NO.786, 8^TH A CROSS SECTOR A YELAHANKA TOWN, BANGALORE 560 064. BY ITS PARTNER ALSO AT NO.1-7-293, M.G.ROAD, SECUNDERABAD.

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…RESPONDENT (NOTICE SERVED V/O/D: 03.11.2023 SOLE RESPONDENT IS ABSENT.

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THIS RFA FILED U/S 96 OF THE CPC AGAINST THE JUDGEMENT AND DECREE DT.23.10.07 PASSED IN OS NO.2119/02 ON THE FILE OF THE III ADDL. CITY CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR RECOVERY OF MONEY.

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NC: 2023:KHC:40853 RFA No. 358 of 2008

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Sri O.Mahesh, learned counsel for the appellant through V.C. No representation on behalf of the respondent.

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Unsuccessful plaintiffs have preferred the present appeal challenging the validity of the judgment and decree dated 23.10.2007 passed

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in OS 2119/02 on the file of III Addl. City Civil Judge, Bangalore.

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Plaintiff filed suit for recovery of money in a sum of Rs.36,400/- together with interest at the rate of 18% p.a.

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It is contended in the plaint that, plaintiff is a General Insurance Company carrying on business of Motor Insurance, Marine Insurance, Fire Insurance etc., having its registered Office at Chennai and its Divisional Office at Bengaluru. Second plaintiff is a chewing gum manufacturing Company. Second plaintiff has entrusted a consignment of 130 package duly packed containing chewing gums to the defendant at Bengaluru for safe transportation and timely

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3 - NC: 2023:KHC:40853 RFA No. 358 of 2008

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delivery from Bangalore to Gauhati on 31.03.1999. Defendant accepted the said consignment under G.C.Note No.BO 92580 dated 31.3.1999. It is further contended that the goods reached the destination on 10.4.1999 and at the at the time of delivery, the consignee noticed that the consignment was damaged and there was a short supply. Immediately, a Surveyor was appointed and Surveyor made the survey and found that six cartoons were damaged on account of the cartons coming into contact with water and 8 packages of WSP tubes were short-delivered.

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The Surveyor estimated the loss to the tune of Rs.35,471.98.

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The defendant however issued open delivery certificate on 06.05.1999 and Plaintiff No.2 surrendered the original G.C.Note to the defendant while receiving the open delivery certificate.

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First defendant had also issued a transit Marine Policy bearing No.SPD/070200/83/1/367/99 in favour of the second plaintiff. The first plaintiff verified and scruitinized the

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4 - NC: 2023:KHC:40853 RFA No. 358 of 2008

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claim made by the second plaintiff and settled a sum of Rs.36,400/-.

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The plaintiffs suffered loss on account of damage caused to the consignment due to negligence, misconduct and carelessness on the part of the workmen and agents of the defendant and thereby, the plaintiff laid a claim for recovery of Rs.36,400/- as per the terms of contract.

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The defendant, after service of suit summons, entered appearance and filed detailed written statement stating that consignment was duly accepted at Yelahanka Branch in Bengaluru vide Docket No. BO - 92580 dated 31.03.1999 and it was safely delivered at the consignee's place in Gauhati and there was no damage caused and the claim is illusory and sought for dismissal of the suit.

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Based on the rival contentions of the parties, learned trial Judge raised the necessary issues which read as under:

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Whether the plaintiffs prove that they suffered loss on account of damage caused to consignment due to negligence, misconduct and carelessness

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on the part of workmen and servants of defendant?.

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Whether the plaintiffs are entitled to recoverf a sum of Rs.36,400/- from the defendant with interest at 18% and cost as prayed for?

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What order decree?

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On behalf of plaintiff, Officer of the plaintiff-

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Insurance Company by name Sri Tejendrapal Singh was examined as PW.1 and he has relied upon seven documents in support of his case comprising of survey report, certificate, copy of notice, postal acknowledgment, copy of legal notice, letter of subrogation and power of attorney, copy of marine policy and the reply which were marked as Exs.P.1 to P.7.

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As against the evidence placed by the plaintiffs, on behalf of the defendant, one Sri H.B.Guruprasad was examined as DW.1. No documentary evidence was placed on record by the defendant.

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Learned trial Judge, after conclusion of recording of evidence, heard the parties in detail and dismissed the suit of the plaintiffs holding that material evidence placed on record on

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behalf of the plaintiffs are hardly sufficient to prove the claim made by the plaintiffs.

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Being aggrieved by the said judgment and decree, the unsuccessful plaintiff-Insurance Company has preferred the present appeal on the ground that the trial Court has erred in holding that PW. 1 an Officer of the 1st plaintiff-Company who was examined had no authorization letter and therefore his evidence cannot be considered. Further, the trial Court ought to have seen that the evidence placed on record, as, Ex.P1 to P7 clearly indicated and established the claim of the plaintiffs that the consignment in question was damaged during the course of transportation due to rain water seepage which was result of negligence and carelessness on the part of defendant-carrier. It is further urged that damage certificate marked as Ex.P2 was issued by defendant-carrier corroborates the case of the plaintiffs which, the trial Court has not taken into consideration.

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Sri O.Mahesh, learned counsel representing the appellant-plaintiff, reiterated the grounds urged in the appeal memorandum and contended that the learned trial Judge has misconstrued probative value of the material evidence on

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NC: 2023:KHC:40853 RFA No. 358 of 2008

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record and dismissed the suit of the plaintiffs based on surmises and conjectures and sought for allowing the appeal.

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He also pointed out that merely not having personal knowledge in respect of suit transaction by PW.1 itself did not cause any serious dent to the case of the plaintiffs and the learned trial Judge has misdirected himself in not appreciating the oral evidence of PW.1 and sought for allowing the appeal.

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There is no representation on behalf of the defendant though served with the notice of the present appeal.

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In view of the contention urged on behalf of the appellant and the appeal grounds, following points would arise for consideration:

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Whether the plaintiff has proved the suit claim by placing necessary oral and documentary evidence on record.

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If not, whether the plaintiff has made out a case for remitting the matter to the trial Court for fresh disposal in accordance with law?

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What order?

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In the case on hand, issue of Marine Policy and consignment being accepted by the defendant to be carried to

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Gauhati is not disputed. However, PW.1 while answering the questions put to him in the cross-examination clearly admitted that he has no personal knowledge about the suit transaction. However, he has explained that he is deposing on the basis of the record.

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The only question that was to be decided before the trial Court was, whether the consignment got damaged on account of the negligence on the part of the defendant and was there a short delivery of goods.

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In the case on hand, there was a short delivery and damage delivery reported by the consignee at Gauhati to the plaintiffs. The same has been taken note of by the plaintiffs and a Surveyor came to be appointed to assess the damage as well as the short delivery. The Surveyor report is marked at Ex.P1 and the author of Ex.P1 is not examined on behalf of the plaintiffs to prove Ex.P1. Admittedly, defendant is not a party to Ex.P1. Under the circumstances, the trial Court holding that the PW.1 has no personal knowledge and therefore, dismissing of the plaintiff's suit is just and proper.

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NC: 2023:KHC:40853 RFA No. 358 of 2008

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However, since the consignment is accepted by the consignee with open delivery receipt and noticing the short delivery and damage delivery, an opportunity is to be provided for the plaintiff to prove Ex.P1 in accordance with law. The defendant will definitely have a chance to cross-examine the author of Ex.P1 and establish his case that consignment has not got damaged on account of the negligence on the part of the agents/employees of the defendant.

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Accordingly, Point Nos. 1 and 2 are answered partly in the affirmative and affirmative respectively.

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Regarding Point No.3: In view of finding of this Court on Point Nos. 1 and 2 as above, following order is passed:

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ORDER

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(i) Appeal allowed.

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(ii) Impugned judgment and decree dated 23.10.2007 passed in OS 2119/02 on the file of III Addl. City Civil Judge, Bangalore City, is set aside.

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(iii) Matter is remitted back to the trial Court for fresh disposal in accordance with law.

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NC: 2023:KHC:40853 RFA No. 358 of 2008

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(iv) It is made clear that this Court has not expressed any opinion on the merits of the matter with regard to the alleged negligence on the part of the defendant.

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(v) Plaintiff-appellant shall appear before the trial Court without further notice on 4th December 2023.

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(vi) Thereafter, the learned trial Judge shall issue fresh notice to the respondent and proceed with the suit in accordance with law.

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Sd/JUDGE

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Sk/-

United India Insurance Co. Ltd. v. M/S Gati Cargo Management Services

Case brief

What is this about?

What did the court decide?

United India Insurance Co. Ltd. v. M/S Gati Cargo Management Services

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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Case details

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