E
IN THE HIGH COURT 0? KARNATAKA AT BANGALORE
DATED THIS THE 16" DAY or SEPT£MBER, 2010
PRESENT d
THE aom'BLE MR. JUSTICE K.L. MANqfifiAT§Qfn_f_
AND
THE HON'BLE MR. JUSTTCE E MAmoHAR *=
REGULAR FIRST AppE§L,No.é3/2004 (Mom) j
BETWEEN:
M/s. NITCO ROADWAYS2flTD;,:fV LA
A Company incorporated undér_cdi
The Companies Act having its _'
Regd. office'atf"NTTco_HouSEfifiV j
Jammum180_QQ2, and 3 Epancng "W
At No.2122,,§%VCross},c ' T
H.Siddaiah*Road,VBangalo§c--2W.
R/by ins Area_ManagaTM,~
K.Sunil Singh{'_'."_j» .. APPELLANT
(fiyvAdvocatevSri.Y.V.Parthasarathy)
1.=M#s HLM T; International Ltd.,
A wholly owned subsidiary of
EMT Ltd , a company incorporated
» Undo; the Companies Act having
3.. its office at No.17, Ali Askar
d,*Road, Bangalore~52.
i",2,fM/s United India Insurance
Co. Ltd., a Pubiic Sector
Company, having its office at
;€'<'a
3% )'
'3
No.24, Whites Road, Madras~l4.
And one of its bivisional Offices
At No.2, Indian Mutual Building, ,_
N.R.Square, Bangalore--2. .. RESPQNDENTS
(Respondents .. served)
This Regular First Appeai is fiied gnder sec 951
of CPC against the judgment land 'decree "dated
22.3.2003 passed in O.S.No;3889?l993 on the file of
the xxx Addl. City ciyil $udge;g'2Banga1ore,
decreeing the suit for recovaty of money. i
This Appeal is caning on for final hearing this
day, MANJUNATH J. delive'red.t:he__& fo'1,l'owing:
'gegiigzé M E-Ear-
The legality anfiloorsectness of the judgment
and decree Qasseeatyrgflx Addl. City Civil Judge,
v_Bangalose* dated _22,8.2003 in O.S.No.3889/1993 is
Vcalledpinkqpestion in this appeal. Appellant was
the eefeneant and respondents were the gdaintiffs
in the stiitj
=. 3:3 'Facts
leading to this case are as hereunder:
uailfi plaintiff EMT International Ltd. is a
ui*._ *§fi$1ic sector undertaking. 2″‘ plaintiff is a
:43
§ ?M..
General Insurance Corporation engaged in the
business of insurance. 1″‘ plaintiff entrusted
consignment for transportation of HMT “automatic
Plastic Injection Moulding Machine to the defendant’
on 24.3.1991 to transport the same from géngaIo£é;’
to Bombay Vida lorry receipt dated 25:3.l93l;r from
Bombay machine was required to be sent to Russia in
onward shipment with 3/5 AvicE£pors,aMosco, Russia.
Consignment of the 3}tgplaihtiffifwas carried in a
truck bearing .§§,ED£ mé5E8_ hp; the, defendant, which
truck met ;fiithk~an’ accident pnear Sion Circle,
Bombay. As fihich injection moulding
machine has _ completely damaged. In the
_gircumstances’g1# plaintiff requested the defendant
ito»p»deliv§¥,_ damaged machine at Bangalore.
Accordingl§.’damaged machine was delivered to the
Tfit plaintiff at Bangalore. Since consignment was
d”completely damaged, 1″ plaintiff made a claim
.1jefcr’eAAthe 2″” plaintiff. 1″ plaintiff had obtained
.R”.__ Fa “policy with the Zmi plaintiff. 2M1 plaintiff
Q
£3
conducted survey twice and based on the ourvey
report of the 2″” plaintiff, claim of the 3.”
plaintiff was settled by the 2″ plaint”i–:f_’f. “.,.gnd
subsequently after obtaining a a
suit was instituted by the pl’a-.i.nt:3g’.ff “” ‘;.:,?=,;;.~.o’+..:e§g ”
amount of Rs.6,05,853/- whioh’b’1’.faré{n”‘[paLi:_~1t’
plaintiff to the 1″ p1ainLi:–:3_._f£»gt with’ ir}t’e2§é=;étV;V Suit
was resisted by the ,defenVdantf. on vafivons/3 grounds.
The main ground of att’a_tok” ‘the person who
%i”‘§\»W,.;a
has serft pleadgzings has ‘n<;_ 'authority to sign the
same, suit is and the Court of
Bangaloro-.._Ahas to entertain the suit
and no daz'£i'ag€= _ worth Rs . 6, 05, 853/– as
_o3.aime.d§{ tho "V–£riev_fendant. In the oizcoumstanoes,
Adafan'dantVAs:e=;{it1"e$ted the court to dismiss the suit.
above pleadings, following issues '
w-'~:-.-re ft"améd the court below:
2 Wiiether 1% p}.a:i.nti':f:'f proves that ho had
V 'fentrusted one HM? Automatic plastic
Ainjection nmulding machine model No_R 496
under G? No.2~O935020049 dated.24.8.l991 to
tha defendant to carry the same from
5';
T’!
Bangalore to Bombay and for onward shipment
to M/s Avi Exports, Mosco, Russia?
2. Whether plaintiffs prove thete”p the
consignment suffered extensive”. damages
which was brought back by the “defendant
vide G.C.Note No.771063 dated 3.4 i99lflas_
directed by the plaintiff~i?p”~adu
3. Whether the defendant profiesp the Vpersonsd
signed the plaint are not authorized to do
So? “‘ ‘ ‘ edit 4 M it
4. Whether the defendant proves that there is
no cause of action for”the suit? *
5. Whether the suit is batted by limitation?
6. Whether the suit is properifi valued?
7. Whether the defendant proves that the suit
,is ‘net_ maintainable as stated at paras
119a),. {5§,”.(c)}– id) and (e) of written
statement?§a”A”<"
8, whether -the. plaintiff proves that the
»; defendantv is liable to pay a sum of
‘Rs.6,0S,8S3i~ with interest at 18% p.a. as
eieipea?
tt9;g foe what reliefs are ‘the parties entitled
for?}A
V”» 10. what order or decree?
“In order to prove the contentions of the parties,
t”on_Eehalf of the plaintiff one Joseph was examined
xt=as Pwwl and relied upon Exs.Pw1 to 16. Trial
(3
court, after considering the evidence let in by the
plaintiffs as the defendant did not step into the
witness box, held issue NO.1 holding that these is
no dispute between the parties and ltxeeted Zthe”,
defendant as a career of the[consignment;ent;u§ted7x
by ‘the 1%’ plaintiffs, issees f2,’ 6 end; gt ind the
affirmative, issues 3 to “lit negative
and ultimately suit case to he decreed on 22.8.2003
directing the appellantfdefendaeg £§ fay ea sum of
Rs.6,O5,853/mfnithVihtetest,et”l£% p.a. from the
date of suit fig; the ¢gte’¢: realization. This
judgment is caiiee it qfiestion in this appeal.
3. Though “sevefei.*gfofinds are urged by the
appellant in {the iapfieal memo, Mr.Parthasarathy
‘§P§eat;5q* for tfié” appellant, at the time of
asgueentsfiy flesh» urged the following grounds:
1″ Accofding to him, plaintiffs have failed to prove
” [the surVey’report since the surveyor has not been
ienamined. before the court. He further contends
ufthet the person who has signed the pleadings has no
e-e
7
authority to file the suit and that the machine was
not damaged as claimed by the plaintiffs and that
the defendant is not liable to pay ;n£égééef*a§,
awarded by the court below. in the cironmstaficesf’
he requests the court to allow “the ,a§§eaiV and
reverse the findings of the txial oourtit fxw
4. Though respondentse a§é’» served, d”they are
unrepresented. In the cirofifistanoes; we have heard
the counsel for the appellant alone and perused the
records of the trial cofift§V :
5. Having heard the oonnsel for the parties, this
court has to”-r411co;v1s§’5._sé~_¥ following points in this
appea1:.ia
.1; Whether the person who has signed the plaint
“__wag authorized to sign the pleadings of the
Kpresentfisuit?
2.”whe§he£ the survey report has been proved by
thepplaintiffs?
“el3g Whether the Clalfil of” Rs.6,05,853/- by’ the
” ‘plaintiffs has to be honoured by the
defendant?
fit
S
4. Whether the defendant is not liable to pay
interest at 12% p.a.? Wu
K .’-g
5. We have seen the evidence of Jo5efih}tflg gr.
plaintiff EMT International Lt¢n_has iségga Power’
of attorney as per Ex.P–1 autheriiingiflniteflilnfiia
Insurance Company to file the suit on behalfi of theal
1″ plaintiff, Ex.P-2 is the letter bf suhrogation
which is executed his the fetfeieeneral Manager
(Finance), HMT international£ ttdlv on 9.2.1993,
Exs.P-3 & -4 are £fie~ig;g§,e¢§§ip£s, Ex.P*5 is a
letter addressefig%_hyi:itheiWLnefendant to HMT
International’ aoknowleaéingi the receipt of the
letter dated 13?4:l§§l_ issued by the HMT and
reoeivedéhhy the. aefendant, Ex.P–6 is the letter
dated 5.3.1991 addressed b the 1″ laintiff to the
13s defendant olaiming an amount of Rs.6,29,164/- based
F one thek surrey report, Ex.P-8 is the damage
issued by the defendant in respect of
lgthe naehinary in question, Ex.P–l1 is the receipt
wh’,_i$sued for having collected transportation charges
$9
9}
and Ex.P–12 is the survey report. PW-~1 Asst.
Divisional Manager on oath has deposed that has
been authorized to depose on behalf”
plaint iffs. While cross»-examining PW-l”-.’:..it. not if V
suggested to him that Divisiojn’a1″‘Manager’;’.who–.fha–s
signed the pleadings is not an anthorired signatory
to institute the suit on behalf ofx.th=egfgsliavintiffstii
Admittedly, 1″ plaintiff e’§;ecute’d”A jfiower of
attorney in favour of the’ §?’J$’na”5$ntiff . 2″‘
plaintiff is a:.. 3~31i15jlic;:;A_ s§e§:tQr”«…i{;ndertaking company.
A Company cianre§§re”senteVd.–‘by its manager.
Therefore}, to be answered against
the appellarit of the respondents.
fair. as the«””dazvnage caused to the maehine is
conc:_e’:neVd,__°’».surve§: has been conducted twice. First
Evsiirvey._was. . oexiducted at Bombay and second survey
eondi;a.-sted in Bangalore. Admittedly, damaged
been delivered to the 1″ plaintiff by the
iidefendant by opening the consignment in Bangalore.
nature of damage caused to the machinery is
pa.
H}
known to the defendant. is’ plaintiff as per Ex.P–6
called upon the plaintiffs to pay a sum.» of
Rs . 6, 29, 164/—- based on the recommendation
surveyor by M/s R.A.Rajagopal. ‘1’hough”‘<'.__:EIx "
the receipt of the defendant,fNsa'n'.ey_ '-«has
disputed. The contents of suVi=vey_ re1.:fo1:t'v
seriously challenged in cross~e:<a1fiinfation.V
When the defendant has"'*:i_eli.'\fe"'r'eLd; the darnagéd goods,
value of the machinery was worth
more than ificaused to the
machinery has =Rs.6 lacs and odd
which "f satisfied by the 2""
plaintiff t’::___ the’ _i’°’.’? »~ .fi1.aintiff, same is not in
dfiisputefig it Therefore, ‘we do not see any reason to
accept”-._Vth:e«.Agaksgument of the counsel for the
appellant survey report has not been
Vjyproyved claim of the 1″ plaintiff as per
; not been questioned by the appellant.
we answer the said point: against the
h ‘ aipgoeviflant . 5%,.
:*et»¢é2o91o
I I
7. So far as awarding of interest is concerned,
though 2″ plaintiff has satisfied the claim of the
1″ plaintiff much prior to the institution of the
suit, trial court has not awarded any: interest.
prior to the institution of the suit and what has’
A,
been awarded by the court below is rrom the date of
the suit till the date of reaiization, faanitpéa1y,i*
it is a comercial transaction} ‘Business of the 2nd
plaintiff insurance com@anyL§is “a’xéommercial one.
In a commercial “transaction. if 112%’ interest is
awarded, same~ cannot” be’ considered as on higher
side. Therefore,’fa-._A’said.i_'”poi’nt is also answered
against the appellant; »f*
8i ‘.:n the result, fie do not see any merits in this
apneaisshfloeordingly, the appeal is dismissed.