Iffco-Tokio General Insurance Company Limited & Anr. v. Dynamic Movers Private Limited

2. It is stated that goods which are subject matter of the present suit are components for Maruti vehicles and were shipped by Suzuki Motor Corporation, Hamamatsu, Japan from Omaezaki Sea Port, Japan to Nhava Sheva Port, Maharashtra. Thereafter they were consigned to thc Defendant CS (OS) No. 436 of 2008 Page I of[7] 2013:DHC:8459 arl./\ for delivery at the factory of MUL at Gurgaon. It is stated that MUL is the owner and consignee of the suit consignments for valuable considerations. The consignment comprised 30 packages contain ing 295 crates filled with the components for Maruti vehicles. They were consigned by MUL to the Defendant by Consignment Note No. 922 dated 9u' March 2005. The transportation was to be carried out through a Trailer. It is stated that the consignment weighing 17.[6] tons rvas in perfectly sound condition, wrapped externally with wood frame crates with fork lift runners on the bottom. The parts packed in cartons were placed in the crates which were covered by polythene sheets.

3. The defendant reported to MUL that the said Trailer met with an accident on llth March 2005 at around 5 a.m. at about 10 Kms on Pali-Ajrner Highway near village Matth, Rajasthan resulting in.damage to the consignment.

ITGICL then appointed a spot surveyor who inspected the damage and submitted spot surveyor report to ITGICL on 2l't March 2005. The container was thereafter shifted by the Defendant to another Trailer and delivered at MUL on 22"d March 2005. The consignment was inspected by the final surveyor appointed by ITGICL in CS (OS) No.436 of 2008 Page 2 of[7] arl./l the presence of representatives of the MUL on 23'd March 2005. The Defendant issued a damage certificate dated 23'd March 2005 to MUL that the consignment at the time of delivery for transportation was sound and was damaged on account of accident on route. The final surveyor assessed the loss suffered by MUL as Rs.57,59,818.65. Since part of the consignment was urgently. required, MUL airlifted them to India thus incurring additional costs of Rs.11,49,101. The damage to the container was assessed at Rs.12,104. MUL thus suffered the total loss of Rs.69,21,024.

4. On 6th June 2005, MUL sent a notice of claim to the Defendant by way of registered post under Section 10 of the Carriers Act, 1865 demanding a sum of Rs.1.25.crores. This was duly served upon the Defendant. A further monetary claim by MUL was lodged with the Defendant by a notice dated 7ft June 2006 for a surn of Rs.69,2I,024 being the actual loss suffered by it.

ITGICL on receipt of the surveyor report under the marine policy and the special contingency policy, approved the claims for an aggregate sum of Rs.69,21,024: Rs.57,59,819 towards the marine poiicy and Rs.II,61,024 towards the special contingency policy. These amounts were paid by ITGICL to MUL on 10ft August 2005 and 9ft June 2006 respectively. Upon receipt of the aforementioned payments, MUL executed and delivered a CS (OS) No.436 of 2008 Page[3] of[7] )r letter of subrogation-cum-Special Power of Attorney dated 19s October 2007 in favour of ITGICL. It is accordingly stated that ITGICL has subrogated the rights of MUL and is authorised by MUL to recover the sum of Rs.57,58,819 from the Defendant.

5. In para 20 it is stated that Plaintiff No. t and Plaintiff No. 2 is entitled to Rs.98,65,588 as per the following details:

(i) Amount paid under the marine policy on 10.08.2005

(ii) Interest thereon from 10.08.2005 to

(iii) Amount paid under the special continsency policy on 09.06.2006

(iv) lnterest thereon from 09.06.2006 to rs.02.2008

6. The Plaintiff has filed documents in support of the plaint. The originals have been marked as exhibits.

7. Summons could not be served on the Defendant at the address originally stated in the memo of parties filed with the suit. The fresh address of Defendant was ascertained by the Plaintiff and the amended memo of pa;ties was taken on record. On 25s August 2009 it was noted by the Court that the CS (OS) No.436 of2008 Page 4 of[7],/ Defendant had not been appearing despite service. Fresh summons were issued to the Defendant on the said date. However, at this stage the Defendant could not be served despite the Plaintiffs taking appropriate steps. The Plaintiffs then filed IA No. 8350 of 2010 under Order V Rule 20 CPC for effecting service through publication. The application was allowed on 26fr November 2010 by the Joint Registrar and the Defendant was permiffed to be served through publication in 'The Statesman'. Proof of publication of the notice in the nelgspaper was filed by the Plaintiff as noted in the order dated 25ft March 2011 of the Joint Registrar.

8. On l't June 2012 when none appeared for the Defendant despite service through publication, the Defendant was proceeded against ex parte.

9. The Plaintiff has filed the affidavits of examination-in-chief of Mr. S.K. Chhabra, Vice President of ITGICL dated 23'd September 20II. The said affidavit has marked the Plaintiffs' documents as exhibits. This includes the original marine insurance certificate, the special contingency policy, the original of the consignment note, the original of the joint inspection rgport dated 23'd March 2005 (Ex. PW-l/6) and original damage certificate dated 25ft March 2005 (Ex.PW l/7). The original postal receipts by way of proof CS (OS) No. 436 of 2008 Page 5 of[7] q. of dispatch of the notices of claim dated 6th June 2005 and 7th June 2006 have been marked as exhibits PW-1/8 and PW-1/10 respectively.

10. Mr. Chhabra has proved the said affidavit by making a submission on oath on I't March 2012. Mr. Shahn awazRazvi. a Chartered Accountant and qualified Surveyor and Loss Assessor, who had conducted the spot survey in the present czne, was examined as PW-2. Captain Manvender Singh, the second and final Surveyor and Loss Assessor has filed his affidavit by way of evidence by examination of chief dated 26th Novem ber 2012. He has marked his surveyor report dated 15s July 2005 as Ex. PW-3/1. He has proved his affidavit on 5ft February 2013.