M/S. DHL EXPRESS(INDIA) PRIVATE LIMITED v. THE NEW INDIA ASSURANCE COMPANY LIMITED

BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA …APPELLANT CORPORATION (INDIA) PRIVATE LIMITED T.E.PARK, NO.22B DODDANEKKUNDI 2ND PHASE, INDUSTRIAL AREA, WHITEFIELD ROAD, BANGALORE – 560 048 REPRESENTED BY ITS - 2 - NC: 2024:KHC:36105 RFA No. 1761 of 2017 POWER OF ATTORNEY HOLDER RESPONDENT NO.1 …RESPONDENTS (BY SRI. C.R. RAVISHANKAR., ADVOCATE FOR R-1, R2-SERVED) THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W SEC.96 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 08.07.2017 PASSED IN OS.NO.2150/2010 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR RECOVERY OF DAMAGES. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE UMESH M ADIGA ORAL JUDGMENT This is defendant’s appeal against the judgment and decree dated 08.07.2017 passed in O.S.No.2150/2010 by the VIII Additional City Civil and Sessions Judge (CCH-15), Bengaluru (for short ‘trial court’).

For the sake of convenience, the parties are referred to as per their ranks before the trial Court.

Brief facts of the case are that plaintiff No.2 had dispatched the consignment containing 18 pieces of spare parts for moulds and dies for transshipment from Cochin - 3 - NC: 2024:KHC:36105 RFA No. 1761 of 2017 to Czech Republic. The defendant was dealing with business of carrier, accepted the consignment and undertook to deliver the same in good order and condition. The Plaintiff No.2 had obtained an open marine insurance policy from plaintiff No.1 with certain conditions. The consignment was lost during the transit and not traceable. Consignment did not reach addressee and defendant has regretted for the loss of consignment during transit and admitted non-delivery of the consignment as per e-mail communication. Plaintiff No.2 informed plaintiff No.1 about the loss of consignment. Plaintiff No.1 paid compensation to Plaintiff No.2 and Plaintiff No.2 executed a letter of subrogation, subrogating its rights and authorizing plaintiff No.1 to recover the amount from the defendant. With these reasons, prayed for awarding the compensation of Rs.3,03,030/- by way of damages with interest 18% per annum.

The defendant has contended that loss of consignment was purely due to conditions beyond its - 4 - NC: 2024:KHC:36105 RFA No. 1761 of 2017 control, inspite of taking reasonable care and diligence. The defendant conducted detailed search operation but could not trace the shipment that got lost for the unforeseen reasons. Defendant has further contended that the clauses of the airway bill, limits its liability and claim is limited to the terms and conditions of the agreement signed between the company and consignor at the time of shipment and defendant is not liable to pay the compensation more than the same. With these reasons, prayed to dismiss the suit.

From the rival contentions of the parties, the trial Court framed the following issues: (i) Whether the plaintiffs prove that the defendant did not deliver the goods or consignment as it being lost in transit as alleged and negligence of defendant? (ii) Whether the plaintiffs prove that they are entitled for Rs.3,03,030/- by way of damages with interest at 18% per annum as sought for? (iii) What Order or Decree? - 5 - NC: 2024:KHC:36105 RFA No. 1761 of 2017

The plaintiffs to prove their case examined PW- 1 and got marked documents as per Exs.P-1 to P-13. The defendant in support of his case examined DWs.1 and 2 and got marked documents as per Exs.D-1 and D-2. It appears that DW-1 has not offered for cross-examination and his evidence was not considered by the trial Court.

The trial Court after hearing both the parties and appreciating the pleadings and evidence available on record, answered issue Nos.1 and 2 in the affirmative and decreed the suit by the impugned judgment and decree dated 08.07.2017.

This court heard arguments. Vide judgment dated 24.04.2020, this court framed three additional issues and remanded the case to trial court to record additional evidence, if any, of both the parties and return the file with findings on additional issues.

Thereafter, the trial court secured parties, recorded additional evidence of both side. Heard the - 6 - NC: 2024:KHC:36105 RFA No. 1761 of 2017 arguments of both side and answered all the three additional issues in the affirmative and submitted records.

I have heard the arguments and perused records.

Most of the facts of the case are not in dispute. It is admitted fact that goods were given to defendant by plaintiff No.2 to send from Cochin to Czech Republic. The defendant No.2 accepted the said consignment to deliver it to the concerned addressee. It is also not in dispute that the said goods were not delivered to the addressee. The defendants contends that the loss of goods were beyond his control. In the evidence of DW-2, the defendant has not explained the reasons for non-delivery of the goods to the addressee. In the cross-examination of DW-2, he admits that goods were lost during transit and did not reach the addressee. He contends that there was a special agreement between plaintiff No.2 and defendant. However, the said agreement is not placed on record. As rightly held by trial Court, in view of the provisions of - 7 - NC: 2024:KHC:36105 RFA No. 1761 of 2017 Carrier Acts, 1865, the defendant is liable to pay the damages.

The trial court relied on Sections 6 to 9 of the Carriers Act, 1865 and law rendered by the Hon’ble Supreme Court of India in the case of Patel Road Ways Limited Vs. Birla Yamaha Limited1 and also by the Division Bench of this Court in the case of Inter State Transports Vs. Pfizer Limited2, granted the relief. It does not call for interference.

Plaintiff No.2 had sent consignment through service of defendant which is an admitted fact. When the goods sent through defendant, it was duty of defendant to deliver the goods safely. When it failed to do, plaintiff No.2 had right to sue the defendant for damages.