BLUE DART EXPRESS Vs. ENTEL LIMITED

JUDGEMENT

(1.) The present appellant was the defendant against whom the present respondents as plaintiffs had instituted a suit in O.S.No.7939/2000 in the Court of the learned XXXIII Additional City Civil and Sessions Judge at Bangalore City (CCH-33) (hereinafter for brevity referred to as the "Trial Court") for recovery of a sum of Rs. 4,66,893/- with interest on a sum of Rs. 3,87,000/- at the rate of Rs. 12% per annum. The said suit came to be decreed by the judgment and decree of the Trial Court dated 30-01-2010. It is against the said judgment and decree, the defendant in the Court below has preferred this appeal.

(2.) The summary of the case of the plaintiffs in the Trial Court was that, the plaintiff No.2 is an Insurance Company and plaintiff No.1 had insured with plaintiff No.2 against the damage or loss in transit of goods for a total amount of Rs. 3.00 Crores for a period of one year commencing from 29-06-1998 under Marine Policy (Cargo). The defendant is a common Carrier and the plaintiff No.1 had consigned its goods, viz. Eiki Plasma Display PLD 42 UE Projector for its transportation from Bengaluru to their Unit at Chennai. The plaintiffs claimed that, the defendant as a Carrier of goods had caused damage to the said goods entrusted for its transportation to the defendant. Thereafter at the claim lodged by the first plaintiff with its insurer i.e. the second plaintiff, a Surveyor was appointed and the Insurance Company got a survey conducted to assess the quantum of damage and also the nature of damage. After obtaining the Surveyor's report, the first plaintiff's claim was settled by the second plaintiff at a sum of Rs. 3,87,000/- on 31-03-1999. By virtue of the settlement of the claim by the second plaintiff, the first plaintiff executed a Letter of Subrogation and Special Power of Attorney in favour of plaintiff No.2 - the Insurance Company. As such, under the right of subrogation, plaintiff No.2 issued a legal notice dated 31-08-2000 to the defendant claiming a sum of Rs. 3,87,000/- that was paid by it to plaintiff No.1 with interest at Rs. 18% per annum. Since the defendant denied its liability vide its reply notice dated 29-08-2000, the said Insurance Company joined by the insured, as plaintiffs, had instituted a suit for recovery of money against the defendant transporter.

(3.) The defendant after receipt of summons appeared through its counsel and filed its Written Statement, wherein, it contended that the plaintiffs had not issued a valid notice under Section 10 of the Carriers Act, 1865 within the stipulated time and that there was no privity of contract between it and the plaintiff No.2, therefore, the suit of the plaintiffs was not maintainable.