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1999 DIGILAW 459 (KAR)

BANGALORE SAREE UDYOG v. SAVANI TRANSPORT LIMITED

1999-09-02

H.N.TILHARI

body1999
HARI NATH TILHARI, J. ( 1 ) THIS revision arises under Section 18 of the Karnataka Small causes Courts' Act from the order of the Judge Small Causes recording the finding to the effect that the Small Cause Court had no jurisdiction to entertain and decide the plaintiff's suit which was for recovery of a sum of Rs. 15,120/- for the value of the goods lost. ( 2 ) THE plaintiff's case has been that the defendant, who has been the Carrier. The goods had been handed over to it and were booked from Bangalore to Baroda and thereafter were rebooked from baroda to Bangalore, as they were booked with defendant's consignment bearing No. 22007 dated 8. 2. 1992, from Bangalore to baroda and the same was to be delivered to his customer M/s. Pinky Sarees. The plaintiffs' further case is that, thereafter the M/s. Pinky Sarees instructed the plaintiffs to send the documents in respect of the aforesaid consignment through Bank for clearance of the payment and the plaintiffs. As per the instructions of the customer, m/s. Pinky Sarees, booked the consignment with the defendant and sent the original invoice and lorry receipt to the Bank of Baroda, mandov Branch, Baroda, for being honoured of by making payment. Plaintiffs' case is that customer did not cleaf and return the document after making payment to the Bank and the Bank Manager sent the documents to plaintiff with endorsement that those documents were dishonoured. After receipt of the documents, the plaintiffs informed the defendant to rebook the above consignment from Baroda to Bangalore and deliver the same at Bangalore City vide letter dated 9. 10. 1992. According to plaintiffs' case, on 15. 3. 1993, defendant had stated that the aforesaid consignment had been stolen from the Baroda delivery godown and requested the plaintiff to hand over the invoice and the lorry receipt to them. The defendant asked the plaintiffs to give the invoice and lorry receipts, so that the defendant could claim value of the consignment from insurance Company. According to the plaintiffs' case the loss of consignment and hand delivery of the consignment was due to the negligence and misconduct of defendant and its employees and, so plaintiff filed the suit for recovery of the cost of the goods, that is a sum of Rs. According to the plaintiffs' case the loss of consignment and hand delivery of the consignment was due to the negligence and misconduct of defendant and its employees and, so plaintiff filed the suit for recovery of the cost of the goods, that is a sum of Rs. 15,320/- with current interest at 18% from the date of the suit till the date of realisation. ( 3 ) THE defendant raised the plea that suit is not cognisable by the Small Cause Courts and it, appears reliance was placed on item No. 29 of the Schedule-8 of the Small Causes Courts Act 1964 and the Court opined that, as the suit is for recovery of loss, so in view of law laid in DELHI HARYANA TRANSPORT CORPORATION vs M/s. TATA TEA LTD. that the Small Cause Court had no jurisdiction to try the suit, it held the suit to be not entertainable by it and, passed the order for return of the plaint. ( 4 ) THE plaintiff has now come up in revision for the above to bequashed. ( 5 ) THE learned Counsel for the petitioner contended that the Court below illegally held that it had no jurisdiction and it has erred in relying on Entry-29 of Schedule 8 as well as on the decision of this court in the case of Delhi Haryana Transport Corporation vs Tata tea Ltd. (supra), as that was the case in which 2nd plaintiff has been the Insurance Company and the Court relying on Article 32 of the Schedule held that the Small Cause Court had no jurisdiction. ( 6 ) I have applied my mind to the contentions of the learned Counsel for the Revision Petitioner. A Perusal of the decision in the above cited case, reveals that the suit was filed by Insurance company and the Court observed that the question in that case to be considered was; "whether the suit filed by the Insurance Company against the defendant - petitioner is directly a suit on policy of insurance?" And it found that Insurance Company could not have maintained the suit against Carrier, independent of policy of insurance. It observed that it is the policy of insurance which gave right to Insurance Company to maintain the suit, as Insurance company had to re-imburse for the loss incurred by consignor on account of damages and it is only on account of the indemnity of insurance Company the alleged damages were re-imbursed and insurance Company is suing. The Insurance Company could not have maintained the suit independent of Insurance Policy. Thus considered in Delhi Harayana Transport Corporation case, this Court held that suit filed by Insurance Company was not maintainable, as per Entry-31 of Schedule, in the Small Cause Court, as it was based on insurance policy. As such the decision referred to above is not applicable. Here the suit for recovery of the price of the goods lost has been filed by consignor. That quantum of the price is definite. It cannot be said to be a case of general average loss, where the general loss has to be calculated on the basis of certain criterias and complications do arise. Here it is the suit for recovery of the price of the goods and the Entry-29 does not relate to simple loss matters of definite ascertained value and as entry relates to the suit for recovery of a general average loss, in other words Entry-29 of schedule 8 relates to unspecified types of loss, suit for recovery of loss of specified nature and definite quantum, i. e. price of goods lost namely which do not come within the four corners of expression 'general average loss', in my opinion the learned Court below erred in law in taking the view that the suit was covered by Entry-29 of the Schedule and in holding that the suit was not maintainable in small Causes Court and thereby illegally refused to exercise the jurisdiction vested to try the suit on merits. The order impugned, as such has to be and is set aside. It is held that the suit for recovery of the definite quantum, namely price of the goods that have been lost and the value of the claim being less than Rs. 25,000/-, the suit was rightly filed in the Small Cause Courts. The Revision Petition is allowed. The order of the Court below is set aside and the Court below is directed to decide the suit on merits. --- *** --- .