Case No: Civil Petition for Leave to Appeal No. 1198 of 2009
Judge: Md. Abdul Matin,
Court: Appellate Division ,,
Advocate: Mr. Aminul Hoque,,
Citation: VII ADC (2010) 413
Case Year: 2010
Appellant: Sadharan Bima Corporation
Respondent: LG Engineering Co. Ltd.
Delivery Date: 2010-1-6
Md. Tafazzul Islam, CJ.
Md. Abdul Matin, J.
ABM Khairul Haque, J.
Surendra Kumar Sinha, J.
Sadharan Bima Corporation and another
LG Engineering Co. Ltd and others
January 6, 2010.
The Case of the appellant is that the defendant Nos. 1 to 4 being the Sadharan Bima Corporation and its officers, contested the suit by filing written statement contending amongst others that the suit as framed and filed was not maintainable and it was barred by limitation and that the accident occurred due to rush driving of the truck and therefore the inland carrier is responsible and the damages as claimed is to be recovered from the carrier and accordingly advised the plaintiff.
Tafilur Rahman, Senior Advocate instructed by Chowdhury Md. Jahangir, Advocate-on-Record-For the Petitioners.
Md. Aminul Hoque, Senior Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For Respondent No.1.
Not represented-Respondent Nos.2-5.
Civil Petition for Leave to Appeal No. 1198 of 2009.
(From the judgment and decree dated 04.03.2009 passed by the High Court Division in F.A. No. 437 of 2001.)
Md. Abdul Matin J.
1. This petition for leave to appeal is directed against the judgment and decree dated 04.03.2009 passed by the High Court Division in F.A. No. 437 of 2001 dismissing the appeal with cost.
2. The facts, in short, are that the respondent No.1 filed a money suit being Money Suit No. 36 of 1993 in the Court of learned Subordinate Judge, 3rd Court, Dhaka impleading the petitioners as defendants. The said suit was decreed on contest against the petitioners and pro-forma respondent Nos. 3 and 4 and was dismissed ex-parte against respondent No. 2 and pro-forma respondent No. 5.
3. The respondent No.1 as plaintiff filed Money Suit No. 36 of 1993 contending amongst others that the plaintiff on behalf of the pro-forma defendant No. 6 Bangladesh Power Development Board imported equipment for installation of a 132/230 K.V. Sub-station under the financial assistance from Asian Development Bank and that the equipments were imported from Hamburg, Germany. The sub-station was to be installed at Haripur in the District-Narayangonj. In terms of the contract of the plaintiff with the pro-forma-defendant No.6 the equipments were required to be transported from Germany to the jobsite via Chittagong and accordingly the plaintiff purchased an open insurance policy as well as marine policy covering all risks on the equipments during the transportation of the equipments from Humburg, Germany to Chittagong through sea by ship and from Chittagong to that job-site at Haripur-Hasanabad through road on truck. The equipments arrived at Chittagong in container in 29 packages and while transporting the said 29- packages of equipments from Chittagong Port to the job site in 16 trucks, a truck containing one package containing a set of circuit breaker number as FAB No.3123969 and package was numbered as 550315, met an accident near Feni and the fact of said accident was communicated to all concern and as required a survey was held by James Finly representing the Lloyed Survey Company and according to the said surveyor the circuit breakers were damaged and neither the driver nor the truck was responsible for the accident. The survey report was sent to all concern and no objection was raised against the survey report. Thereafter the plaintiff by its letter dated 26.05.1999 submitted its loss claim for Tk.33, 98,244.05. The defendant No.1, Shadharan Bima Corporation, instead of making payment of the claimed amount in terms of the policy, advised the plaintiff to file a suit against the inland carrier for damages by its letter dated 08.05.1993 and faced with such situation the plaintiff was compelled to file the suit.
4. The case of the appellant is that the defendant Nos.1 to 4 being the Sadharan Bima Corporation and its officers, contested the suit by filing written statement contending amongst others that the suit as framed and filed was not maintainable and it was barred by limitation and that the accident occurred due to rush driving of the truck and therefore the inland carrier is responsible and the damages as claimed is to be recovered from the carrier and accordingly advised the plaintiff. The plaintiff failed to furnish the required documents called for by the defendant No. 4 and though the photograph of the damaged goods were taken but the photo of the track, carrying the goods were not taken and that the defendant Nos. 1 to 4 are not liable for the damages as claimed and that the defendant No.5 being the inland carrier is liable for the damages.
5. The case was heard by the learned Subordinate Judge (now Joint District Judge), 3rd Court, Dhaka and upon consideration of the material evidence on record the learned Subordinate Judge was pleased to decree the suit on contest against the defendant Nos.1 to 4 and was further pleased to dismiss the suit ex-parte against the defendant No.5 and pro-forma defendant No.6.
6. Being aggrieved by and dissatisfied with the judgment and decree dated 22.02.2001 passed by the learned Subordinate Judge (now Joint District Judge), 3rd Court, Dhaka in Money Suit No. 36 of 1993 the appellants filed First Appeal No.437 of 2001 in the High Court Division. The said appeal was heard by the High Court Division. Upon consideration of the materials on record the High Court Division dismissed the appeal with costs and upheld the judgment and decree passed by the learned Subordinate Judge, 3rd Court, Dhaka in Money Suit No.36 of 1993.
7. As against said judgment and order the petitioners have filed this petition for leave to appeal.
8. Heard Mr. Tafilur Rahman, the learned Counsel appearing for the petitioners and Mr. Md. Aminul Hoque, the learned Counsel appearing for the respondent No.1 and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
9. It appears that the High Court Division rightly upheld the judgment and decree of the courts below for Tk.33, 98,244.05. It further appears that Shadharan Bima Corporation admitted the loss suffered during the incident and tried to shift its liability on the defendant No.5.
10. In such view of the matter we find no illegality in the judgment of the High Court Division and accordingly the leave petition is dismissed with modification that the decree will be executed against defendant No. 1 only.