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2003 DIGILAW 235 (GAU)

Rajmohan Das v. Charai Bahi Co-op Society Ltd.

2003-05-30

S.K.KAR

body2003
JUDGMENT S.K. Kar, J. 1. This first appeal is against the judgment and decree passed by learned District Judge, Nagaon, in Money Suit No. 1/1998. 2. I have heard learned lawyers appearing for the appellant as well as learned lawyers appearing for the respondents. Perused the evidence and materials on record vide LCR called for. 3. Briefly stated, the respondent / plaintiff Charai Bahi Co-operative Society Ltd., represented by Secretary Sri Chandra Saikia, on 7.8.1996, handed over 88 bags of rice, weighing 80 quintals to be carried by the appellant/defendant No. 1 from F.C.I. godown at Nagoan to Charaibahi in Morigaon district. The carrying charge was fixed at Rs. 2300 and the defendant No. 1 received the rice and in his attempt to carry the same engaged his truck No. AS-02-5821. Unfortunately the truck met with an accident as a result appellant/defendant No. 1 failed to deliver the rice to the destination as per the terms and condition of the contract. It was further pleaded that the accident took place due to rash and negligent driving of the truck. That 76 numbers of bags of the rice got totally damaged and the balance of 12 bags could only be delivered and hence the suit to recover damage of Rs. 57,070.32 paise with 18% interest per annum from the defendant No. 1 calculated on value of rice together with carrying charges and other charges. Defendant No. 2 is the insurer of the truck. 4. Both the defendant Nos. 1 and 2 of the suit contested the suit by filing separate written statements, and raising the usual legal pleas of want of cause of action, defect of parties, non-maintainability, bar of waiver, estoppel etc. and the allegations against them were all denied. 5. It was contended by respondent/defendant No. 2 that it cannot be fastened with any liability as the policy in question did not cover risk for the goods on transit and it is solely a matter between the plaintiff and the defendant No. 1 for which the respondent/plaintiff was not entitled to recover any thing from the respondent/defendant No. 2. 6. Appellant/defendant No. 1 challenged the authority of the plaintiff-society to institute the suit. It was contended that there was no contract for payment of compensation when the truck was hired for carrying the goods of the plaintiff/respondent. 6. Appellant/defendant No. 1 challenged the authority of the plaintiff-society to institute the suit. It was contended that there was no contract for payment of compensation when the truck was hired for carrying the goods of the plaintiff/respondent. That the plaintiff/respondent ought to have made a transit insurance policy against the loss and damage of the goods, during transit as is done in other cases when a truck is hired for purpose of carrying goods. That the truck in the present case was insured with the defendant No. 2 on the date of accident. That the amount claimed is without any basis but intended to gain illegally out of the accident and that there was no negligence in the driving of the vehicle. That registering a case (criminal) against the driver is not enough to prove rash and negligent driving etc. etc. 7. On these pleadings of the parties following issues were framed by the learned trial court : "(1) Whether there is any cause of action for the suit. (2) Whether the suit is maintainable in its present form. (3) Whether the suit is barred by limitation. (4) Whether the defendant No. 1 received, as a carrier, 88 bags of rice from the plaintiff at Nagaon and failed to deliver the same at the destination. (5) Whether the plaintiff sustained any loss due to negligence of the defendant No. 1, as a carrier, or of his agent or servant. (6) Whether the plaintiff is entitled to a decree as prayed for. (7) To what reliefs, if any, the parties are entitled?" 8. During the course of hearing plaintiff/respondent examined two witnesses, i.e., its Secretary Chandra Saikia (P.W.-1) and another person names Rafiqul Hussain Choudhury (P.W.-2) who is a Sub-Inspector of Police. Documentary evidence relied upon are the report of police, money receipt of Rs. 2300 as truck fare, the challan issued by District Manager, Food Corporation of India, Nagaon, certificate issued by Registrar of Co-operative Society, office copy of demand notice under Section10 of the Carriers Act addressed by Secretary of the plaintiff-society to defendant No. 1, postal receipt with A/D Card and certified copy of the F.I.R. in connection with case No. GR-1148/96 (of Nagaon P.S.). 9. No evidence either oral or documentary, (save and except by way of cross-examination of P.Ws. 1/2) was however, adduced from the appellant/defendant No. 1 nor from respondent/defendant No. 2. 10. 9. No evidence either oral or documentary, (save and except by way of cross-examination of P.Ws. 1/2) was however, adduced from the appellant/defendant No. 1 nor from respondent/defendant No. 2. 10. Learned trial court answered the issued framed in favour of respondent/plaintiff and decreed the suit party for Rs. 44,770.32 paise against appellant/defendant No. 1 with 18% interest with effect from 7.8.1996 till realisation of entire decretal amount. Hence the appeal. 11. A careful study of the pleadings of the rival parties will show that facts are mostly admitted in this case. It is not in dispute that the truck of defendant No. 1 (appellant) was hired for carrying bags of rice and that the truck was insured with insurer defendant No. 2 (respondent No. 2). 12. At the outset I find no specific ground has been taken in this appeal in order to challenge the findings recorded of these issues framed in the suit. It was urged in course of argument that respondent/ defendant No. 2 is liable to pay Rs. 6000 for damage to property as it was the insurer of the truck carrying the bags of rice. 13. Be that as it may, I find that in view of facts on memorandum of appeal and arguments placed before me, the following are the points for determination in the appeal - (a) Whether valid notice under Section 10 of the Carriers Act, 1865 was served before filing the suit. (b) Whether the respondent / plaintiff is entitled to claim damage under the particular facts and circumstances of the case, and if some what should be the quantum of it (these relate to issues 4/5/6 framed in the suit). 14. To reiterate it will be seen that admittedly no evidence of any type was adduced by the contesting defendants of the suit to substantiate the pleas taken in their respective pleadings. 15. Point No. (b) - Coming to the merit of the findings of the learned trial court, particularly findings of the pertinent issue which will decide the ultimate fate of the suit, i.e., issue No. 4, I find that there is lengthy discussions giving the reasons for the decisions arrived at. I have simply to make the repetition of the discussion to concur with the findings of the learned trial court. I have simply to make the repetition of the discussion to concur with the findings of the learned trial court. The memorandum of appeal could not mention any specific error or infirmity in the findings of the learned trial court. The findings have mentioned the non-delivery of the goods that were given to the custody of the carrier for carrying and it has been mentioned also that under Section 8/9 of the carriers Act, carrier has full liability for loss in transit irrespective of the question of negligence and carrier is legally bound to make good of the loss of property during transit. The accident has been duly proved by P.W.-2, police personnel, along with the corroborating documentary evidence of Exts.1 and Ext.7, the police report and the connected FIR. Therefore, evidence of P.W.-1 is fully corroborative to the pleadings given on the plaint and cross-examination portion of the evidence of P.W.-1 could bring nothing to shake his credit as a witness. P.W.-1 has categorically proved the plea of the plaintiff taken in the plaint that 88 bags of rice were handed over for carrying and there was an accident wherein there was a total loss of 76 bags and only recovery of 12 bags. It is already noted and may be highlighted that there was no evidence whatsoever to the contrary. The price of 12 bags has been adjusted against the challan mentioning total amount of Rs. 51,840 as total value of the rice and after deducting the price of 12 bags the balance of Rs. 44,770.32 paise is granted. Learned trial court however, rejected the plea of further expenses of Rs. 12,000 and odd and payment of truck fare of Rs. 2300 and decreed the suit only for Rs. 44,770.32 paise. I find no infirmity in the judgment and the decision arrived at. 16. The argument raised in course of appeal that an amount of Rs. 6000 is to be reimbursed by the insurer as third party risk coverage for loss of property is beyond the pleading in the written statement and cannot be recognised at this stage as per the law. There was no pleading that goods are insured with defendant No. 2, rather it was brought into evidence by cross-examination of P.W.-1 by the contesting appellant/defendant No. 1 that goods were not insured with any insurance company. 17. There was no pleading that goods are insured with defendant No. 2, rather it was brought into evidence by cross-examination of P.W.-1 by the contesting appellant/defendant No. 1 that goods were not insured with any insurance company. 17. Point No. (a) - P.W.-1 proved the service of notice under Section 10 of Carriers Act, ext. 6 and ext. 6 was admitted in evidence without any objection. There is absolutely no challenge to this statement of fact given by P.W.-1 in course of his cross-examination. The objection is thus unwarranted and misconceived. 18. In respect of legal issues 1, 2 and 3 the trial court has discussed the question with adequate and appropriate reasons and no point could be raised to differ with them. However, there is an inadvertent mistake in the findings in so far issue No. 3 is concerned. It was held that the suit is not barred by limitation and naturally issue should have been answered in negative instead of recording as affirmative. Cause of action has been cited on 7.8.1996 and 22.8.1996 for non-delivery of the goods booked for carriage and suit was filed on 28.11.1996. Article 10/11 of the Schedule attached to Limitation Act (36 of 1963) prescribes limitation of three (3) years to bring a suit against carrier for compensation for loss or injury to and non-delivery etc. of goods from the date of loss or injury or non-delivery, as the case may be. So, suit is within time. P.W.-1 has, by his oral evidence proved the entitlement of goods and nondelivery to show cause of action, and there is no evidence to the contrary and damage has been proved by oral evidence of P.W.-2. 19. Concluding, there is no merit in this appeal. The appeal would stand dismissed on contest with costs. Stay order, if any, would stand vacated. 20. Send back the LCR at once.