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Gujarat High Court
Judgename :S.A.SHAH
Shah Jugaldas Amritlal - Appellant
Versus
Shah Harilal Talakchand - Respondent
First Appeal 1000 of 1975
Decided On : 11/27/1984
First Appeal – Civil Suit – Civil procedure Code, 1908 – Indian Railway Act – Section 47 – Damage caused to goods – Negligence – Suit was filed for decree against all the defendants – Respondent 1 is the original plaintiff who filed the aforesaid suit against defendants 1 to 6 (appellant and respondents 2 to 6) – Since the trial Court has passed the decree only against the appellant-defendant 1 – The main contentions on which the plaintiff has based his suit are: (1) He had entered into a contract of carriage with defendant 1, and as a contracting party defendant 1 is responsible for the damage, being a common carrier – (2) Defendant 2 is a Transport Company which had undertaken to carry the goods in question on behalf of defendant 1, and therefore defendant 2 as well as defendants 3 and 4, who are its partners, are liable for the damage caused to the plaintiff – (3) Defendant 5 Mill-company is also liable as the plaintiff had given specific instructions to transfer his goods in Carrier No. G. T. G. 155 and not in any other carrier, and in spite of that defendant 5 delivered the said goods to Carrier No. G. T. C. 2727, which is no delivery – (4) The incident in question is the result of gross and culpable negligence of defendant 6-Western Railway and, therefore, Union of India is also responsible for the damage to the plaintiff – Held, in this court opinion, two things can be attributed to this calamity, (1) the highway and the railway line are on the same level and parallel to each other, and therefore, the height of the chimney of such a narrow-guage engine and the height of the cotton bags loaded in the truck would be practically the same – and (2) the distance between the railway engine and the truck was hardly 3 to 4 feet and, therefore, there was every possibility of the cotton bags catching fire if sparks of burning coal escaped from the engine or its chimney – The learned trial Judge has not correlate the events properly and has thus arrived at an erroneous finding – In the result, the appeal as well as the cross-objections are partly allowed – The decree passed by the learned trial Judge against the appellant-defendant No. 1 is maintained, and a decree in the same terms be also passed against respondent-defendant 6 - Union of India, with proportionate costs all throughout – The appeal and cross-objections against respondents-defendants 2 to 5 are dismissed – However, looking to the peculiar facts and circumstances of the case, respondents-defendants 2 to 4 shall bear their own costs because they were the parties in custody of the goods in question when the same were damaged and were necessary to be joined as defendants – Respondent-defendant 5 was unnecessarily joined as a party to the suit by the plaintiff and, therefore, the plaintiff shall bear the costs of respondent-defendant 5 all throughout – Appeal partly allowed.
( 1 ) JUDGMENT:- The present appeal is filed by the appellant (original defendant 1) against whom a decree for Rs. 10,428. 06 paise has been passed on 31-7-1975 by the learned Joint Civil Judge, Senior Division, Bhavnagar, in Special Civil Suit No. 77 of 1973. Respondent 1 is the original plaintiff who filed the aforesaid suit against defendants 1 to 6 (appellant and respondents 2 to 6 ). Since the trial Court has passed the decree only against the appellant-defendant 1, respondent 1-plaintiff has filed Cross-objections praying for a decree against all the defendants. For the purpose of this appeal the parties will be hereinafter referred to as the plaintiff, and the defendants.
( 2 ) PLAINTIFF Harilal Talakchand Shah of Bhavnagar wanted to transfer his 70 bags of cotton waste worth about Rs. 10,500/- from the factory of defendant 5 Arunodaya Mills Ltd. , Morvi, to his shop at Bhavnagar. The plaintiff has alleged that on 2-12-1972 he entered into a contract with defendant 1 Jugaldas Amratlal Shah for carriage of said 70 bags of cotton-waste from Morvi to Bhavnagar at the rate of Rs. 3. 50 paise per bag. It was specifically agreed that defendant 1 will bring the said goods by his public carrier No. G. T. G. 155. It appears that on account of some difficulty, defendant 1 was not in a position to bring the said goods by the said truck from Morvi to Bhavnagar and, therefore, he assigned the said work to defendant 2 M/s. Devdutt and Co. , a Transport Company, Sihor, and handed-over two chits written by the plaintiff to defendant 5 Mill-company to give delivery of the contracted goods which were to be carried by Public Carrier G. T. G. 155. The plaintiff also sent with another chit Ex. 85 a draft for Rs. 10,000/-, being the price of the contracted goods.
( 3 ) DEFENDANT 4 Ramubhai Chhaganlal of Sihor is a partner of defendant 2-Company. He was formerly working with the plaintiff and had taken delivery of goods from the said Mill-company on previous occasions on behalf of the plaintiff. It appears that defendant 4 approached defendant 5 on-6-12-1972 for delivery of 70 bags belonging to the plaintiff and produced the aforesaid two chits Exs. 84 and 85 and the demand draft, and asked for delivery of the contracted goods.
( 4 ) AT this stage it will be worthwhile to consider the contents of Chits Exs. 84 and 85. Chit Ex. 84 is a bone of contention. Admittedly, the said chit has been written by the Munim of the plaintiff on the letter-head of the plaintiffs firm. By the said chit the plaintiff has requested defendant 5-Mill-Company to deliver the contracted goods to the bearer of the Chit in Truck No. G. T. G. 155, and requested to give him a chit showing the weight and number of bags delivered. Ex. 85 is another chit written by the Munim of the plaintiffs firm on behalf of the plaintiff informing the manager of defendant 5 that a draft for Rs. 10,000/- dt. 2-12-1972, drawn on State Bank of Saurashtra, Bhavnagar has been sent, which may be credited to the plaintiffs account, and a stamp receipt may be sent. This chit Ex. 85 does not mention the particulars regarding the truck and the name of the persons with whom the chit together with the draft had been sent. The said chits appear to have been delivered to the Manager of defendant 5-Mill-Company by defendant 4, who was admittedly working with the plaintiff formerly.
( 5 ) ON receipt of the aforesaid Chits, defendant 5 - Mill-Company, believing that defendant 4 must have brought Truck No. G. T. G. 155. delivered the said goods and also gave him a chit (bill) dt. 6-12-1972 addressed to the plaintiff. The said chit which is produced at Ex. 88, shows that the bearer of the chits sent by the plaintiff has been delivered the goods to be transported by truck No. G. T. G. 155.
( 6 ) AS the evidence on record discloses, the goods in question were purchased by the plaintiff by tender and he was responsible for bringing the said goods from the premises of defendant 5 to his premises.
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