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2001 Supreme(Raj) 1125
Rajasthan High Court
Honble SUNIL KUMAR GARG, J.
State of Rajasthan - Appellant
Versus
Mehta Transport Company & Ors. - Respondents
S.B. Civil Second Appeal No. 125 of 1982
Decided On : October 11, 2001
Mahipal Bishnoi, for Appellant D.D. Thanvi, for Respondents
Headnote:Constitution of India, Art. 226 – Demurrage – Plaintiff respondent loaded the pipes of defendant- appellant in his truck – During transit tyre burst – Truck capsized and some pipes were damaged – Brought back the damaged pipes in the godown of the plaintiff – Held – Plaintiff is not entitled to obtain demurrage even if the goods did not reach the destination as they were broken pipes. (Paras 9 to 12)
Had there been a case that goods belonging to the defendant-appellant and carried by the plaintiff-respondent had been reached to the destination in the good condition and there the goods would not have been unloaded by the defendant-appellant, the question of demurrage to the plaintiff-respondent might have arisen. Here the simple case is that broken pipes were kept at the godown of the plaintiff- respondent firm for which no question of paying demurrage should have arisen to the plaintiff respondent-firm. Hence, the findings of both the courts below on the point that the plaintiff respondent was entitled to claim demurrage from the defendant- appellant for keeping the damaged goods at its godown are liable to be set aside. (Para 9)
(2). It arises in the following circumstances:
That the plaintiff-respondent filed a suit against State of Rajasthan (defendant appellant) in the Court of Civil Judge Dungarpur on 22.4.76 stating that the plaintiff-respondent (M/s Mehta Transport Company) firm received truck load of pipes at Dungarpur from one Mansoor of the office of the Executive Engineer, PHED Division, Dungarpur, and the same was to be transported and consigned to the Assistant Engineer, PHED, Banswara and it was to be sent at the place Anjana. The pipes were loaded in a truck No. RJJ 451 and a freight receipt dated 10.7.72 was issued. The further case of the plaintiff-respondent is that on the way left front wheel tyre of the truck bursted and the truck capsized, as a result of which some of the pipes were damaged. The firm sent good pipes to Anjana and they were duly delivered there, but the pipes which were got damaged were at the directions of Mr. Ahmednoor, the store-keeper of the Office of Executive Engineer, PHED, Division Dungarpur transported back to Dungarpur and stacked at the godown of the plaintiff-respondent firm. It is further case of the plaintiff-respondent that the damaged pipes remained lying in the plaintiff-respondent firms godown and they were not removed by the defendant-appellant. It has been further averred in the plaint that there was condition of business that the goods lying in the plaintiff-respondent firms godown must be removed within a week or otherwise the demurrage will have to be paid at the rate of 25 paisa per quintal per day. The pipes in stack were found 24 quintals in weight and thus, the demurrage which was assessed by the plaintiff-respondent was Rs. 5580/- and for recovery of that amount the suit was filed by the plaintiff-respondent against the defendant-appellant.
(3). The defendant-appellant filed written statement on 15.7.77 factually admitting that the pipes in question were booked in the truck belonging to the plaintiff-respondent and it is also admitted that the said truck met with an accident as a result of which some of the pipes were damages, but the case of the defendant-appellant is that the accident took place because of negligent driving of the truck driver and for that the plaintiff- respondent firm was liable to pay demurrage and further more if some broken pipes remained in the godown of the respondent firm no question of paying demurrage arises as actual loss was occurred to the defendant-appellant as its pipes were damages. Hence the suit be dismissed.
(4). On the pleading of the parties, the learned Lower Court framed following issues on 10.10.77 :
1- D;k Jh xsch yky Hkh mDr Hkkxhnkjh QeZ okn dk Hkkxhnkj gS ;fn ,slk gS rks bldk okn ij izHkko\
& Mh
2- D;k okn i= dh pj.k la[;k 2¼v½ esa of.kZr ikbZil tu LokLF; vfHk;kfU=dh foHkkx dk;kZy; dh vksj ls Jh ealn }kjk oknh dks ckalokM+k LokLF; vfHk;kfU=dh esa lgk;d vfHk;Urk dh vkatuk LFkku ij igqpkus gsrq nh xbZ\
3- D;k ekxZ esa 40 ehy py pqdus ds ipkr vdLekr ck;ka vxz pØ dk ifo LQqfVr gks x;k ftlls Lda/k dk caf/kr j[kus okyh fuxM vf.kVwV xbZ\
& ih
4- D;k oknh ds MªkbZoj dh vlko/kkuh ls Vªd vkj ts ts 1451 ds myV tkus ls izfroknh dks mrjokn i= dh pj.k la[;k 2 vax ¼[k½ esa of.kZr uqdoku gqvk gS\
& Mh
5- D;k oknh vf/kkk{kh vfHk;Urk tu LokLF; vfHk;kfU=dh MWqaxjiwj ds laxzgkxkfjd Jh vgen uj ds funsZkkuqlkj iqu% MwWxjiqj {kfrxzzLr uyhdkvksa dks yk;k vkSj mUgsa oknh ds LVksj esa j[kk x;k ;fn ,slk gS rks bldk izHkko\
6- D;k oknh okn i= dh pj.k la[;k 5 ds vuqlkj 5580@& foyEc kqYd ds crkSj izfroknh ds ikus dk vf/kdkjh gS\
& ih
7- D;k oknh 312@& ifjogu kqYd izfroknh ls ikus dk vf/kdkjh
