JUDGMENT :

AMARINDER SINGH GREWAL, J. 

1. The plaintiff is the appellant before this Court, challenging the judgment and decree dated 23.10.1993 passed by the learned trial Court dismissing its suit for recovery of Rs.1,02,258/- and the judgment dated 08.04.1997 passed by the learned 1^st Appellate Court vide which the appeal preferred by it against the aforesaid judgment and decree passed by the learned trial Court, has also been dismissed.

2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial court

3. Succinctly, the facts of the case are that on 03.02.1989, M/s Raman Trading Company entrusted 65 bales of F-414 S/G cotton to the defendant– Truck Operators Union for transportation to Ahmedabad. The goods were loaded in truck bearing No. DIL-5499 under goods receipt No. 002308. The consignment was insured by M/s Raman Trading Company with the plaintiff under a marine insurance policy vide cover note No. 275915, Policy No. 2135060100083 dated 14.12.1988 and declaration No. 0035060028488 dated 03.02.1989. The value of the goods was Rs. 1,99,947.44. While the truck was at Jaitu, the bales of cotton caught fire and were badly damaged. According to the plaintiff, the damage caused was to the extent of goods worth Rs. 1,25,000/-. It is alleged that the transporter issued a certificate regarding the damage to the bales of cotton dated 05.02.1989. It is further stated that a sum of Rs. 97,500/- was paid by the plaintiff to M/s Raman Trading Company under the insurance policy. The plaintiff also claimed to have paid a sum of Rs. 4,758/- to the surveyor and on account of other charges. It was then alleged by the plaintiff that the goods caught fire due to the negligence and carelessness on the part of the truck driver and that the defendant, being the carrier, was responsible for the safe carriage of the goods. On account of such negligence, the defendant was stated to be liable to pay the aforesaid sum of Rs. 97,500/- paid to M/s Raman Trading Company and Rs. 4,758/- paid towards surveyor’s fee and other expenses. It was further averred that M/s Raman Trading Company had subrogated and transferred its rights and remedies in respect of the subject matter insured to the plaintiff, and therefore, the plaintiff claimed a right to recover the said amount from the defendant.

4. Upon issuance of summons, the defendant appeared through counsel and contested the suit by filing a written statement. The defendant denied that the plaintiff is a duly incorporated company or that the suit has been instituted through a duly authorised person. The defendant further denied any negligence on its part and specifically controverted the allegation that the goods caught fire due to carelessness of the truck driver or that the defendant is liable to pay the amount claimed. It was averred that the fire occurred due to vis major, caused by electric wires coming into contact with the truck while passing through a gate. It was further pleaded that the driver made sincere efforts to extinguish the fire by pouring water on the cotton bales and, when the fire could not be controlled he risked his life by opening the dala of the truck and pushing the bales to the ground, as a result of which only 8–9 bales fell down. Thereafter, the driver drove the truck to a nearby Gaushala where water was available in abundance and, with the help thereof, successfully extinguished the fire. The defendant also denied the alleged subrogation and transfer of rights in favour of the plaintiff by M/s Raman Trading Company and asserted that there was no privity of contract between the plaintiff and the defendant, thereby disentitling the plaintiff from maintaining the present suit. A preliminary objection was also raised that, as per a clause printed on the reverse of the consignment note, the defendant is not liable for any loss caused to the cotton bales on account of electricity, and consequently, the suit is not maintainable.

5. On the