Decided on January 14,1983



Chittatosh Mookerjee, J. - (1.) This second appeal is at the instance of the plaintiffs in a suit for recovery of Rs. 7086.44 p. as damages from the defendant Nos. 1 and 2. The learned Additional Subordinate Judge, Balurghat and decreed the suit in favour of the plaintiff. The defendant No. 1's appeal was allowed by the learned Additional District Judge, West Dinajpore and the suit in question was dismissed.
(2.) the plaintiff's claim in the plaint was that they carried on business jointly under the trade name, Jaidurga Transport Company. The lower appellate court has found that the plaintiffs were members of an unregistered partnership firm. They were not the owners of the goods, which in pursuance of an alleged contract between the plaintiffs and the defendant No. 1 were made over, at Calcutta, for carriage by the defendant's truck and delivery at plaintiffs branch office at Raigunj. At the time of the delivery of the said consignment, 16 packages were not delivered on the ground that they were stolen from the truck of the defendant No. 1. Seven bales were found damaged by water. Both the trial Court and the lower appellate court have concurrently upheld the contention of the plaintiffs that the defendant No. 1 was a common carrier but the lower appellate court reversed the finding of the trial Court that the plaintiffs in their individual capacity had entered into the contract of carriage with the defendant No. 1 and, therefore, the plaintiff who were members of an unregistered firm had no locus standi to file the suit. The learned Additional District Judge, however, upheld the learned Subordinate Judge's finding that the plaintiffs had entered into with the defendant a contract for carriage of the goods in question and that out of the said consignment there was non-delivery of 16 packages and seven bales were delivered in damaged condition. The learned Additional District Judge, held that the plaintiffs were not entitled to any damages because they failed to prove the value of the undelivered packages and the quantum of loss of the damaged goods and the value thereof. In our view, the learned Additional District Judge rightly held that the plaintiffs as partners of an unregistered firm had brought the suit and, therefore, they were not entitled under Section 69 (2) of the Partnership Act to enforce any right arising from a contract between the said unregistered firm, on the one hand, and the defendant No. 1, on the other. The plaintiffs did not claim to be the owners of the goods in respect of which they had brought the suit for recovery of damages from the defendants. Their case was that they had a transport business and they carried goods of their customers from one place to another through their own trucks and also through the trucks of other carriers. Pursuant to a verbal contract, a truck belonging to the defendant No. 1 and driven by the defendant No. 2 had carried diverse goods under Challan No. 190 dated 19-4-71 from the plaintiff's Calcutta address to their branch office at Raigunj. The plain-tiffs pleaded that due to gross negligence and active misconduct of the defendants they had sustained loss as detailed in the schedule to the plaint The extent of damage was ascertained on the basis of payments made by the plaintiffs to their sundry customers who were owners of the loss and damaged goods and which had been entrusted by them to the plaintiffs for transport to the destination. Therefore, the plaintiffs not being owners of the goods in question were not entitled to sue the defendant No. 1, who was a common carrier for breach of the latter's duty under the Carriers Act.
(3.) The lower appellate court, however, has failed to consider that the owner of the goods which were either damaged or lost had made over them to the plaintiffs for carriage and the plaintiffs were bound to deliver them at their own risk to the said owners The plaintiffs on their own be-half had entered into contract with the defendant No. 1 for carriage of the said goods therefore, the plaintiffs had employed the defendant No. 1 on their own account We have already mentioned that the plain-tiffs had pleaded that they had entrusted the goods in question to the defendants for transport to the destination (vide paragraph 4 of the plaint). The concurrent finding by the two courts is that out of the said consignment the defendant had failed to deliver 16 packages and seven bales were delivered in damaged condition. Accordingly, the plaintiffs who were in the position of bailees were entitled to enforce the duty imposed by law upon the defendant No. 3 who was a common carrier and to sue the latter in tort for breach of their common law duty. S. R. Das Gupta and Bachawat, JJ., in Sukul Bros. v. H. K. Kavarana, AIR 1958 Cal 730, had left open the said point of law in view of their finding that the plaintiffs of the said suit had employed the defendant carrier on behalf of their principal and not on their own account (vide paragraphs 14 and 15 of the report).;

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