RIVER STEAM NAVIGATION CO. LTD. AND ANR. Vs. MILAPCHAND HIRALAL FIRM
LAWS(GAU)-1958-3-3
HIGH COURT OF GAUHATI
Decided on March 03,1958

River Steam Navigation Co. Ltd. And Anr. Appellant
VERSUS
Milapchand Hiralal Firm Respondents


Referred Judgements :-

SPRINGER V. GREAT WESTERN RAILWAY CO. [REFERRED TO]
SIMS AND CO. V. MIDLAND RAILWAY CO. [REFERRED TO]
RIVER STEAM NAVIGATION CO. LTD. V. SYAM SUNDER TEA CO. LTD. [REFERRED TO]





JUDGEMENT

G. Mehrotra, J. - (1.)THIS is Defendants' appeal arising out of a suit for recovery of Rs. 11720/ - as damages. The Plaintiff is a duly registered firm under the Indian Partnership Act, carrying on business in cloth, yarn and bidis, both in Calcutta & at Nowgong, Assam. It is the solo agent for the sale and distribution of Monkeyboy brand bidis, manufactured and supplied by Messrs. C.J. Patel and Co. of 3 Rupchand Street of Calcutta.
(2.)200 baskets of Monkeyboy brand bidis were purchased from the aforesaid firm by the Plaintiff and booked from Jagannathghat to Silghat Steamerghat under invoices Nos. 371 and 372 dated 3 -2 -1948; each of the two consignments contained 100 baskets of bidis. They were made over to the Defendants -Appellants R.S.N. Co. Ltd. and I.G.N. Co. Ltd. for carriage against the freight. When the consignments arrived at Silghat, it was found that there was a shortage of 40 baskets of bidis under the invoice No. 371 and 27 baskets under the invoice No. 372.
On 24 -3 -1948, the Plaintiff took open delivery of the said bidi baskets, having duly endorsed the fact of the shortage. In spite of the repeated demands, the delivery of the short baskets was not given to the Plaintiff nor the value was paid. On these facts, it was alleged that the baskets appeared to have been lost or tampered with in transit or pilfered with due to the wilful misconduct of the servants of the Defendants' Steamer Co.

The demand notice was given to the Defendants claiming Rs. 10,720/ -, the price of the lost goods with Rs. 1000/ - as compensation and the suit was thereupon filed for the aforesaid amount. A joint written statement was filed by both the Defendants and it was denied that the Plaintiff's firm was a registered one. The booking of 200 baskets of bidis in two consignments, each containing 100 baskets for carriage to Silghat as per S.S. Mingin owned by Defendant No. 2 was admitted.

The fact of short delivery is also admitted but the main defence taken up was that S.S. Mingin carrying the consignments met with an accident on the way in the river with the result that 67 baskets out of the said consignments were found damaged and the contents were destroyed as per medical advice.

The detail of the accident was noted in the protest and a copy of which was duly sent to the Plaintiff. That the loss was due to the negligence of the Defendants' servants was denied and it was asserted that the damage was caused due to accident and the goods were destroyed on medical advice and that they took all reasonable care to protect the goods; as such they were exonerated from the liability. The amount of damage claimed was also denied.

The trial court decreed the suit on the finding that the Defendants failed to prove satisfactorily the cause of the accident and as the onus was on the Defendants to establish that there was no negligence on the part of their servants in the accident, the Defendants were not protected and were liable to pay the damages. It was also held by the court below that it was not established by the Defendant that the goods were destroyed under proper medical advice. As regards the amount of damages, the finding is that the Plaintiffs were entitled to the entire price claimed. The amount of compensation claimed was however reduced to Rs. 280/ - and thus the suit was decreed for a round sum of Rs. 11,000/ -.

(3.)IN appeal, the points urged by the Appellants before the court below have been reiterated. It is asserted that the Defendants have fully discharged the burden and have established that there was no negligence on their part and the damage was caused to the bidis due to accident. It is also to be mentioned that the trial court has held that the document alleged to be a protest was not admissible in evidence.
It is not disputed that the burden is not on the Plaintiff to establish that the loss, damage or non -delivery was due to the negligence or criminal act on the part of the Defendants' servants. The burden lies on the carrier to establish the absence of negligence. In the absence of any proof by the carrier, it will be liable to male good the loss.



Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.