- (1.) The defendants jointly carry on the business of transport services by rivers. The steamer "pagan" belongs to respondent No. 2. The flat "nurjehan" belongs to respondent No. 1. The charge against them is that the steamer Pagan while towing Nurjehan Negligently dashed against two loaded country boats and sank them, with the result that the two boats and all the goods on board and the entire cargo were lost. The boats belonged to jalim Mallah and were hired by Rameswar aggarwalla for the carriage of mustard seeds, ghee and jute from Ghilamara to Dibrugarh. Rameshwar instituted money Suit No. 6 of 1951 for recovery of damages for loss of the cargo. Jalim instituted Money Suit No. 34 of 1952 for damages for loss of his boats and articles. The subordinate Judge, Upper Assam districts, Dibrugarh, decreed the two suits. The Assam High Court set aside the decrees and dismissed the suits. The present appeals have been filed by the plaintiffs after obtaining certificates under art. 133 of the Constitution.
(2.) The plaintiffs' case is fully established by the evidence adduced by them. On the night of the 6th and 7th August, 1950 the two country boats were moored at anchor alongside the northern bank of the river Brahmaputra at a place midway between koseck Miri Gaon and Schokichuk miri Gaon and were manned by a crew of 10 boatmen including Jalim Mallah. The steamer Pagan was plying in the river. The empty flat Nurjehan was tied to the vessel on its port side. The boatmen saw the steamer at a distance of half a mile approaching the river bank where the boats were moored. When the steamer was at a distance of about 300 yards the boatmen raised warning shouts and lighted torches. Nevertheless the steamer headed towards the river bank and its tow Nurjehan violently struck the rear boat and then the front boat and sank both of them. All boatmen fell into the water. Eight of them swam to the bank. The other two boatmen were carried in one of the broken boats and could reach the bank after several hours. The entire cargo and all the articles of Jalim Mallah were lost and could not be salvaged. One of the boats was completely smashed and no trace of it could be found- the other broken boat was found overturned and silted up two days later at a spot about: a mile away down stream. Before the occurrence a motor launch on its way to Dibrugarh had been detained at a nearby place- owing to some engine trouble. The launch carried its owner Tarsing Miri, the driver bireswar Das and two other passengers, lambodar and Gerua. All the four saw the collision. Lambodar flashed his torch and read the word 'pagan' on the steamer. The four men in the motor launch left the spot the next morning. Jalim Mallah reached dibrugarh on the 8th August and reported. the matter to Bholanath son of Rameswar. On the same date he lodged the first information report (Ex. 9) with the officer-in-charge of the Dibrugarh Police Station. As he did not know the names of the occupants of the motor launch he went in search of them and found Bireswar at Kherghat in dibrugarh on the 9th August. He then contacted J. K. Chaudhury, the Sub-Inspector of Police, Dibrugarh. On the same date jalim Mallah, Bholanath, Bireswar and J. K. Chaudhury went in the motor launch to the place of the occurrence and found the broken boat. Later J. K. Chaudhury made investigations and examined Gura Meah, the master of Pagan, and other defendants. On, auguat 16, 1950 he submitted his report (Ex. 10) charging Gura Meah and others under section 60 of the Indian Steam-Vessels A of, 1917 for wilful failure to give notice of the loss to the officer-in-charge of the nearest police station. Gura Meah was convicted. of the offence by the Additional District magistrate. The conviction was confirmed by the Assam High Court. On September 1, 1950 the plaintiffs' sent demand notices. (Exs. 4 and 29) to the respondents claiming the damages for the loss. The respondents did not send any reply.
(3.) At the trial Jalim Mallah proved the plaintiffs' case to the hilt. His testimony is natural and convincing. He is corroborated by Ex. 9 and the demand notices. Bireswar and Tarsing gave supporting evidence. They were disinterested witnesses and were not shaken in cross-examination. J. K. Chaudhary proved Exs. 9 and 10. Gera died before the trial. Lambodar was lying ill with sore feet at an inaccessible village in the interior of North Lakhimpur town and could not be called at the trial.;