- (1.) This is an appeal by a firm, a carrier, and its partners the defendants, against the judgment and decree passed in favour of the plaintiff No.2 the insurer, in a suit for recovery of compensation and damages.
(2.) According to the plaint, at all material times the defendant No.1, the firm, used to carry on the business as Transport Contractor and used to carry and transport goods by road as such. The defendants Nos.2 to 6 had been the partners of the defendant No.1. A quantity of 125 tons (80 and 88 pieces) of electrolytic copper wire bars were entrusted and delivered to the defendants at K. G. and K. P. docks, Calcutta for transport to Tatanagar and the defendants agreed to carry the same for reward and to deliver them at destination. The goods were lifted by the defendants into lorries on May 11 and 18, 1961, but, the goods were not delivered at all at destination in breach of their obligation. The plaintiff No.1 hereinafter referred to as ?the company? was the owner of the said goods and suffered loss and damages assessed at Rs.61,178.24P. by the non-delivery of the goods as per details given in the schedule to the plaint, due to negligence or misconduct on the part of the defendants. Alternatively it was stated that the defendants wrongly converted the goods for their own use and benefit. The plaintiff No.2 hereinafter referred to as ?the insurer? was the insurer of the goods under the policies issued by it and it was also interested in the goods not delivered. The cause of action of the suit arose on the dates mentioned above when the goods were lifted at the docks within the jurisdiction of the Alipore Court and also at Tatanagar. The plaintiffs in the circumstances prayed for a decree of the said amount as damages suffered by them or alternatively for an enquiry into damages and a decree for the same.
(3.) The suit was contested by the defendants Nos.2 to 5 who filed a joint written statement contending that they carried business of commission agents, hiring lorries for transport and charging commission for such work. The contract in respect of the goods were inter alia under the conditions that the freight was accepted at the risk and responsibility of consignor, the owner of the lorry to be fully responsible for goods and that the complaint as to shortage or non-delivery of the gods was to be made within 21 days of the date of the consignment, after which no complaint would be accepted nor would any responsibility stand on the defendant firm. The entire goods of the company were covered by fourteen consignment notes and dispatched by fourteen lorries and out of these, twelve lorry-load of goods were duty delivered as destination but two lorry-load goods were not delivered. The defendants' liability was limited by the above conditions embodied in the consignment notes and the lorry owners as agent of the consignor were liable for the loss and the defendants were in no way responsible nor liable for damages. Further the Company did not complain about such non-delivery within twenty-one days of the consignment. The defendants also denied that the loss was due to their negligence or misconduct and no particulars in respect thereof were given in the plaint. The allegations about conversion were also denied and it was also stated that for the alleged loss of goods, criminal proceedings against some persons had started and some goods had been recovered and were given to the company for which no mention was made in the plaint. It was further alleged that the company had no locus standi to institute the suit, the suit was bad for mis-joinder and non-joinder of parties, the lorry owners were necessary parties and further the court had no jurisdiction to try the suit. It was submitted that in the premises the suit shold be dismissed. The defendant No. 6 subsequently filed a separate written statement adopting the said written statement.;