S.C.Ghose, C.J. - (1.) This appeal is derected against a judgment and decree passed by Ramendra Mohan Datta, J. on January 29, 1968. By the said judgment and decree, the learned trial Judge directed payment of the sum of Rs. 16,500/- in favour of the respondents. The claim of the respondent No. 1 was for non-delivery of goods in the following circumstances: The respondent No. 2 was the insurer of the said goods and paid the respondent No. 1 the value of the goods insured against. The appellant, inter alia, carries on business under the name and style of the Great India Boating Company inter alia as carrier of goods and was at all material times and still is a common carrier of goods for hire by inland navigation. On or about October 3, 1961, the appellant as such common carrier received and accepted at Gauhati 125 bales of raw jute each bale weighing 150 kilograms the property of the respondent No, 1 on board the appellant's barge bearing No. A/5214 to be safely lowed by Steamer and securely carried to Calcutta and there to be delivered to the respondent No. 1 or order. By way and as evidence of the said contract of carriage, the appellant duly issued a bill of lading bearing No. R/7211 dated October 3, 1961. The said goods subsequently were ordered to be delivered to Shri Hanuman Jute Mills at Calcutta. At all material times, the respondent No. 1 was the owner of the said goods. In breach of its duties as such common carrier and/or in its duties as carrier for reward the appellant failed and neglected, safely or securely or at all, to carry the said goods or to deliver the same as directed. The appellant alleges that the said goods have been lost due to the sinking of the said barge at Khulna in East Pakistan. By reason of the premises the respondent No. 1 has been deprived of the said goods and suffered damages in the sura of Rs. 18,725/- being the value of the said goods. The appellant did not pay the value of the said goods and hence the suit was filed.
(2.) The case of the appellant in its written statement was that the goods were carried on basis of goods forwarding note and the bill of lading at owner's risk and expressly stipulated that the appellant will not be responsible for loss or damage to goods arising from Act of God, strandmgs, groundings, collision, snags or any accident or dangers of the rivers, canals, locks or navigation. No claim in respect of the said contract shall be valid unless in writing and delivered at the office of the defendant in Calcutta within 4 weeks from date of any default, loss or damages in respect of which such claim arises. The said forwarding note also provided that in the event of any of the terms of the forwarding note conflicting or appearing to conflict with the terms of any other agreement between the shippers and the service (that is the appellant), the terms of this forwarding note of such agreement shall prevail at the option of the service (that is the appellant). The appellant informed Shri Hanuman Jute Mills that the barge carrying the consignment of 125 bales met with an accident and sank near Khulna and that the consignment was a total loss. On 13th October, 1961, the respondent No. 1 made a claim with the respondent No. 2. On 2lst October, 1961, the respondent No. 1 sent a letter written by the appellant and addressed to Shri Hanuman Jute Mills to the respondent No. 1. The respondent No. 2 thereupon paid the full amount namely Rs. 18,725/- for which the said consignment was insured in favour of the respondent No. 1 and the respondent No. 1 on receipt of the said sum executed a letter of subrogation dated 22nd November, 1961 whereby the respondent No. 2 became iubrogated to all the rights and remedies in respect of the subject matter insured. It appears from the correspondence that on on about 22nd March, 1962 Shri Hanuman Jute Mills made a claim against the appellant for delivery of the said consignment and claim a sum of Rs. 17,330.65 p. at the rate of Rs. 92.43 p. per quintal as damages for nondelivery. On receipt of the said letter, the appellant informed Shri Hanuman Jute Mills that the barge carrying the said consignment of jute bales met with an accident and the consignment was a total loss as a result, thereof. The appellant further informed that all necessary documents were sent to the re- spondent No. 1, on 8th November, 1961. On 27th April, 1962 Shri Hanuman Jute Mills gave a further reminder to the appellant company and demanded payment. In reply the appellant on 28th April, 1962 requested Shri Hanuman Jute Mills to refer the matter to the shipper or the insurance company. Thereafter after exchange of letters by Solicitors, the suit was filed by the respondent No. 1 and the respondent 2 against the appellant. Various issues were raised and settled in the suit. The main contentions raised on behalf of the appellant were that the respondent No. 1 had no interest in the goods and the property in the goods had passed on to Shri Hanuman Jute Mills and as such the notice contemplated by the forwarding note or by the bill of lading by the owner of the goods not having been sent, the liability, if any, of the appellant was absolved. It is the common case of the parties that the respondent No. 1 was the owner of the goods when the same was despatched on board the barge bearing No. A/5214 in tow of ship M. V. Rampuria belonging to the appellant. On 3rd October, 1961 bill of lading was issued which shows that the respondent No. 1 consigned the goods to self or to its agent at Calcutta. The respondent No. 1 thereby retained the possession and reserved the right of disposal of the goods till the completion of the voyage. By reason of the premises, the burden of proving that the respondent No. 1 was not the owner of the goods is on the appellant. (See Section 110 of the Evidence Act. Sukul Brothers v. H. K. Kavrana, AIR 1958 Cal 730; Commrs. for the Port of Calcutta v. General Trading Co. Ltd.
(3.) On 3rd October, 1961 the respondent No. 1 entered into a contract with Messrs. Hanuman Jute Mill for sale of 89 bates of mid. 121 bales of Bot and 10 bales of B bottom quality of jute and the terms of payment of the said contract was 100% cash against document. The appellant contends that the respondent No. 1 under the said contract by shipment of 125 bales of jute and by the purported endorsement and delivery of the bill of lading transferred the property in the goods during transit to the said Shri Hanuman Jute Mills. The contentions of the appellant are not acceptable to us.;