- (1.) These two appeals arise out of a judgment and decrees of affirmance. A consignment of 114 chests of tea was booked for transport from Gamirighat to T.T. Shed, Kidderpore through defendant Nos.1 and 2, the Steamer Companies under Steamer Receipt No. R/62 dated 22.6.57. The goods were delivered on 20.7.57 to the plaintiff No.1 the consignee, with damages mentioned in the schedule of the plaint of the suit referred and assessed at Rs.6,496/-. It appears that a sum of Rs.1,767.75 was realized by the sale of damaged teas held on 4.10.57. The amount of loss was thus Rs.4,728.25. This with excise duty of Rs.70.50 less such duty realized for Rs.24.25 resulted in net loss of Rs.4,774.50. which was assessed for damages. The plaintiff No.2 is the insurer of the goods while the defendant No.3 are Commissioners for the Port of Calcutta who carried the consignment from TT Shed to K. P. Docks. The plaintiffs alleged that the damages were due to misconduct or negligence on the part of the defendants independently or jointly. The plaintiff served due notices of claim as required and the suit was instituted on July 17, 1958 for a decree for Rs.4,774.50P. or an enquiry for damages and decree for such amount as may be found due on enquiry.
(2.) The suit was contested by the defendants by separate written statements. One written statement was filed on behalf of the defendant Nos.1 and 2 who denied all material allegations in the plaint and also denied that they had any liability in the matter, as under contract of carriage, the consignment was handed over to the defendant No.3 under clear receipt. The defendant No.3 filed a separate written statement stating that at the time of delivery was taken at TT Shed from Steamer Companies and loaded in Port Commissioners wagon, some chest were found broken and some other in water stained conditions. There were also some shortages in the contents of some chests. There was a further defence that the suit was barred by limitation under the Calcutta Port Act, 1890. It was further stated that the statement of claim was not filed within the six months' time allowed by the defendants for filing such claim from date of delivery of the consignment to the answering defendant.
(3.) On a trial on evidence, the learned Subordinate Judge held that the suit was not barred by limitation under Section 142 of the Calcutta Port Act as causing damage to the consignment in some undisclosed manner was certainly not an act which was done or purported or professed to e done in pursuance of the Calcutta Port Act. It was further held that there was no evidence to assess the extent of damage by breakage and separating the same for damages caused by water. Accordingly the liability should be shared by all the defendants over whose system the consignment in suit was carried. The suit was accordingly decreed against the defendants and the decree was drawn up as follows: - "It is ordered that the suit be decreed on contest with costs. The defendants do pay to the plaintiffs the sum of Rs.4,774.50P. and also do pay Rs.763.50P. the costs of the suit.";