BIJAYESH MUKHERJI, J. - (1.) THIS is a suit for recovery of Rs. 13,031.87 nP. only in the following circumstances: On April 20, 1960, or thereabouts, the plaintiff Snow White Food Product Company Limited (shortened hereafter, as far as possible, into 'Snow White') entrusted, in Cal -cutta, the third defendant Shree Hanuman Transport Company, a firm doing the business of 'a common carrier of goods for reward', with two consignments - - one containing 25 tins of S/c refined groundnut oil and the other containing 400 tins of S/c Balloon Brand Vegetable Pro -duct - - for carriage by road to self (Snow White) at Raiganj and Islampur respectively in the district of West Dinajpur. The Transport Company - - that is how I call the third defendant hereafter, as far as possible - -'received and accepted' the two consignments 'for reward' with a view to reaching them to their destination and to Snow White too, as desired. The contracts of carriage are evidensed by two consignment notes: one bearing the number A 1202 for despatch to Raiganj, and another bearing the number A 1203 for despatch to Islam -pur. Dated April 20, I960, both were issued by the Transport Company. At the trial, they have been marked exhibit B collectively. The Transport Company insured with the fourth defendant, the New Assurance Company Limited, the goods covered by the two consignment notes against loss and damage, among other things, during transit. But these insurances were had 'on account of and for the benefit of' Snow White. Leaving aside the permutation of 'alternatives' in which the plaint seems to revel, the pith of Snow White's case comes to this. The consignments were not delivered to Snow White - -the Raiganj one at Raiganj and the Islampur one at Islam -pur. Worse, the goods consigned so were wrongfully disposed of and converted 'to their own use' by alt the defendants - - the Transport Company (the third defendant), its two partners - - Sohanlal Bagla and Madanlal Poddar - - the first two defendants, and the Insurance Company (as I call now and hereafter, as far as possible, the fourth defendant). For the Raiganj consignment the claim is laid at Rupees 16,000, and (or the Islampur one at Rs. 931.87 nP., the total thus coming to Rs. 17,531.87 nP. To that is credited Rs. 4,500 paid by the Transport Com -pany and its two partners (the third, the first and the second defendants) in part satisfaction of Snow White's full claim. This leaves a residue of Rs. 13,031.87 nP., for recovery of which from all the four defendants, or for recovery of 'such other sum as may be found due' from the first three defendants, the instant action has been raised on April 20, 1961.
(2.) OF the four defendants, two only - - Sohanlal Bagla, the first one, and the Insurance Company, the fourth one - - resist the suit. The remaining two, Madanlal Poddar, the second one, and the Transport Company, the third one, do not. The common plea taken by the two contesting defendants - - Sohanlal and the Insurance Company - - is that the insurance money is payable by the Insurance Company to the Transport Company. The insurance company adds that the Transport Company had taken out an open policy, but not on account of, or for the benefit of, Snow White, and that there is no privity of contract between the two - - the Insurance Company and Snow White - - thus affording no scope for its liability in any manner to Snow White.
(3.) SOHANLAL denies that he had been a partner ever of the Transport Company of which, he admits, he was a mere assistant. He admits too the two consignments having been made over to the Transport Company for despatch to Raiganj and Islampur (Aluabari Road). And he pleads an accident the lorry carrying the goods met with near Lalgola in the district of Murshidabad by falling into a ditch - - an accident which culminated in the driver of the lorry being killed and the tins (full of Snow White's goods) being damaged and leaky. The surveyor deputed by the Insurance Company, he concludes, sold the damaged goods.;