G.K.Mitter, J. - (1.) This is a suit for recovery of Rs. 4096/8/- for damage caused through fire to a consignment of jute despatched from the railway station Bhabta on the East Indian Railway to Cossipore Road Station. The consignor as well as the consignee was one Saraogi Trading Co., a firm carrying on business at 46, Strand Road, Calcutta, On the 5th January, 1950 the said firm delivered 84 bales of jute weighing 294 maunds to the Railway Administration at Bhabta under railway receipt No. 105356 dated the 5th January, 1950. The goods were despatched, under railway risk. The wagon containing the goods was attached to a goods train 743 Up, which was on its way to Kri-shnapur, at a distance of 140 miles from Calcutta. Bhabta is situate at a distance of 108 miles from Cossipore Road. It is the case of the railwey that smoke was noticed coming out from the doors of the wagon when it was about to get into Cossimbazar Station. The train was stopped at a distance of 100 yards outside the said station and it was then taken to the said station where the wagon containing the jute of Saraogi Trading Co. was disconnected and the bales of jute were unloaded from the said wagon and the fire extinguished by the appliance of water and cinders which lay on the platform.
(2.) Apparently Saraogi Trading Co. knew nothing about the fire and on going to take delivery of the jute at Cossipore Road Station they found a part of the goods in damaged condition. On the 17th February, 1950 the defendant issued what is known as a short certificate showing that some of the goods had been damaged. In the said certificate it is stated that damage was assessed at 30 per cent. Thereafter Saraogi Trading Co. took delivery of the goods and called upon the plaintiff with whom the goods had been insured to pay up Rs. 3894/- alleged to be 30 per cent of the total value of the consignment. The plaintiff paid the said sum of Rs. 3894/- to Saraogi Trading Co. on. or about the 20th April, 1950 and had a document executed in its favour described in this suit as a deed of subrogation. Thereafter the plaintiff purported to serve notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure and filed this suit on the 5th January, 1951 claiming Rs. 38947- together with interest on the said sum at 6 per cent up to the date of the suit, amounting to Rs. 202/8/-.
(3.) The defendant filed its written statement on the 20th March. 1951 contending thereby that reasonable care of the goods had been taken by the defendant, its servants and agents, and due diligence exercised in respect of the said consignment; that the fire which had taken place was purely accidental and/or was an inevitable accident and was unforeseen and could not have been avoided by taking any reasonable precaution. With regard to the certificate of damage the defendant states that it was issued without prejudice to its rights. The defendant has not admitted the value of the said goods or its liability to pay any sum of money to the plaintiff.;