TATIA, J. - (1.) THIS is an appeal against the Judgment dated 10. 7. 84 passed by learned Distt. Judge, Pali in civil original suit no. 20/80 by which the learned Distt. Judge decreed the suit of the plaintiff No. 1 against the defendant for Rs. 15,705. 84.
(2.) THE facts of the case are that plaintiffs M/s. United India Insurance Company Limited and M/s. Kankria Fabrix filed the suit against the defendant-appellant M/s. East india Transport Agency for Rs. 16540. 84 alleging that plaintiff no. 1 is a Government company and plaintiff No. 2 is a registered partnership firm having its office at Pali. THE appellant-defendant is the firm working in the business of transport of goods. THE plaintiff No. 2 booked certain goods with the appellant-defendant to be transported to Mujaffarpur and for that purpose, goods were delivered at Branch Office, Pali of the appellant-defendant for which receipt No. PL 4537/1, PL 4539/1, PL 4542/1, PL 4543/1 dated 22. 7. 77 and receipt no. PL 4558/1 to PL 4567/1 dated 23. 7. 77. THE above goods received at destination not in proper condition, but it was complete wet. THE appellant-defendant issued a certificate of loss of goods dated 7. 8. 77 and in this certificate admitted the loss to the goods. It is alleged in the plaint that above loss was caused due to fault of the employees of the defendants and defendant's agent. It was alleged that defendant's employees, agents and drivers are responsible for breach of contract, therefore, they are liable for the damages of Rs. 16540. 84. It is alleged in the plaint that due to above loss, claim No. 9/671/76-77 dated 10. 8. 77 was submitted to the defendant by the plaintiff No. 2, but defendant failed to make payment. Since there was insurance of the goods with plaintiff No. 1 for transit loss, therefore, plaintiff No. 2 submitted claim with plaintiff No. 1. The plaintiff no. 1 paid the above amount of Rs. 16540. 84 to the plaintiff No. 2. The document of subroggation was executed between the parties and plaintiff No. 2 assigned his right to recover the amount in favour of plaintiff No. 1. According to plaintiff, plaintiff No. 1 is entitled to recover the above amount from the transporters. In addition and in alternative, it was also pleaded in the plaint that both the plaintiff are jointly and severally entitled to relief. The appellant-defendant submitted written statement and stated that plaintiffs are required to prove the goods which were booked were. It was denied that there was any fault of any of the employees of appellant-defendant or driver. It was further submitted that goods were booked at the onwer's risk and, therefore, appellant-defendant is not liable for payment. It was submitted in the written statement that plaintiff No. 1 and appellant-defendant had no privity of contract and, therefore, plaintiff No. 1 cannot maintain the suit against the defendant. The trial court framed as many as 11 issues. The issues framed by the trial court are not properly framed and few issues are on question of facts which are not in dispute like issue No. 2 with respect to sending the goods through appellant-defendant by handing it over at pali to be sent at Mujaffarpur and with respect to receiving of goods in damaged condition. The issue No. 4 was also wrongly framed putting burden upon the defendant- appellant instead of putting burden upon the plaintiffs to prove his case with respect to right to recover the amount. In sum and substance, the dispute between the plaintiff and appellant is with respect to the fact' that plaintiff No. 2 handed over some goods to the appellant-defendant to be transported in the goods Carrier of the appellant-defendant. The above goods were insured with plaintiff No. 1 and the Insurance Policy was issued by the plaintiff No. 1 covering the risk of loss in transportation of the goods. This document was placed on record as Ex. 17. It was alleged by plaintiffs that because of negligence of employees and the driver of defendant-appellant, above goods were damaged and when appellant-defendant did not pay the amount cost of the goods to the plaintiff No. 2, the plaintiff No. 1 has to make payment to the plaintiff No. 2 because the goods were insured with plaintiff No. 1. Therefore, after getting document from plaintiff No. 2 to entitle the plaintiff No. 1 to recover the amount from appellant-defendant, the plaintiffs filed the suit for recovery of above amount. The appellate-defendant denied the right to recover the amount. The trial court since decreed the suit, therefore, appellant- defendant challenged the judgment and decree of the trial Court. The learned counsel for the appellant-defendant vehemently submitted that judgment in the eye of law as trial court has not properly framed the issues and also has not considered the issues which were framed by the trial court; infant trial court committed serious illegality in deciding issue No. 3 and in part issue No. 4. According to learned counsel for the appellant- defendant, issue No. 4 has been decided on the basis of finding recorded o0n issue No. 3. The issue No. 3 is that whether consignment reached at the destination in damaged condition as it was wet and the certificate was issued by the appellant-defendant on 7. 8. 77 for the loss. While considering this issue, trial court looked into the evidence of DW-1 Mohammand and DW-2 Madan Chand Surana and observed that in view of statement of these witnesses, it is clear that after leaving Pali, truck tilted and fallen down. It was observed by the trial court that it was duty of appellant- defendant to deliver the goods at destination in proper condition and when certificate was issued by the appellant- defendant itself which Ex. 12 to 15, which have not been denied by appellant, then in view of above facts and circumstances of the case, issue No. 3 was decided against the appellant- defendant.
(3.) THE trial court ignored the important material fact that this was the burden upon the plaintiff to prove that there was a negligence of appellant-defendant's employees and drivers in handling the above goods for which no evidence has been produced by the plaintiffs. So far as the evidence of appellant-defendant is concerned, it is clear that witness of appellant-defendant DW- 4 Srigopal stated that he was in the above truck and when some buffaloes came infront of truck of appellant-defendant, he gave a turn to the vehicle but since there was loose soil, the truck tilted, but it did not fell down. In tilted condition, the witness Srigopal and Khalasi of truck came down and thereafter vehicle fallen down. THErefore, it is clear from the evidence that neither driver was running the vehicle with rash and negligent driving nor there was any negligence of the driver of vehicle by which the above accident took place. When animals came infront of vehicle, naturally driver had to take side and it cannot be presumed that he was award that there may be a loose soil. THE speed of vehicle can be easily assessed that at the place of accident, soil was loose. THE vehicle did not skid and turn down immediately. In the evidence of all the witnesses DW-1 to DW-3, nothing has come out that any person was injured or even the animals were injured. Not only this, even after tilting the vehicles, driver, Khalasi and witness DW-4 could come down without there having any injury, then there was no evidence available on record to show that there was any negligence of driver of appellant-defendant in driving the vehicle. So far as taking care of goods for transport is concerned, it is clear from the evidence of DW-1 Mohammad and DW-4 Srigopal that they have stated that goods were properly loaded in the truck and thereafter it was covered by polythene in anticipation that there may be rain. The goods were loaded in presence of PW - 4 Srigopal and DW-1 Mohammad, therefore, there was no negligence in loading the goods and taking reasonable care for transporting the goods by the appellant-defendant, therefore, these material facts were ignored by the trial court while deciding issue no. 3 and 4. Mere giving certificate of loss to the plaintiff No. 2 by the defendant itself, there is no sufficient ground for holding that appellant-defendant is liable because it discloses only fairness of appellant to admit that loss was suffered by plaintiff No. 2 but to recover the above amount from defendant. In addition to above, there are no material facts in the plaint itself and there is a mere bald allegation that plaintiffs are entitled for loss particularly since the plaintiff No. 1 has failed to give above amount of loss to plaintiff No. 2, therefore, plaintiff No. 1 is also entitled for above loss. In the evidence of plaintiffs also, nothing has come that how plaintiffs came to the conclusion that there was any negligence of driver of appellant-defendant. PW-1 Ghewar Chand Jain admitted that he was not present when truck fallen down and no other witness states that it was due to negligence of driver of appellant-defendant, therefore, finding on issue No. 4 deserves to be set aside and it is held on issue No. 3 that at the destination, goods sent by plaintiff No. 2 through appellant- defendant were received in damaged condition and appellant- diffident issued certificate for the loss, but it is held that there was no negligence of driver of plaintiff or employees or drivers of defendant's firm. ;