- (1.) THIS appeal, at the instance of the appellants, is directed against the judgment and decree dated 12. 1. 1995 and 28. 1. 1995 respectively passed in Money Suit No. 45/91. whereby and whereunder the learned subordinate Judge 5th, Ranchi dismissed the suit of the plaintiff-appellant.
(2.) CASE of the plaintiff-appellant in brief is that plaintiff- appellant is the insurer of M/s. Usha Martine Industries Ltd. , which is respondent no. 2 in this appeal. The plaintiff No. 2 is the respondent No. 2 in this appeal and defendant is respondent No. 1. Plaintiff No. 2 is the manufacturer of steel wires including copper coated wires under Policy no. 2357100217. The copper coated steel wire of plaintiff No. 2 was insured by plaintiff No. 1-appellant. On 25. 6. 1988 one consignment consisting of 527 coils weighing 12608 MT of copper coated wires were entrusted to the defendant-respondent No. 1 for transportation from tati Silway, Ranchi to M/s. Arkey Industries, Calcutta under consignment No. RU 235, dated 25. 6. 1988 for safe and timely delivery at the destination place. The consignment of goods booked under challan No. 0411132388 by truck No. 6486 was fully packed with the packing materials and the value of consignment of goods was Rs. 2,77,044/-, which was duly insured with plaintiff No. 1-appellant under policy No. 2357100217. The allegation is that defendant-respondent no. 1 transported the consignment in such a careless and negligent manner that consignment was damaged by the rain water and all the packed materials reached the destination in a wet condition, Since the consignment was not of any use for the building purposes, the consignee did not accept the same. Thereafter plaintiff-respondent No. 2 raised a claim with defendant-respondent No. 1 by letter dated 1. 7. 1988 stating that the consignment reached the destination in a damaged condition for which the defendant- respondent No. 1 was responsible and by another letter dated 25. 7. 1988 the plaintiff-respondent No. 2 called upon the defendant- respondent No. 1 to issue a damage certificate and the defendant-respondent No. 1 issued a damaged certificate dated 18. 7. 1988 confirming the damage of consignment during transportation. It is further alleged that since the consignment was insured with the plaintiff No. 1-appellant and after proper inspection and survey by the surveyor of defendant-respondent no. 1 it was found that the goods were not useful and, therefore, the plaintiff-respondent No. 2 made a claim of Rs. 2,77,044/- being the total amount of loss and damages caused due to negligence of the defendant-respondent No. 1 and its employees and requested him to settle the matter but the defendant-respondent No. 1 always evaded to do so.
(3.) DEFENDANT-RESPONDENT No. 1 appeared in the suit and filed written statement and asserted that consignment of goods was transported at the owner's risk and there was no negligence on the part of the defendant-respondent No. 1 or his employees in transportation of consignment of goods. The goods were carried out from Tati Silway to calcutta and on the same day there was torrential rain and the goods were not properly packed and the plaintiff-respondent No. 2 did not take care to cover the goods to protect the goods from being damaged. Ultimately the plaintiff No. 1-appellant had to make payment to the plaintiff-respondent No. 2.;