UNION OF INDIA Vs. HARILAL TALAKCHAND

JUDGEMENT

(1.) (Per J.M. Panchal, J.) 1. The judgment challenged in this appeal preferred under clause 15 of the Letters Patent is in favour of the plaintiff, now the respondent No.1, for Rs.10,428.06 Ps. together with proportionate costs of the suit with running interest at the rate of 6% per annum from the date of filing of the suit till the realisation thereof, and against the original defendants Nos.1 and 6, now the appellant and the respondent No.6 respectively. For the sake of convenience, we propose to refer to the parties with their original status in the suit.

(2.) The Plaintiff - Harilal Talakchand Shah is a resident of Bhavnagar and deals in cotton waste. He had contracted to purchase 160 quintals of 40-60 komber cotton waste at the rate of Rs.323.00 per quintal from the defendant No.5 - Mill Company which is situated at Morvi. The plaintiff wanted to transfer 70 bags of cotton waste worth Rs.10,500.00 from the factory of the defendant No.5 to his shop at Bhavnagar. Therefore, he entered into a contract with the defendant No.1 - Jugaldas Amritlal Shah for carriage of said 70 bags of cotton waste from Morvi to Bhavnagar, at the rate of Rs.3.50 Ps. per bag. It was agreed upon between the plaintiff and the defendant No.1 that the defendant No.1 would bring the goods by his public carrier bearing registration No. GTG 155. The plaintiff handed over a chit Ex.84 to the defendant No.1 whereby the plaintiff had requested the defendant No.5 Mill Company to deliver the goods to the bearer of the chit in truck bearing registration No.GTG 155. By the said chit the defendant No.5 was asked to give a chit showing the weight and number of bags delivered. Another chit Ex.85 written by the Munim of the plaintiff informing the Manager of the defendant No.5 that a draft for Rs.10,000.00 dated December 2, 1972 drawn on State Bank of Saurashtra, Bhavnagar had been sent which should be credited to the plaintiff's account and a stamped receipt should be sent, was also handed over to the defendant No.1. The plaintiff got the goods to be transported through truck bearing registration No. GTG 155 insured with Jupiter General Insurance Company Limited on December 6, 1972. The defendant No.1 was not in a position to bring the goods by his truck bearing registration No. GTG 155 as it had failed and, therefore, assigned the work of transporting the goods to the defendant No.2, M/s. Devdutt & Company, a transport company, Shihor, of which the defendants Nos.3 and 4 are partners, and handed over two chits written by the plaintiff to the defendant No.5 Mill Company, to the driver of the defendant No.2. The driver of the defendant No.2 went to Morvi on December 6, 1972 to bring the goods from the defendant No.5 with truck bearing registration No. GTC 2727 belonging to the defendant No.2. The defendant No.4 took delivery of the goods in question on production of the chits Exhibits 84 and 85 and loaded them in the truck bearing registration No. GTC 2727. For going from Morvi to Bhavnagar by road, one has to pass through Sanala - Virpur road at which juncture on the other side of the road a narrow gauge railway line runs parallel to the said road for about 1 Km. According to the driver of the truck bearing registration No. GTC 2727, the goods and the truck caught fire due to the sparks of burning coal that emitted from the Passenger Train No. 484 Dn. and perished. On receiving the information that the goods had perished in fire, the plaintiff lodged claim with Jupiter General Insurance Company Limited but the insurance company rejected the claim made by the plaintiff, by an intimation dated May 5, 1973, on the ground that the fire had taken place while the goods were being transported in truck bearing registration No. GTC 2727 and not in truck bearing registration No. GTG 155. According to the plaintiff, the defendant No.1 had committed breach of the contract by entrusting the work of transport to the defendants Nos.2 to 4 without his knowledge or consent and was liable for damage caused to the goods. It was also the case of the plaintiff that the defendants Nos. 1 to 4 were also liable as common carriers of the goods whereas the defendant No.5 was liable because in spite of specific instructions to send the goods in truck bearing registration No. GTG 155, the defendant No.5 had delivered the goods to the defendant No.4, a partner of the defendant No.2, and loaded them in truck bearing registration No. GTC 2727. It was also asserted by the plaintiff that the goods caught fire due to the sparks which came out of the running railway engine on account of the negligence and misconduct of the driver of the defendant No.6 as a result of which the defendant No.6 was also liable to satisfy his claim for damage to the goods. Under the circumstances, the plaintiff instituted Special Civil Suit No. 77 of 1973 in the Court of the learned Joint Civil Judge (S.D.)., Bhavnagar and prayed for a decree of Rs.11,379.16 Ps. against all the defendants.

(3.) The defendant No.1 in his written statement at Ex.50, inter alia, contended that no contract was entered into between him and the plaintiff for bringing the goods from the defendant No.5 Mill Company in his public carrier bearing registration No. GTG 155 and, therefore, the suit was liable to be dismissed against him. In the alternative, it was pleaded that he was not legally liable to satisfy the claim of the plaintiff because the fire had taken place due to negligence of driver of railway engine which in turn was responsible for sparks coming out of the running railway engine. The plea regarding suit being bad for misjoinder of parties and misjoinder of causes of action was also raised by the defendant No.1.