BABURAO NANAJI Vs. RAGHUNATH NANAJI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff and it arises out or a judgment and decree passed by the learned District Judge in Appeal No. 144 of 1950 which arose out of a Judgment and decree passed in suit No. 185 of 1949 which was filed in the Court of the Joint Civil Judge, junior Division, at Chalisgaon.

(2.) THE facts of the case which have led up to the present litigation may shortly be stated. The plaintiff and the defendant are brothers. In 1931 when they were members of joint and undivided Hindu family, they started a motor bus service between Chalisgaon and Pilkhed. A partition took place between the two brothers in 1937 and as the result of it each brother, i. e. , the plaintiff and the defendant, got two motor buses as his share. After the partition, the plaintiff and the defendant each began to run his buses on alternate days. On 1-1-1941 the two brothers formed a Union and the name which was given to the Union was the Chalisgaon-Malegaon Motor Union. The affairs of the Union, however, did not run smoothly. Disputes arose very soon, with the result that the plaintiff filed Regular Civil Suit No. 71 of 1942, in which he asked for taking accounts of the Union. The suit ended in a compromise, and the compromise which was arrived at was that the plaintiff was to run his buses continuously for a period of 67 days commencing from 1-4-1942, i. e,, he was to run his buses till 7-6-1942 and that thereafter the plaintiff and the defendant each were to run their buses for two days at a time alternatively. It was agreed between the parties, as a result or the compromise, that the defendant Was to begin running his buses from 8-6-1942. According to the compromise, therefore, the defendant was to run his buses on the 8th and 9th June 1942; the plaintiff was to ply his buses on the 10th and 11th June 1942. The defendant was to ply his buses on the 12th and 13th June 1942 and so on.

(3.) FOR a period of five years or so thereafter, the matters went on smoothly. The plaintiff and the defendant were running their buses alternately for two days each at a time. On 19-6-1947, however, the trouble arose, and the trouble arose in this way. The defendant's bus No. BYP, 210 was plying. It happened to be checked on that day (19-6-1947) by an Inspector of the Motor Vehicles Department, it was found by the inspector that the defendant's bus was carrying an overload, in so far as two passengers were carried in excess of the prescribed limit of passengers, and it was also found that some passengers were travelling without tickets. The matter was reported by the Inspector to the Regional Transport authority. The said authority thereupon suspended the service of the Union from 15-4-1948 to 14-5-1948. An appeal was filed against that order to the Provincial Transport Authority. In appeal, the order of the Regional Transport Authority was set aside end the defendant was only warned. The plaintiff contends in the present case that during the above mentioned period of suspension of one month, he lost his 16 days upon which, he would have made the trips of his buses. According to him, on each one of those 16 days, he would have made a net profit of Rs. 30/ -. His contention in the suit, therefore is that on account of loss of trips of his buses during the period of 16 days, he suffered a loss of Rs, 480/ -. The trouble between the parties did not end there. The mishap recurred in the case of the same bus of the defendant on another occasion, and that was on 16-5-1948. On that day also, his bus was checked by two officers of the Motor Vehicles Department and it was found on that occasion also that two passengers were carried in excess of the prescribed limit. There were certain passengers travelling without tickets; the bus was running late by an hour and a half, and two passengers were occupying seats next to the seat of the driver. These irregularities were reported to the autho- rity concerned, and the Authority passed, an order directing suspension of the defendant's bus for three months with effect from 25-5-1048. An appeal was made against that order by the plaintiff and the defendant. In that appeal, the plaintiff engaged the services of Counsel Mr. Pardiwala. The Provincial Transport authority allowed the appeal and set aside the order of suspension on 31-7-1948. The plaintiff contends that during the period between 16-5-1948 and 25-5-1948 he had lost 4 days on which his buses would have made trips, that on each one of those four days, his buses would have plied six times, that in all, therefore, he would have made 24 trips, that on each trip he would have made a profit of Rs. 15/- and that in that manner, he sustained a loss of Rs. 360/--The plaintiff also contends that during the proceedings consequent upon the appeal which he and the defendant had filed against the order of suspension, of the bus service, he had also paid Rs. 80/- to pleader Mr. Rahalkar besides paying Rs. 500/- to Counsel Mr. Pardiwala. In this manner, the plaintiff contends that he sustained a net loss of Rs. 480/- plus Rs. 380/- plus Rs. 500/- plus Rs. 80/- in all aggregating to Rs. 1420/ -. To this he added some small items, making the total of his loss amount to Rs. 1430-13-0. He claimed that amount from the defendant in suit No. 185 of 1949. The learned trial Judge ordered the suit to be dismissed, and on appeal to the District Court the learned District Judge ordered the appeal to be dismissed. The plaintiff has come to this court in second appeal.