SOUTH EASTERN CARRIERS P LTD Vs. MOHAMMAD SARVAR

JUDGEMENT

(1.) Appellant is the plaintiff. The appellant/plaintiff filed O.S. 1337/1980 on the file of the Court of the 1st Additional Judge, City Civil Court, Hyderabad for recovery of Rs.17,310/- with interest at 18% per annum from the defendants 1 to 3.

(2.) The learned trial Judge by his judgment and decree dt.3-11-1983 decreed the suit only against the defendants 1 and 2 and dismissed the suit as against the defendant No.3. The defendants 1 and 2 remained exparte before the trial Court. The judgment and decree of the trial Court in so far it decreed the suit as against the defendants 1 and 2 became final in the absence of any challenge by the defendant Nos. 1 and 2. Hence, this appeal is by the plaintiff against the judgment and decree, referred to above, passed by the trial Court only in so far it dismissed the suit as against the defendant No.3. The defendant No.3 is the respondent in this appeal.

(3.) The plaintiff's case is as follows:- The plaintiff is a company registered under the provisions of the Indian Companies Act and has its registered office at Calcutta. The plaintiff is a carrier. It is pleaded that the plaintiff in its own right and in its own account, on 28-12-1979 entrusted to the defendants 1 and 2,153 packages which was a full lorry load. The plaintiff claimed that the defendants 1 and 2 were thus employed by it in its own account and there was a special contract between the plaintiff and the defendants 1 and 2. Under the contract, it is claimed that, it was agreed that the lorry load consignments would be carried by the defendants from Hyderabad and delivered at Kamalapuram which is the destination and hire charges were fixed at Rs.650/-. In pursuance of the contract, the articles were entrusted to the defendants and a sum of Rs.350/- was paid as advance out of the agreed transportation charges of Rs.650 / -. The articles were accordingly loaded by the plaintiff's office at Diwan Devdi, Hyderabad in the presence of the representatives of the defendants in sound condition and lorry manifest and challan dt.28-12-1979 were prepared and the same were signed by the representative. The defendants carried the materials to Kamalapuram and at the time of delivery it was noticed that they short delivered two pipes, the value of which is Rs.15,000/-. It is claimed that at the time of unloading of the materials at Kamalapuram in the presence of the agent and representative of the defendants, a goods receipt was prepared and the same was signed by the representative of the defendants. The plaintiff also claimed that the driver of the vehicle, namely, the 2nd defendant is the authorized agent and representative of the defendants thereby meaning, the third defendant for all practical purposes. It is also claimed that the representative of the defendants assured the plaintiff that he would trace out the remaining two pipes and deliver them to the plaintiff but in spite of demand the two pipes were never delivered. The plaintiff ultimately caused service of lawyer's notice dt.10-4-1980 demanding the delivery of the two pipes or to pay the price of the pipes in a sum of Rs. 15,000/-. Since there was no response from the defendants, the suit was instituted.