MOOLJEE SICKA AND CO Vs. SARDAR NARHARSINGH

JUDGEMENT

(1.) THIS is plaintiff's second appeal against a decree of the 2nd Additional District judge, Bilaspur, reversing the decree of the trial Court and dismissing the plaintiff's suit.

(2.) THE facts are that on 21-1-1949 at Bilaspur the plaintiff-firm through the manager delivered to the defendant No. 2, the driver of a truck of the defendant no. 1, one hundred and twenty bags of tendu leaves for transport to Gondia. It is admitted that Motiram (defendant No. 2) was authorised to enter into contracts on behalf of the defendant No. 1. It was agreed that the plaintiff would pay Rs. 3/8/per bag as the hire for the transport and Rs. 20/- were paid as advance on this account. The truck No. C. P. R. 578 of the defendant No. 1 left for Gondia loaded with 120 bags that very day, but the bags were never delivered at Gondia. At the rate of Rs. 16/- per bag, the bags of tendu leaves were worth Rs. 1920/- and a suit was filed by the plaintiff against the two defendants for Rs. 1940/-after a demand and after service of a notice.

(3.) THE suit proceeded ex parte against the defendant No. 2. Defendant No. 1, who is the respondent in this appeal, contested the suit mainly on the ground that near about 58 miles from Gondia, on 23-1-1949, the bags of tendu leaves caught fire from some sparks accidentally escaping from the coal-gas boiler of the truck and the leaves being dry and inflammable, the whole truck was ablaze and was destroyed along with the leaves by fire. The defendant No. 1 contended that it should be treated as vis major and that there was no negligence.