BANSILAL MADANLAL Vs. EAST BENGAL RIVER STEAM SERVICE

JUDGEMENT

(1.) The Plaintiff is a partnership firm and the Defendant is a common carrier. The Plaintiff has claimed in this suit Rs. 54,574 as damages for non-delivery of 325 bales of jute weighing 1300 mds. entrusted to the Defendant on April 13, 1952, by Nimchand Sovachand, a joint Mitakshara Hindu family business of Dhubri, for carriage by the Defendant from Dhubri in its flat 'Mahajan' under a bill of lading dated April 13, 1952, and for delivery to the Plaintiff at Cossipur Ghat at Calcutta.

(2.) Material averments made in the plaint are that the Plaintiff is the owner of those goods and by a letter of May 2, 1952, the Defendant informed the Plaintiff that the said flat caught fire at Kanudi near Chandpur in East Pakistan and by its letter of May 14,1952, the Defendant further informed the Plaintiff that the goods in suit were destroyed or lost by the said fire and, without admitting the occurrence of the said fire including the alleged loss or destruction of those goods, the Plaintiff charged the Defendant and its servants and agents with, fraud, negligence, criminal act and misconduct for causing the said fire and for non-delivery of those goods arid gave particulars of those charges in the plaint reserving its right to furnish further particulars after the documents were disclosed by the Defendant and inspection of those documents were completed.

(3.) The Defendant, without admitting the Plaintiff's ownership of those goods, took a defence under a term of the said bill of lading exonerating the Defendant from any liability for loss or damage caused to those goods by an act of God or due to an accidental fire and admitting that those goods were entrusted by Nimchand Sovachand to the Defendant for the said carriage and delivery to the Plaintiff pleaded that from April 15 to 27, 1952, the said flat was inspected by the Pakistan Land Customs Officer at Chilmari and those officers locked up and sealed six gangways and two doors of the flat thereby completely sealed up the deck and the holds of that flat where the said goods were "stacked with the result the said seals under the law of Pakistan and/or the official orders had to remain intact till the flat reached the Indian water. On April. 30, the flat reached the village Kanudi in East Pakistan which is four miles from Chandpur, and on May 1, between 12-30 and 1 p.m. there was a high wind and it was suddenly discovered that the jute bales were on fire. The agents and servants of the Defendant in the flat and its other agents of Chandpur and Narayanganj took all steps that were necessary and possible on their part and they tried to extinguish the said fire even with the aid and assistance of the Pakistan Fire Service of Chandpur and the local assistance that were available to them, but in spite of their best efforts the lire could not be extinguished till May 2, 1952. The Defendant, after denying the charges of fraud, negligence, criminal act and misconduct of its agents and servants, pleaded that those goods were consumed by the said fire which was an accidental fire or was the result of an act of God or due to self-combustion of jute bales and denied its liability in the matter.