BASANTI BASTRALAYA Vs. RIVER STEAM NAVIGATION CO LTD

JUDGEMENT

(1.) This is a suit filed in August 1968 for recovery of damages of Rs. 29,333.42 for non-delivery of goods by the defendants, a decree for the said sum against the defendants in favour of the plaintiff or an enquiry into the damages and decree for the sum found due to the plaintiff against the defendants, interest and costs etc.

(2.) The defendant No. 1 was a common carrier and used to carry goods by inland navigation for reward. The defendant No. 1 received 4 bales of Mill made cotton cloth weighing 763 kilograms on 13-8-65, 4 bales of Mill made cotton cloth weighing 5 quintals and 98 kilograms on 14-8-65 and one bale of Mill made cotton cloth on 28-8-65 weighing one quintal 38 kilograms from the plaintiff on board the vessel 'Perim' for carriage to Silchar in Assam and issued invoices No. 1529R Rt. No. 21, No. 1587 R.Rt. No. 14 and 2091 R.Rt. No. 21 and the forwarding notes Nos. 782 dated 13-8-65, 676 dated 14-8-65 and 445 dated 28-8-65 in respect of the same goods and agreed to deliver the goods to the plaintiff on order. At all material times, the plaintiff was and still is the owner of the said goods. It is alleged in the plaint that the defendant No. 1 in breach of its duty as a common carrier failed and neglected to deliver the said goods to the plaintiff at the destination. The value of the goods was Rs. 24,858/83 p. The defendant No. 1 is liable to compensate the plaintiff in respect of the said loss or damages suffered by the plaintiff. Notice under S.10 of the Carriers Act was duly served on the defendant No. 1 in time. The said goods were insured against risk with the original defendant No. 2 under three different Marine Insurance Policies, all dated 13-9-65. Due notice of non-delivery of the said goods was served on the original defendant No. 2 in respect of the aforesaid three consignments in time. The defendant No. 2 is liable to pay the value of the said goods to the plaintiff under the said three policies for total loss of the goods suffered by the plaintiff. The defendant No. 3 was added as a party defendant on the allegation that it had been authorised by the Union of India to settle the claims of the parties whose properties had been detained by the enemy country. On or about 3-6-68, the plaintiff caused a notice to be served under S.80 of the Code of Civil Procedure on the defendant No. 3 claiming the aforesaid sums as the value of the goods. By an order dated 3-5-1967, passed prior to the institution of the present suit, the defendant No. 1 was amalgamated with the defendant No. 1A under a scheme whereby the defendant No. 1A took upon itself all the assets and liabilities of the defendant No. 1 including its liability to the plaintiff in respect of the said loss. By a letter dated 15-5-80, the plaintiff was informed that the business of the original defendant No. 2 had been taken over by the defendant No. 2A along with all its assets and liabilities after the nationalisation of its General insurance business and as such the defendant No. 2A would pay the liability, if any, of the defendant No. 2 to the plaintiff under the said three policies. Under the circumstances, the plaint had to be amended four times by four orders dated 6-6-72, 1-8-80, 13-8-81 and 10-8-82 to bring all the parties to the suit on record. According to the plaintiff, in spite of demands, the defendants in this suit failed and neglected to pay to the plaintiff the said sum of Rs. 24,858.83 along with interest thereon from 13-8-66 to 12-8-1968 or any portion thereof.

(3.) During hearing, the defendants Nos. 1 and 1A, 2A and 3 appeared through their respective counsel but the defendant No. 3 did not contest the suit nor the plaintiff proved its claims against the defendant No. 3. The other appearing defendants contested the suit.