SUKUL BROS Vs. H K KAVARANA

JUDGEMENT

(1.) This appeal arises out of a suit in which the Plaintiff seeks to recover from the Defendant firm the sum of Rs. 12,220 as damages for breach of its duty as common carrier to deliver 45 bales of jute entrusted to it for carriage, alternatively as damages for conversion of the goods. By his declaration in the plaint the Plaintiff states that on the 29th of January 1952 he delivered to the Defendant 45 bales of jute for transport from the Calcutta Hydraulic Press Ghat at Cossipore to Howrah Jute Mills Ltd. and safe delivery thereof to Howrah Jute Mills Ltd. for reward and that the said 45 bales of jute were accepted by the Defendant for carriage and safe delivery as aforesaid and were duly loaded on the Defendant's vehicle No. MBL 4327. By its defence the Defendant denied that it was a common carrier. It also denied delivery and entrustment of the goods to it by the Plaintiff. The Defendant firm alleged that it only let out to the Plaintiff on hire the vehicle No. WBL 4327 and provided the Plaintiff with a driver, that the said vehicle and the driver thereof were under the full control, custody and supervision of the Plaintiff and that the 45 bales of jute were lost while the same were under the custody and control of the Plaintiff. It also pleaded absence of statutory notice required by Section 10 of the Carrier's Act. Upon these pleadings, issue was joined and the action was tried by his lordship Bose J. Evidence, both oral and documentary, was adduced on behalf of both parties. The learned trial Judge accepted the testimony of the Plaintiff's witnesses. He discarded the testimony of Kalap Nath Sukul, the partner of the Defendant firm, as unreliable.

(2.) The evidence adduced at the trial establishes the following facts. The Plaintiff is a carrier of goods and possesses 2 lorries. Messrs. Sinclair Murray and Company Ltd. who have a godown at the Calcutta Hydraulic Press have to send goods to their customers. Such goods are carried in their own lorries and also in other persons' lorries. Whenever they require other lorries they approach the Plaintiff who carries the goods in his own lorries and whenever necessary employs other lorries. The Plaintiff says that he is the sole transport agent of Sinclair Murray and Company Ltd. for the purposes of such carriage and that he is responsible to Sinclair Murray and Company Ltd. for the safe carriage of all goods carried by the Plaintiff or other carriers engaged by him. (Plaintiff-Questions 166, 174, 179-80, 369-70, Daroga Singh-Question 31-33.) The goods used to be taken out of the godown, of Sinclair Murray and Company Ltd. and loaded on the lorries by the coolies of Sinclair Murray and Company Ltd. and then stacked by the driver and the coolies attached to the lorries. A chalan addressed by Sinclair Murray and Company Ltd. to the consignee used to be given by their clerk to the driver of the lorry concerned. The driver on unloading the goods at the destination used to obtain a receipt for the goods on the chalan. The chalan thereafter used to be collected from the Defendant firm by the Plaintiff's employee (Daroga Singh-Questions 61-64; Dhirendra Prosad Dutta Gupta-Questions 14-15; Plaintiff- Question 504). On the 29th of January, 1952 the Plaintiff personally engaged the Defendant to carry jute from the Calcutta Hydraulic Press to the Howrah Jute Mills and instructed the Defendant to send the lorries to his principal's place at the Calcutta Hydraulic Press. The employment was oral and was on a promise to pay remuneration fixed on the basis of the bales to be carried (Plaintiff Questions 341-46). It appears that the Defendant used to obtain payment of the hire against bills made out in the name of and submitted to the Plaintiff. On the same day, the Defendant sent its lorries Nos. WBQ 927 and WBL 4327 to the Calcutta Hydraulic Press with drivers and coolies. The lorries were loaded with the goods as usual. One Ujagar Singh, an employee of the Defendant, supervised the loading. Dhirendra Prosad Dutta Gupta, a clerk of Sinclair Murray and Company Ltd., gave the usual chalans to the drivers and gave them instructions as to the destination (Daroga Singh-Questions 90, 102-03, 107-10; Dhirendra Prosad Dutt Gupta-Questions 22-24). The lorry No. 927 duly reached its destination and the driver duly delivered the goods. Matru Goala, the driver of lorry No. 4327, absconded with the lorry and with the 45 bales of jute loaded on it. The lorry was later recovered. The goods were not recovered and are now lost. By a letter, dated the 1st of February, 1950 Sinclair Murray and Company demanded from the Plaintiff payment of the sum of Rs. 12,220 being the value of the goods. The Plaintiff instituted the suit on the 4th of February 1952. Later, on the 21st of February 1952 the Plaintiff paid the sum of Rs. 12,220 to Sinclair Murray and Company

(3.) The learned trial Judge has found that goods were lost while they were in the custody and control of the Defendant and that the case of the Defendant that it left the lorry and the driver in charge of and under the control of the Plaintiff or his agent is untrue. He also found that the Defendant accepted the goods on the usual undertaking to carry the goods as common carrier. He also found that the Defendant is a common carrier. I agree with this finding.