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Judgment
Mungeshwar Sahoo, J.—The plaintiff has filed this first appeal against the judgment and decree dated 20.5.1992 passed by Sub Judge-4th, Patna in Money Suit No. 242 of 1978/ 16 of 1983 dismissing the plaintiff''s money suit for realization of Rs. 94,103.17 paise.
The plaintiff filed aforesaid money suit against the defendants on the facts alleging that the plaintiff placed order for supply of cloth to the defendant Jiyajee Rao Cotton Mills Ltd. The cloths were sent through approved transporters. The defendant No. 2 was transporting the cloths who handed over the same to defendant No. 3 M/s Calcutta Express Transport Company, Patna. The plaintiff received the telegram and asked the manager of the plaintiff to take delivery of possession between 22.8.1975 to 4.9.1975 but nobody was found in the Godown. On 6.9.1975 it was found that 23 bales of cloths were drenched in the water. This damage was found due to the negligence of defendant Nos. 1 to 3 causing loss to the tune of Rs. 94,103.17 paise and therefore, the plaintiffs filed the suit for realization of the said amount.
The defendant No. 1 filed separate written statement. The defendant No. 2 filed separate written statement and likewise defendant No. 4 also filed separate written statement. According to the defendant No. 1 the property was insured and the billty was sent to the plaintiff in time through bank. The plaintiff took the billty and, therefore, the title of the goods passed to the plaintiff. The defendant was not liable for the damage after delivery of the goods to the plaintiff. The goods were transported through transport agency and if any liability is there the insurance company is liable to pay the same. The defendant No. 2 besides taking various legal pleas alleged that there was no privity of contract between the plaintiff and defendant No. 2. The plaintiff took the billty from the bank and received the goods from the godown of the defendant. According to the defendant No. 3 the defendant No. 2 asked him to carry the bales of cloths to Patna. Flood water entered in the town of Patna from 23.8.1975 and remained for 10-12 days. The godown of this defendant had submerged in the flood water. According to the defendant No. 4 the defendant never informed regarding any kind of damage sustained by the plaintiff and further that the cloths were not insured.
On the basis of the aforesaid pleadings of the parties the learned court below framed the following issues :
I- Is the suit, as framed, maintainable ?
II- Whether the plaintiff has any valid cause of action for the suit, if so, against whom ?
III- Whether the suit hit by law of limitation ?
IV- Whether the suit is barred by principle of estoppel ? V- Whether the suit is bad for misjoinder and non-joinder of parties ? VI- Whether the plaintiff is entitled to a decree, if so, against whom and to what extent and whether jointly or severally, against all ? VII- To what other relief or reliefs, the plaintiff is entitled ?
After trial the court below found that the insurance company was never contacted or informed. The damage was due to natural calamity and not caused on the part of the defendant and, therefore, dismissed the suit.
The learned senior counsel Mr. Pradhan appearing on behalf of the appellant submitted that there was unavoidable delay on the part of the defendants in informing the plaintiff about arrival of consignment and, therefore, the cloths were lying in the godown unattended. In such circumstances it was the negligence of the defendant and because of that negligence the cloths were damaged by flood water. Since 23 bales of cloths were damaged the plaintiff did not take delivery of the same and therefore, it was a case of failure on the part of the defendant to deliver 23 bales of cloths in exact condition in which the defendant No. 1 was required to deliver. According to the learned counsel it was a total loss as 23 bales were drenched in water and damaged due to fault of the defendant and it was not a natural calamity. Had the defendant timely informed the plaintiff there would not have any such damage. The plaintiffs have taken necessary steps for recovery of amount from insurance company but the learned court below failed to take into consideration the same. On these grounds the learned counsel submitted that the impugned judgment and decree are liable to be set aside.
Nobody appeared on behalf of the respondents when the appeal was heard.
In view of the above contentions of the learned counsel for the appellants the point arises for consideration in this appeal is, as to whether the plaintiff is entitled to recover the claimed amount from the defendants and whether the impugned judgment and decree are sustainable in the eye of law.
As stated above according to the plaintiff because of negligent on the part of the defendant i.e. because of delayed information the delivery of the cloths could not be taken. On the contrary, the defendants case is that the billty was taken by the plaintiff in time but did not take the delivery. In support of their respective cases the parties have adduced oral as well as documentary evidences. PW 1 has stated that he did not take delivery of 23 bales of cloths. He has submitted a report regarding non-taking of delivery which has been marked as Ext.-1. PW 2 has stated that he directed PW 1 to take delivery of the cloths. He admitted that the consignment reached Patna safely and the same was damaged in the godown of the carriers. DW 3 has stated that he informed the plaintiff. DW 1 and DW 3 both have stated that flood water in Patna came in the godown also. The DW 2 has also stated that water logged in the area from 23.8.1975 to 3.9.1975 and there was 3 to 4 feet water in the godown of the defendant.
Admittedly, the billty was obtained on 22.8.1975 but the according to the plaintiff the godown of the defendant could not be traced and when the godown was traced there was nobody to give delivery of the cloths. It is admitted fact that during this period there was flood in Patna, it is the specific case of the parties that the consignment reached Patna safely and it was unloaded in the godown. It is the case of the plaintiff that the godown could not be traced. So far this question is concerned if the godown could not be traced by the plaintiff how the defendant will be liable for the same. It is not the pleading and evidence of the plaintiff that the defendant did not give the proper location or address of the godown. It is also not the case that the defendant refused to give delivery of the cloths. In such circumstances, in my opinion, the learned court below has rightly held that the flood water came during that period and the same damaged the property. The question as to whether defendant is liable to pay for the same ? It is not the case of the plaintiff that there was negligence but on the contrary it is the case of the plaintiff that the godown could not be traced. Therefore, the negligence is on the part of the person who was tracing out of the godown of the defendant. There is no evidence to the effect that on which date and at what time the person visited the godown by informing the defendant but nobody was present for giving delivery of the cloths. Only baled statement has been made that when the godown was traced nobody was present there. There is no evidence to the effect that any information was given to the defendant that on what date the plaintiff will take delivery of possession. Therefore, the learned court below has rightly held that the damage caused to the cloths was because of natural calamity which was unavoidable and it was not within the control of the defendant. So far claim before insurance company is concerned admittedly although the plaintiff claimed that information was given to the insurance company but no such evidence has been produced regarding information. From perusal of Ext.-8 the insurance paper it appears that a condition has been mentioned that the damaged must be informed within 7 days from taking delivery of possession. There is no evidence by the plaintiff that in fact the information was given regarding damage within seven days. Admittedly, in this case the defendant refused to take delivery. The plaintiff did not take the delivery nor any loss was ascertained. From perusal of Ext.-A it appears that the consignment was booked from Gwaliar and according to the terms and conditions the consignor will not be liable to compensate in case of damage when the consignment is out of his godown. Admittedly, the consignment reached Patna in good condition. Because of the fact that the plaintiff could not trace godown the defendant No. 3 could not deliver same to the plaintiff and during this period flood came damaging the cloths.
In such circumstances, in my opinion, the learned court below has rightly found that because of the fact that it was natural calamity the property was damaged and not because of negligence or inaction of the defendant. Therefore, the finding of the learned trial court is upheld.
In the result, I find no merit in this first appeal and accordingly, it is dismissed. In the facts and circumstances of the case the parties shall bear their own costs.