P L D 1967 Dacca 426 (PLP)

HASAN, J.‑The Rivers Steam Navigation Co. Ltd. and India General Navigation and Railway Company Ltd., are the appellants before us. They were defendant No. 2 in the suit. The facts giving rise to this appeal are as follows: On 1st. June, 1957, the plaintiff, the District Board, Bakerganj purchased some iron rods at Chittagong and sent them through railway from Chittagong to Bakerganj. The goods reached Chandpur railway station on 4th June, 1957 and were handed over to the steamer company, namely, the defendant No. 2 on 7th June, 1957 and 11th June, 1957. According to the plaintiff, the barge reached Barisal by the end of June but the same were not delivered to the plaintiff on demand on the plea that if the plaintiff's goods had been delivered, the barge carrying the said goods might tilt on one side for want of balance. It is admitted by the defendant No. 2 that the barge went to Khulna without deliver ing the plaintiff's goods and came back to Barisal on 20th July, 1957. It is the plaintiff's case that as the goods were found in damaged condition, the plaintiff wanted open delivery. The steamer company refused open delivery and after some correspon dence with the steamer company, the goods were delivered on the 31st July, 1957 after weighment. It was found that the goods were short in weight by 132 maunds 29 seers 8 chhataks and the rest was delivered to the plaintiff. The plaintiff sent demands to the railway authority and the steamer company; but that demand pot having been complied with, the plaintiff filed the suit serving notices under section 77 of the Railway Act and section 80 of the Code of Civil Procedure. Two written statements were filed, one by the defendant No. 1 and another by defendant No. 2, namely, the joint Agent of the Steamer company. It was pleaded by the joint Agent of the steamer company that the suit as framed was not main tainable ; that the defendant was not liable for the damage caused by the Company; that there was no loss or damage to the goods; that no notice under section 10 of the Carriers Act was served on the Company and that the suit was barred by limitation amongst other objections. Defendant No. 1 also challenged the claim of the plaintiff taking various objections, one of them being that the defendant No. 1 was not at all liable. On the pleadings the following issues were raised (1) Is the description of the plaintiff correct? (2) Is the suit maintainable in its present form (3) Is the suit bad for non joinder and mis joinder of parties and for not proper description of parties? (4) Is the suit bad for want of notice under section 10 of the Carriers Act ? (5) Is the defendant No. 3 liable for the alleged claim of the plaintiff? (6) Can the General Manager, E. B. Railway be sued under the law? (7) Have that notices under section 77 Railway Act and 80, C. P. C. been served in accordance with the provisions of law? (8) Is the plaintiff entitled to recover any amount from the defendants? It appears from the order sheet that evidence was closed on 31st, March, 1959, vide order No.

19. Thereafter on 2nd April, 1959, the plaintiff filed three separate petitions for certain amendment of the plaint‑after serving copies of the amendment petitions on the lawyers appearing on behalf of the defendants. Thereafter, the petitions and objections were heard on 4th April, 1959 and the prayer was allowed by allowing the necessary amendment of the plaint. The suit came up for argument on 27th April, 1957, and the learned Subordinate Judge rejecting the objection of the defendants decreed the suit against the defendant No. 2 who are appellants before us, namely, livers Steam Navigation Company Ltd. and India General Navigation and Railway Company Ltd. Mr. Bose, the learned Advocate for the appellants, has pressed only four grounds. His first ground is that as there was no privity of Contract between the plaintiff and the appellants, no decree for damage can be passed against the appellants. Mr. Abdul Hye, on the other hand, appearing for the plaintiff has argued that in view of the provisions of sections 148 and 9 of the Contract Act, the plaintiff is entitled to recover the damages for the loss of the goods, section 148 runs as follows: "A `Bailment' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor, The person to whom they are delivered is called the `bailee'. Explanation.‑1f a person, already in possession of the goods of another, contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor, of such goods, although they may not have been delivered by way of bailment". Section 9 of the Contract Act runs: "In so far as the proposal or acceptance of any promise is made in words the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied." Section 8 of the Carriers Act (Act III of 1865) provides: "Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried, where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants . . . " In another case the same question came up for our considera tion and was negatived by us. Section 8 of the common carriers Act provides for the liability of the common carriers. It is not disputed that the plaintiff did not deliver the goods to the defendant No. 2 but the goods were delivered by the defendant No. 1 to the defendant No. 2 and as such the defendant No. 2 being a common carrier will be liable to any loss caused during the time it carried the goods from one station to another station. The liability will depend on evidence which will be dealt with later on to see where the loss occurred: when the goods were in custody of the defendant No. 2, in the custody of the other defendant. The second ground urged by the learned Advocate for the appellants is that as there was no weighment either by the railway company or by the steamer company, the plaintiff cannot succeed unless the plaintiff is able to prove that the weighment was made within the knowledge of the railway authority or the steamer company. In support, it has been argued that there is evidence coming from the defence side that there was no weighment taken either by the railway authority or in their presence at the railway station or at Chandpur ghat when the goods were delivered to the steamer company, namely defendant No.

2. This invites us to the appreciation of the evidence adduced in this case, Plaintiff's witness No. 1 has deposed that he went to Chittagong to purchase iron rods for the District Board; that he purchased 9 tons which was equivalent to 245 maunds of German iron rods and 8 tons. of Karachi made which is equivalent to 217 mds. 32 seers at the cost of Rs. 19,417/8; that the bundles were sealed and secured and that when the goods were purchased and arrived at the Chittagong Port, the goods were weighed. The last portion of the evidence as to the weighment of the goods was brought out in cross‑examination bar the defence. We have gone through his evidence and we do not find any sufficient reason or any material contradiction in his evidence to reject his evidence on the question of weighment. Mr. Bose has attacked this evidence after referring to Exhs. A, 2 (b), 2 (c) and 2 (d) and has contended that those documents go to show that the weight was 17 tons but it has been expressed in 462 mds. 32 seers and if the plaintiff really had purchased 17 tons, the weight in maunds would have been 46J maunds. Accord ing to the submission of the learned Advocate this difference in weight goes to show that there was actually no weighment of the goods. It has been further argued that the goods changed many hands before going to the railway station inasmuch as they were carried by truck or by coolies and it might be that the loss occurred there. But no such question was put to the witness No. 1 indicating that the loss took place while in transit from the shop to the railway station. He has further argued that some of the documents go to show that the purchaser was not the plaintiff's witness No. 1 but one Abdul Quader. These documents further go to show that it was to Abdul Quader the goods were delivered; but no question was put to the plaintiff's witness No. 1 to explain this matter. In his evidence the plaintiff's witness No. 1 has deposed that the goods were purchased by him and weighed by them. That statement has not been challenged by drawing his attention to the statements in some of the exhibits where it is shown that one Abdul Quader was the purchaser and receiver of the goods. We cannot reject the evidence that the plaintiff's witness No 1 was also the purchaser and present at the relevant time at Chittagong. As to Abdul Quaders' presence some explanation could have been given by the plaintiff's witness for his non‑examination either due to non‑availability or death if his attention had been drawn in the absence of any suggestion or in the absence of any attempt to draw the attention of the plaintiff's witness No. 1 to the entries, no adverse inference can be drawn against the plaintiff's case as to weighment. Mr. Bose has further argued that the plaintiff's witness No. 1 has deposed that though he took the wighment he did not keep any note of any weighment. For this reason alone his evidence cannot be disbelieved. The weighment was made at the railway station and when it was purchased and after reaching the railway station, the goods were handed over to the railway station for carriage. By referring to Exh. A. it has been argued that the goods were sent at the risk of the sender and the weighment was that of the sender. Accordingly it has been argued that there was no weighment by the railway authority and as Such no reliance can be placed on the weighment given by the plaintiff or his agent. While receiving the goods, the railway authority accepted the weight thereof as given by the plaintiff without any reserva tion. It goes to prove that the weighment was accepted by the railway authority. Furthermore weight has been satisfactorily proved by evidence. Some of the exhibits relied on by the learned Advocate for the appellant go to show that the weighment was 17 tons and we accordingly, after consideration of the evidence both oral and documentary, find that the goods weighed 17 tons and merely because there was a difference of 2 seers and odd that will not make the statements in those documents and the statement of the plaintiff's witness No. 1 false. We accordingly find that the weighment given by the plaintiff in his suit is the correct weigh ment. The next ground is most important. It has been contended by Mr. Bose that two new defendants were brought on the record by amendment of the plaint beyond the period of limita tion and as such no decree could have been passed either against the defendant No. 1 or defendant No.

2. In support he has relied on the cases of Giris Chandra Kit v. Ram Saran Majumdar (A I R 1929 Cal. 591) Sobhanadri Appa Rao Bahadur v. Partbasarathi Appa Rao Savai Aswa Rao Bahadur and others (A I R 1932 Mad. 583). In the first case it was laid down that the adding of any party beyond limitation would not save the suit and in the second the same observation was made. It has been contended by Mr. Hye that no new parties were added by the amendment of the plaint on 4th April, 1959 but only the mis-descriptions of the parties were corrected. We are to see, first of all, whether a new party was brought on record by the amendment of 4th April, 1959 or only there was a misdescription in the plaint and that misdescription was corrected. There is no dispute that if any new party was brought on the record, after the suit having been filed, beyond one year, by Article 30 or 31 of the Limitation Act, the suit will be barred by limitation but if there had been only misdescription of the parties, the question of limitation will not arise. Now coming to this, on the face of the plaint we find that the plaintiff' was described as the District Board Bakerganj represented by Moulvi Choudhury Muhammad Hossain. By the amendment the words "represented by Moulvi Choudhdry Muhammad Hossain" were deleted and after that the District Board Bakerganj remained as the plaintiff. In our opinion, the representation by Moulvi Choudhury Muhammad Hossain, B. L. was nothing but a misdescription and redundant We also find that the plaint was signed by the Chairman. Bakerganj D. B. and that gentleman was Muhammad Hossain. Parties knew that the District Board was the plaintiff. Now coming to the other defendants, defendant No. 1, as in the original plaint, was the General Manager E. B. Railway, Chittagong and the defendant No. 2 was the Chief Traffic Manager, E. B. Railway, Chittagong. By the amendment the General Manager and the Chief Traffic Manager had been penned through and Pakistan had been made defendant No.

1. We do not propose to express our views on this question as the suit has been dismissed against Pakistan and no appeal has been prefer red against Pakistan. Now coming to the defendant No. 3 who is now defendant No. 2 after the amendment of the plaint, we find that the defen dant No. 3 in the original plaint was described as Joint Agent, R. S. N. and

1. G. N. Rly. Co. Ltd., Barisal. After the amendment the `Joint Agent' was penned through and after 'R. S. N.' the words Co. Ltd. were added and after `I. G. N.' and before Rly. Co. Ltd. `and' was added. Leaving aside the Joint :‑agent it necessarily appears that there was a misdescription of the R. S. N. Co. Ltd. and

1. G. N. & Rly. Co. Ltd. in the original plaint. So apparently it was a mis‑description and that corrected but it has been argued by Mr. Bose that the words `Joint Agent' necessarily indicate that it was the Joint Agent of R. S. N. Co. Ltd. and

1. G. N. and Rly. Co. Ltd who was made the defendant No. 3 but we do not find any words indicating clearly that the Joint Agent was the sole defendant in the category of defendant No.

3. We find three persons, namely, the Joint Agent, R. S. N. Co. Ltd. and I. G. N. and Rly. Co. Ltd. There is no word of "after the words 'Joint Agent' showing that the agent of R. S. N. Co. Ltd. and I. G. N. and Rly. Co. Ltd", was only the defendant and we accordingly find that the amendment was necessary not to bring any new party on the record but to remove misdescrip tion of the party and utmost it can be observed that along with the R. S. N. Co. Ltd and I. G. N. and Rly. Co. Ltd. Joint Agent was also one of the defendants in the category of the defendant No.

3. Hence as in our view there was a wrong description and the amendment petition was filed to deal with that wrong description and thereby it did not bring any new person on the record. So the provisions of Order I, rule 10, sub‑rule (5) of the l" Code of Civil Procedure and section 22 of the Limitation Act have no application to the facts of this case. It may be pointed out that written statement was filed on merits as well by taking all possible defence in order to defeat the suit. The last ground urged is that in view of the provisions of section 10 of the Carriers Act, the plaintiff could maintain this suit after giving six months' clear notice to the defendant No. 2 out as the same has not been given, the suit is not maintainable. In support he has relied on the cases of Rivers Steam Navigation Co. Ltd. v. Kashi Prasad and another (8 C L J 192), British and Foreign Marine Insurance Co. Ltd. v. India General Steam Navigation and Railway Co. Ltd. (I L R 38 Cal. 50) and The River Steam Navigation Company, Ltd. and another v. Messrs Hazrarimall Multan Mal (27 C L J 294). The learned Subordinate Judge has found that though there is no documentary evidence to show that notice under section 10 of the Carriers Act was served on the defendant No. 2 but the other documentary evidence goes to show that notice was served. Mr. Abdul Hye, the learned Advocate for the plaintiff‑respondent has argued that substantial notice under section 10 of the Carriers Act was served on the defendant No. 2 and secondly it has been argued that even assuming that no substantial notice was give; to the defendant No. 2 but a combined notice under section 77 of the Railway Act was served on defendant No. 1 as well on the defendant No. 2 and as the contract was entered into by the defendant No. 1, that notice itself will be a sufficient notice as contemplated under section 10 and also section 77 of the Railway Act. In support it has beep argued that Exh. 3 (a) goes to snow that the notice under section 77 was served on 21st August 1957 on the defendant whereas the suit was instituted on 12th March, 1958, that was, beyond six months. We do, in addition, find notice was given to the defendant No. 2 and we are to see whether that notice can be treated as one under section 10 of the Carriers Act. From Exh. 6 a letter from the Joint Agent, India General Navigation & Railway Co. Ltd. and Rivers Steam Navigation Company Ltd. to the Chairman, Bakerganj District Board it appears that a demand was made and the Agent replied: "In further to my letter No. CB. 240/57 of 2‑9‑57 enquiry reveals that Sender weight was accepted in this case and the consignment was delivered to you in the same condition as it was received from the Railway. Under the circumstances, I regret my inability to entertain any claim in this connection" From Exh. 6 (g) dated the 2nd September 1957, the following is found: Your No. 673‑57 G. of 21‑8‑57. "The matter is receiving my attention without prejudice. I shall revert in due course." From this document it appears that there was a demand by the plaintiff for the payment of the damage caused to the goods. Not only this, an averment has also been made in paragraph 15 of the plaint . "That it 6'upon the aforesaid facts that the plaintiff requested the defendants to pay Rs. 5648/10 as compensation for the loss of the goods representing their cost price and freight and other charges and a further sum of Rs. 2,500 to the former as some important works could not be taken up or completed for want of these goods but that the defendants failed to comply with the request of the plaintiff." In the written statement filed no challenge has been made that any such demand was not made. We accordingly find that though there might not have been any notice under section 10 according to form, actually notice was given to the defendant No. 2 for the payment of the money for the damaged goods and as such they had ample opportunity to meet the demand of the plaintiff' but from Exh. 6 and 6 (g) it appears that the defendant refused to pay such compensation and the letter written by the plaintiff as appears from the Exh. 6 (g) is dated 21st August, 1957 and as the suit was filed on 12th March, 1958, sufficient notice was given. Hence we find that there has been a compliance with the provisions of section 10 of the Carriers Act and the cases cited and relied on by the learned Advocate for the appellants have not bearing to the facts and circumstances of the present case. Mr. Bose has not argued that the loss of the goods took place while in custody of the defendant No. 2 but, however, as evidence has been led, we want to give our decision on this point also. Plaintiff's witness No. 1 has "deposed that he purchased the rods in bundles, tied by iron targuna and that he also tied the bundles by purchasing Targuna from market and that the bundles were sealed and secured and that in the same condition it was handed aver to the railway authority. Witness No. 1 for the defendant No. 1 was the Claim Inspector under the E. B. Rly. at Chittagong at the relevant time. He has deposed that the consignment was booked at Strand Road at Chittagong ports; that the consignment was booked under risk note `A' and was sent at owner's risk; that the sender's weight was accepted and that the railway authority did not misappropriate the goods consigned. The evidence that the goods were not misappropriated by the railway authority was not at all challenged in cross- examination by the defendant No. 2 Defence witness No. 2 for the defendant No. 1 who is a railway Transhipment Clerk at Chittagong has deposed that they got 156 bundles and that they handed over the said goods to the steamer company in 6 bundles on 7‑6‑57 and 150 bundles on 11‑6‑57; that Hemendra Nath Kar, transhipment clerk, Chandpur Steamer Company, received the goods and put his signature which he knows. The signature has been marked as Exh. 1‑A. In cross‑examination it was brought out by the appellants that they did not weigh the goods when they handed over the same to the steamer company; that Hemendra Nath Kar was still in service under the company; they that handed over the goods to the steamer company in the same condition they received them at Chandpur; that he was present at the time of delivery and that the bundles were tied by iron guna and that they delivered the goods to the steamer company in tact and no bundle was found in damaged condition. That no bundle was found in the damaged condition was brought out in cross‑examination. So considering his evidence and the evidence of the plaintiff's witness No. 1 we have no doubt that the goods were delivered to the railway authority and to the steamer company in good condition and that there was no damage caused to the goods when the same were handed over to the steamer company. There is no denial of the fact that there has been loss because the weighment was taken at the Barisal steamer ghat and it was found short by the men of the defendant No.

2. It has been argued by Mr. Abdul Hye that as the steamer company went out of its way and took a longer voyage and delivered the goods, that itself was a misconduct on the part of the steamer company. In proof it has been argued that it is deposition of witness No. 5 for the defendant No. 2 that the barge takes two days to reach Barisal from Chandpur but in this case the barge reached Barisal on 20th July 1957, though the goods were delivered to the steamer company on 7th June 1957 and 11th June 1957. It is also in evidence that the steamer reached Barisal station by the end of June but the goods though demanded were not delivered to the plaintiff on the ground that the barge would tilt over. The goods were not delivered at that time; instead the barge went to Khulna and came after a long time, that is, came to Barisal again on 20th July 1957. In support he has also relied on the case of Abdul Karim v. Federation of Pakistan and others (P L D 1960 Dacca 42) and the case of James Morrison & Co. Limited v. Shaw, Savill and Albion Company, Limited ((1916) 2 K B 783). It has been laid down that to go out of the normal route and take circuitous route is itself a proof of misconduct on the part of the carrier. We endorse the view. Furthermore, for a lame excuse the goods were not delivered at Barisal when the barge first reached Barisal but delivered after a long time of unexplainable delay which itself is a misconduct on the part of the employees of the defendant No. 2., It has been sufficiently proved by evidence that the loss occurred while the goods were in custody of the steamer company. The steamer company have not explained how the loss occurred and they have not also given valid and sufficient reason why the goods were not delivered to the plaintiff while the steamer reached Barisal ghat by the end of June, 1957. We accordingly find no substance in this appeal and dismiss the appeal with costs to the plaintiff‑respondent. TALUKDAR, J.‑I agree. S. Q. Appeal dismisses.