JUDGMENT
Garg, J.
1. This second appeal has been filed by the Slate of Rajasthan (defendant-appellant) against the judgment and decree dated 11.5.82 passed by the Dist. Judge, Dungarpur in Appeal No. 14/80 by which he partly modified the judgment and decree dated 25.2.80 passed by the learned Civil Judge, Dungarpur and decreed the suit of the plaintiff-respondents for Rs. 2790/- in place of Rs. 5580/-.
2. It arises in the following circumstances:
That the plaintiff-respondent filed a suit against Slate of Rajasthan (defendant appellanl) in the Court of Civil Judge Dungarpur on 22.4.76 stating that the plaintiff-respondent (M/s Mehla Transport Company) firm received truck load of pipes at Dungarpur from one Mansoor of the office of the Executive Engineer, PHED Division, Dungarpur, and the same was to be transported and consigned to the Assistant Engineer, PHED, Banswara and it was to be sent at the place Anjana. The pipes were loaded in a truck No. RJJ 451 and a freight receipt dated 10.7.72 was issued. The further case of the plaintiff-respondent is that on the way left front wheel tyre of the truck bursled and the truck capsized, as a result of which some of the pipes were damaged. The firm sent good pipes to Anjana and they were duly delivered there, but the pipes which were got damaged were at the directions of Mr. Ahmednoor, the store-keeper of the Office of Executive Engineer, PHED, Division Dungarpur transported back to Dungarpur and stacked at the godown of the plaintiff-respondent firm. It is further case of the plaintiff-respondent that the damaged pipes remained lying in the plaintiff-respondent firm’s godown and they were not removed by the defendant-appellant. It has been further averred in the plaint that there was condition of business that the goods lying in the plaintiff-respondent firm’s godown must be removed within a week or otherwise the demurrage will have to be paid at the rate of 25 paisa per quintal per day. The pipes in stack were found 24 quintals in weight and thus, the demurrage which was assessed by the plaintiff-respondent was Rs. 5580/- and for recovery of that amount the suit was filed by the plaintiff-respondent against the defendant-appellant.
3. The defendant-appellant filed written statement on 15.7.77 factually admitting that the pipes in question were booked in the truck belonging to the plaintiff-respondent and it is also admitted that the said truck met with an accident as a result of which some ,of the pipes were damages, but the case of the defendant-appellant is that the accident look place because of negligent driving of the truck driver and for that the plaintiff- respondent firm was liable to pay demurrage and further more if some broken pipes remained in the godown of the respondent firm no question of paying demurrage arises as actual loss was occurred to the defendant-appellant as its pipes were damages. Hence the suit be dismissed.
(4). On the pleading of the parties, the learned Lower Court framed following issues on 10.10.77 :
1- D;k Jh xsch yky Hkh mDr Hkkxhxkjh QeZ okn dk
Hkkxhnkj gS ;fn ,slk gS rks bldk okn ij izHkko
\
&Mh
2- D;k okn i= dh pj.k la[;k 2¼v½
esa of.kZr ikbZil tu LokLF; vfHk;kfU=dh foHkkx dk;kZy; dh vksj ls Jh ealn }kjk
oknh dks ckalokM+k LokLF; vfHk;kfU=dh esa lgk;d vfHk;Urk dh vkatuk LFkku ij
igqpkus gsrq nh xbZ \
3- D;k ekxZ esa 40 ehy py pqdus ds i’pkr vdLekr
ck;k vxz pd dk ifo LQqfVr gks x;k ftlls Lda/k dk caf/kr j[kus okyh fuxM vf.kVwV
xbZ
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&ih
4- D;k oknh ds MªkbZoj dh vlko/kkuh ls Vªd
vkj ts ts 1451 ds myV tkus ls izfroknh dks mrjokn i= dh pj.k la[;k 2 vax ¼lk½
esa of.kZr uqdoku gqvk gS\ &Mh
5- D;k oknh vf/k’kk{kh vfHk;Urk tu LokLF;
vfHk;kfU=dh MqWxjiwj ds ds laxzgkxkfjd Jh vgen uj ds fynsZ’kkuqlkj iqu%MwWxjiqj
{kfrxzLr uyhdkvksa dks yk;k vkSj mUgsa oknh ds LVksj esa j[kk x;k ;fn ,slk gS
rks bldk izHkko \
6- D;k oknh okn i= dh pj.k la[;k 5 ds vuqlkj
5580@& foyEc ‘kqYd ds crkSj izfroknh ds ikus dk vf/kdkjh gS
\
&ih
7- D;k oknh 312@& ifjogu ‘kqYd izfroknh ls
ikus dk vf/kdkjh gS
\ &ih
8- D;k okn i= dh pj.k la[;k 7¼d½
esa of.kZr rF;ksa ds vk/kkj ij Jh vgen uj ,oa ealwj ds gLrk{kjksa ls laikfnr
lafon ds fy, izfroknh mRrjnk;h gS\
&ih
9- D;k oknh us lEiw.kZ eky dks lqjf{kr :i ls
xUrO; LFkku ij ugha igqWpk dj lafon dh vuqikyuk ugha dh gS \ ;fn ,slk gS rks
bldk okn ij izHkko
&Mh
10- D;k oknh }kjk nh xbZ lwpuk vUrxZr /kkjk 80
O;ogkj izfØ;k lafgrk oS/k ,oa leqfpr ugha gS ;fn ,lk rks bldk izHkko
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&Mh
11- nknjlh A
5. After recording the evidence, the learned civil Judge decided all the issues through judgment dated 25.2.80 and he came to the conclusion that the driver of the truck was not at fault when the accident took place and since damaged goods were not taken by the defendant-appellant inspite of notice, therefore, plaintiff-respondent firm was entitled to claim demurrage and thus, he decreed the suit of the plaintiff-respondent for Rs. 5580/- against the defendant appellant.”
6. Aggrieved from the said judgment and decree dated 25.2.80, the defendant appellant preferred a first appeal before the Dist. Judge, Dungarpur and the Dist. Judge, Dungarpur through his judgment and decree dated 11.5.82 concurred the findings of the learned Civil Judge on the point that the plaintiff-respondent was entitled to claim demurrage, but he reduced the amount of demurrage from Rs. 5580 to Rs. 2790/-. Thus, the appeal of the defendant appellant was partly allowed.
7. Aggrieved from the judgments and decrees dated 11.5.82 and 25.2.80 passed by Dist. Judge, Dungarpur & Civil Judge, Dungarpur respectively the defendant appellant has preferred this second appeal and in this Second appeal this court while admitting the second appeal formulated following substantial questions of law on 11.11.82 to be answered by this Court:
(1) Whether the plaintiff was entitled to obtain damarage even if the goods did not reach the destination?
(2) Whether the plaintiff had taken the goods to Doongarpur under the instructions from the defendant or their authorised agent?
7A. It may be stated here that cross-objections have been filed by the plaintiff-respondent alleging that the learned Civil Judge decreed the suit filed by the plaintiff-respondent for Rs. 5580, but the learned Dist. Judge without assigning any reason
reduced the amount to Rs. 2790/- and, therefore, it was prayed that the decree of the trial Court be restored and that of District Judge be set aside.
8. Before proceeding further, it may be stated here that a suit was also filed by the present defendant-appellant against the plaintiff-respondent for demurrage for loss of broken pipes and that suit was dismissed by the Civil Judge, Dungarpur and the appeal of the present defendant-appellant was also dismissed by the Dist. Judge and the second appeal No. 124/82 filed by the present defendant-appellant is also going to be dismissed by this Court.
9. In my opinion, the findings of both the courls below by which demurrage were allowed to be given to the plaintiff- respondent cannot be sustained. It is a simple case between the parties that in the truck belonging to the plaintiff respondent, pipes belonging to the defendant-appellant were loaded on 10.7.72 and during ‘he transit because of bursting of tyre, the truck in question capsized and some pipes were damages and they were brought back in the godown of the plaintiff-respondent firm and pipes which were not broken were sent through another truck at their destination for which they were booked. In the present case, the pipes which were kept at the godown of plaintiff- respondent firm actually belonged to the defendant-appellant and because they were broken, they were kept at the godown and in true sense, the less occurred to the appellant-defendant and not to the plaintiff-respondent. Had there been a case that goods belonging to the defendant-appellant and carried by the plaintiff-respondent had been reached to the destination in the good condition and there the goods would not have been unloaded by the defendant-appellant, the question of demurrage to the plaintiff-respondent might have arisen. Here the simple case is that broken pipes were kept at the godown of the plaintiff- respondent firm for which no question of paying demurrage should have arisen to the plaintiff respondent-firm. Hence, the findings of both the courts below on the point that the plaintiff respondent was entitled to claim demurrage from the defendant- appellant for keeping the damaged goods at its godown are liable to be set aside.
10. Since the plaintiff-respondent is not entitled even to the partical amount decreed by the learned District Judge, therefore, the cross-objections that the plaintiff-respondent is entitled to the full amount decreed by the learned Civil Judge are liable Jo be rejected and the same are accordingly rejected.
11. Thus the above substantial questions are answered in the following manner:
Question No. 1.
(1) That the plaintiff is not entitled to obtain demurrage even if the goods did not reach the destination as they were broken pipes.
Question No. 2
(2) This question need not be answered as it has become redundant.
12. Since substantial question No. l is answered against the plaintiff-respondent, therefore, this second appeal is liable to be allowed.
For the reasons mention above, the present second appeal filed by the State of Rajasthan (defendant-appellant) is allowed and the judgment and decree dated 11.5.82 passed by the learned Dist. Judge, Dungarpurand the judgment and decree dated 25.2.80 passed by the learned Civil Judge, Dungarpur are set aside and suit of the plaintiff-respondent M/s. Mehta Transport Company stands dismissed.
13. No order as to costs.