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1. This is a suit for recovery of Rs. 4096/8/- for damage caused through fire to a consignment of jute despatched from the railway station Bhabta on the East Indian Railway to Cossipore Road Station. The consignor as well as the consignee was one Saraogi Trading Co., a firm carrying on business at 46, Strand Road, Calcutta, On the 5th January, 1950 the said firm delivered 84 bales of jute weighing 294 maunds to the Railway Administration at Bhabta under railway receipt No. 105356 dated the 5th January, 1950. The goods were despatched, under railway risk. The wagon containing the goods was attached to a goods train 743 Up, which was on its way to Kri-shnapur, at a distance of 140 miles from Calcutta. Bhabta is situate at a distance of 108 miles from Cossipore Road. It is the case of the railwey that smoke was noticed coming out from the doors of the wagon when it was about to get into Cossimbazar Station. The train was stopped at a distance of 100 yards outside the said station and it was then taken to the said station where the wagon containing the jute of Saraogi Trading Co. was disconnected and the bales of jute were unloaded from the said wagon and the fire extinguished by the appliance of water and cinders which lay on the platform.

2. Apparently Saraogi Trading Co. knew nothing about the fire and on going to take delivery of the jute at Cossipore Road Station they found a part of the goods in damaged condition. On the 17th February, 1950 the defendant issued what is known as a short certificate showing that some of the goods had been damaged. In the said certificate it is stated that damage was assessed at 30 per cent. Thereafter Saraogi Trading Co. took delivery of the goods and called upon the plaintiff with whom the goods had been insured to pay up Rs. 3894/- alleged to be 30 per cent of the total value of the consignment. The plaintiff paid the said sum of Rs. 3894/- to Saraogi Trading Co. on. or about the 20th April, 1950 and had a document executed in its favour described in this suit as a deed of subrogation. Thereafter the plaintiff purported to serve notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure and filed this suit on the 5th January, 1951 claiming Rs. 38947- together with interest on the said sum at 6 per cent up to the date of the suit, amounting to Rs. 202/8/-.

4. Has the plaintiff any cause of action against the defendant?

5. Js the suit maintainable by the plaintiff?

6. Has the Court jurisdiction to try this suit?

7. What relief, if any, is the plaintiff entitled to?

5. Before dealing with the oral testimony adduced it will be useful to take note of the relevant documents disclosed.

6. The opening lines of the insurance policy issued by the plaintiff are as follows :

"Be it known that Messrs. Sarawgi Trading Co. as well in their own Name as for and in the Name and Names of all and every other person or persons to whom the same doth may or shall appertain; in part or in all, doth make Assurance with Indian Trade & General Insurance Company Limited, and cause themselves and them and every of them to be insured, lost or not lost, at and from Bhabta to Cossipore Road, upon any kind of Goods and; Merchandises and also upon the Body, Tackle, Apparel, Ordinance, Munition Artillery, Boat and other Furniture, of and in the good ship or Vessel called the per Bail under R/R No. 105356 of 5-1-50-whereof is' Master under God for this present Voyage."

12. The plaintiff examined two witnesses, the first being one Adi Nath Das Gupta, as assistant in the firm of Sarawgi Trading Co. He said that the invoice in respect of the goods had been surrendered to the Railway and the price stated in that invoice was Rs. 12,980/-. He stated that on the 13th January, 1950 when he had gone to take delivery of the goods at Cossipore Road Station he found that some of them had been wasted and, some soaked in water. He proved the certificate of damage already referred to. On being asked about the value of the jute consigned, all that the witness could say was "at that time the controlled . price of jute was Rs. 39/- per maund and Re. 1/-more for that particular quality of jute which is called Tossa" & that, calculating at Rs. 40/- per maund the value of the jute came to Rs. 11,760/-to which had been added some other sums. He said that the insurance company, the present plaintiff, had paid Sarawgi Trading Co. Rs. 3894/-and had the deed of subrogation executed in respect thereof. In cross-examination the witness said that at the time when he had gone to Cossipore Road Station he found a portion of the goods, inside the wagon and another portion outside it lying on the ground. He admitted that after taking delivery of the goods they , had been sold by Sarawgi Trading Co and that the Insurance Company had made the payment to Sarawgi Trading Co. by a cheque issued from the Insurance Company's office.