JETMULL BHOJRA Vs. DARJEELING HIMALAYAN RAILWAY CO LTD

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of damages in respect of 90 bales out of 259 bales of cloth delivered on May 10, 1946 at Wadi Bunder station on the Great Indian Peninsula Railway, hereafter called the G. I. P. Railway, to be carried from there to Giellekhola a station in the Darjeeling Himalayan Railway, hereafter called the D. H. Railway. In order to reach Giellekhola the goods had to be carried over four railways, namely, the G. I. P. Railway, East Indian Railway, hereafter called the E. I, Railway, the Bengal Assam Railway, hereafter called the B. A. Railway and the D. H. Railway. The goods had been booked through to be carried over all these railways. At all material times the railways other than the D. H. Railway, were owned by the Government of India, the D. H. Railway being owned by a private company. At some stage of the litigation the D. H. Railway Company went into liquidation and the liquidators were brought on the record.

(2.) On June 7, 1946, 169 bales were delivered to the appellant to whom the Railway Receipt had been endorsed. Various correspondence thereafter ensued as to the remaining 90 bales with which alone the present litigation is concerned. About September 1946, the wagon containing the 90 bales was traced at a station called Gadkhali on the B. A. Railway. Further correspondence ensused and the 90 bales actually arrived at Giellekhola shortly prior to December 21, 1946 on which date, having found the consignment in a very damaged condition, the appellant requested the D. H. Railway to give open delivery. Thereafter, on February 12, 1947, open delivery of the contents of the 90 bales was given to the appellant. At that time the damage done to the goods was assessed by agreement between the appellant, the B. A. Railway and the D. H. Railway at Rs. 27,920-13-6. The appellant thereafter on January 29, 1948 sent a notice under S. 80 of the Code of Civil Procedure to the Secretary of the Railway Department, Government of India, making a demand of Rs. 34, 192 for damage suffered by it as a result of the negligence of the railways in carrying the goods. This sum was made up of the aforesaid sum of Rs. 27,920-13-6 and certain other sums on account of the difference between the ex-mill price and the retail price of the goods and of the refund of the railway freight. A demand for a similar sum was made on the D. H. Railway. This demand was repudiated by the railways. The appellant, therefore, on April 9, 1948 filed the suit for damages.

(3.) The suit was decreed against the D. H. Railway only by the trial Court for Rs. 27,920-13-6. The D. H. Railway preferred an appeal against the judgment of the trial Court to the High Court at Calcutta. The appellant also filed a cross objection contending that the suit should have been decreed against all the railways and the decree should have been for the full amount claimed by it. The High Court allowed the appeal and dismissed the cross-objection. Hence the present appeal.