UNION OF INDIA Vs. BEHARI LAL AND CO

JUDGEMENT

(1.) This judgment will dispose of Regular Second Appeals Nos. 13-D, 15-D to 17-D, 24-D and 32-D of 1965 and Civil Revision No. 328-D of 1959. The relevant facts of all these cases are substantially similar. All the second appeals are by the Union of India which was the defendant in the trial Court. The revision petition has been filed by the firm Surat Ram Atma Ram who were plaintiffs in the Court of Small Causes, Delhi. In all these cases which are at second appellate stage the plaintiffs filed suits for the recovery of damages for short delivery of part of the consignments of G.I. pipes and black pipes etc. In the relevant forwarding notes relating to the consignments in dispute an endorsement to the following effect had been recorded by the sender or his agent :-

(2.) At the destination station some of the pipes etc. were found missing. Short delivery certificates in respect of the missing part of the consignments were furnished to the plaintiffs. In the suits filed by the respective plaintiffs one of the defences taken by the Union of India was that when the goods in question were tendered to the Railway Administration for carriage they were defectively packed and were packed in a manner not in accordance with the prescribed conditions for the goods in question (condition P. 31) and that it was as a result of such defective or improper packing that the goods were lost and, therefore, the Railway Administration was exonerated from liability by section 74-A of the Indian Railway Act, 1890, as amended upto 1959 (hereinafter called the Act) as there was no proof of any negligence or misconduct on the part of the Railway Administration or of any of its servants. In short the defence under section 74-A of the Act was pleaded. In all the cases which have given rise to the second appeals the trial Court framed the following amongst other issues, which are relevant for the disposal of these appeals :-

(3.) The trial Court held that packing condition P. 31 was applicable to the consignments in question that the said packing condition was not complied w'th by the consignor, that there was an endorsement on the respective forwarding notes in the hands of the representatives of the consignor-firm a.d'nitting non cormpliance with the requisite picking condition but that saction74-A of the Act was not applicable as short delivery of goods did not amount to dateriation or leakage of or was tage in or damage to the goods in question. The learned Sub Judge, however, held that the shortage was due to the negligence of the consignors themselves and, therefore, they were not entitled to recover anything from the Railway Administration. In that view of the matter all those Suits were dismissed by the trial Court.