UNION OF INDIA Vs. BABUNA BROTHERS

JUDGEMENT

(1.) This Appeal is against the Judgment and Decree dated 21st May 1974 whereby the Suit of the plaintiff was decreed. Aggrieved with the said Judgement this Appeal has been preferred by the Railways.

(2.) The facts in brief are that two consignments of black dry pepper were booked by defendant No. 2 with the Railways at Ellattur for delivery at New Delhi. Plaintiffs are the endorsed consignees of the Railway Receipts for valuable consideration. The consignment when it reached New Delhi was found to contain pepper refuse and cheff intermixed with palm instead of the black dry pepper. Bags at New Delhi Station allegedly did not tally with the weight and description of the bags booked with the Railways and also did not bear any Railway mark thereon. Request for survey of the consignment and open delivery was accordingly made by the plaintiffs which was declined by the Defendant Railways. After service of notice upon the Railways under Section 78B of the Indian Railway Act, 1890 and section 80 of the Code of Civil Procedure the suit for recovery of Rs. 64,060.00 was filed both against the Railways as well as against the consignor.

(3.) In the Written Statement the defence taken by the Railways was that the consignment was loaded by the consignor at the forwarding Station; the wagon in which the consignment was loaded was found to have developed hot axle enroute and was stopped at Bir Railway Station. Wagon was then removed from the train and the contents thereof were stated to have been transhipped into another wagon at Bir Railway Station for sending to the destination station. Transhipment was done by the staff of the Appellant without the knowledge of Respondent No. 1/Plaintiff.