STATE OF KERALA Vs. UNION OF INDIA

JUDGEMENT

(1.) STATE of Kerala is the appellant plaintiff. Plaintiff filed the suit for refund of the wharfage amount paid to the defendant on the ground that it happened to be paid solely on the acts of omission on the part of defendant's officials. The Sub Judge held that plaintiff is not entitled to get back the wharfage amount collected by the defendant.

(2.) STEEL rods were despatched from Tata Nagar to Punalur Railway Station as per the indent of the Executive Engineer. The consignment was despatched on 8-12-1977. The consignment reached Punalur railway station on 12-1-1978 in two wagons. Executive Engineer reported for taking delivery of the consignment. Some of the bundles were seen tampered with. Executive Engineer on the same day applied for reweighment of the goods. The application was allowed on 19-1-1978. The goods were weighed on 10-2-1978 in a weigh bridge in the presence of the Claims Inspector, Southern Railways. On weighment it was found to be only 57. 40 tonnes as against the despatched consignment of 59. 90 tonnes. 2 1/2 tonnes of steel rods were found short. The defendant permitted the Executive Engineer to take the goods only after payment of wharfage. It is the case of the plaintiff that for re-weighing delay was caused by the defendant and so there is no justification for the defendant to claim wharfage.

(3.) ADMITTEDLY the goods were not removed from the railway premises and the plaintiff removed it only on 10-2-1978. As the railway administration is not bound to give open delivery on demand by the consignee the consignment cannot be left at the railway premises for reweighment at a later stage. At the plaintiff could not have insisted on open delivery, defendant cannot be saddled with any liability for the delay in reweighing the consignment. Merely because open delivery was agreed to by the defendant and ultimately it was discovered that there was shortage the wharfage claimed by the defendant cannot be denied. S. 77 of the Railways Act deals with the responsibility of a railway administration after termination of transit. Under S. 77 (4) the consignee has liability to pay demurrage or wharfgage so long as the goods are not unloaded from the wagon or removed from the railway premises. As there is no provision in the Railway Act to enable a consignee to claim refund of wharfage paid to the railways on the ground that on re-weighment shortage was found in the consignment plaintiff cannot succeed in the suit. As the consignee has no right to demand that the goods shall be opened and inspected in the railway premises before he can be called upon to take delivery he cannot leave the consignment with railway premises or in the wagon and call upon the railway officials re-weigh the consignment and contend that as there was shortage as found out in reweighment he is not liable for wharfage. No rule enjoining on defendant's officers the duty of examination and weighment of goods if required by the consignee before taking delivery was brought to my notice. In the absence of any such rule the consignee cannot leave the consignment in the railway premises and avoid payment of wharfage.