STATE OF KERALA Vs. UNION OF INDIA

JUDGEMENT

(1.) PLAINTIFF in O.S. No. 50 of 1983 on the file of the Sub Court, Kottarakkara is the Appellant. Suit is for realisation of money.

(2.) THE facts that led to the filing of the suit are as follows: Against an Indent No. 5/79, dated 20th April 1979, of the Chief Engineer, Irrigation,' M/s Indian Iron and Steel Co. Ltd., Calcutta delivered to the railway administration two consignments of 455 quintals of 32. m.m. dia M.S. rods in four bundles as per R.R. No. A -335039, dated 13th February 1980 and 572 quintals of 28 m.m. dia M.S. rods in 5 bundles as per R.R. No. A -335040 dated 13th February 1980 to be carried by railway from Calcutta to Punalur Railway Station for delivery to the Executive Engineer, Kallada Irrigation Project Division No. IV, Punalur. The consignment of 32 m.m. M.S. rods reached Punalur Railway Station on 1st April 1980. The consignee deputed the Assistant Engineer in charge of the stores to take delivery of the consignments. He inspected the consignments on 1st April 1980 itself in the presence of the Station Master, Punalur Railway Station and found that the bundles were broken completely and the packing disturbed. Suspecting shortage of consignment, the consignee requested the Divisional Commercial Superintendent, Southern Railway, Madurai on 1st April 1980 for reweighment of the consignment. There was no response from him till 28th April 1980, inspite of reminders. The matter was brought to the notice of the Assistant Commercial Superintendent, Southern Railway, Madurai during his tour to Quilon on 24th April 1980. He also did not take any action. As per letter dated 25th April 1980, the Divisional Railway Manager, Commercial Branch, Madurai rejected the request of the consignee for reweighments of the consignments without assigning any reason there for and the consignee was directed to take delivery of the consignments after paying all charges due. Accordingly, the consignments were taken delivery on 29th April 1980 under protest after entering remarks "packing disturbed and bundles broken up" in page 7 of the Foreign Goods Delivery Book of Punalur Railway Station. The materials were weighed at the lorry way bridge of M/s Sundaran Enterprises, Punalur and shortages were noticed in the two consignments as detailed in the plaint. Goods were delivered only after releasing a sum of Rs. 36,403.20 towards demurrage charges for the period from 1st April 1980 to 24th April 1980. The consignee preferred claims for compensation for the shortage of goods and for the refund of demurrage charges with the Chief Commercial Superintendent, Southern Railway and with the Divisional Commercial Superintendent, Southern Railway. The claim for compensation for shortage was rejected. Plaintiff sent a suit notice on 12th May 1982 to 2nd Defendant under Section 80 of Code of Civil Procedure. After accepting the notice, Defendants agreed to refund a sum of Rs. 29,122.60 being the 80 per cent of the demurrage charges realised from the Plaintiff. The suit is for realisation of the balance of demurrage charges and compensation for the shortage of goods.

(3.) ON a consideration of the evidence, the Court below found that damage was caused to the goods and in that view of the matter, the Court below passed a decree for recovery of Rs. 7,892.48 by way of damages. As regards the claim for refund of demurrages, the Court below held that the railway was not liable to refund the demurrage charges, as the Plaintiff failed to take delivery and insisted on reweighment at the railway premises.