GRAPHITE INDIA LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) AGAINST the dismissal of the suit the plaintiffs have filed this appeal. The suit is against the Railways for recovery of compensation of Rs. 44,000/- for the damage caused to the goods delivered to the Railways for transport.

(2.) ACCORDING to the plaintiff (1) The Graphite India Limited and (ii) New India Assurance Co. Ltd., Seimon's India Limited, Bombay entrusted five consignments of transformers and earth cables to the railways to be transported from Wadibunder, Bombay to Krishnarajapuram as per Railway Receipts dated 29.12.71, 21.1.72, 25.1.72, 29.1.72 and 8.2.72. The consignments were intended for the first plaintiff. The said consignments reached Krishnarajapuram in or about March, 1972, but since there was no crane facility for unloading the consignment, the consignments were rebooked from there (Krishnarajapuram to Bangalore contonment in continuation of the previous bookings as per Railway Receipts dated 1.3.72, 1.3.72, 1-3-72, 2-3-72 and 24- 3-72. When at the Bangalore contonment station the consignments were unloaded it was seen that the consignments were in a tampered and damaged condition. The delivery station authorities gave open delivery. It was found that many items were missing and damaged in all the consignments and the delivery station authority issued open delivery certificate., four of them dated 6.4.1972 and the remaining one dated 12.4.1972. The consignments had been handed over to the Railways at Wadibunder in Bombay in sound condition and they were all packed to the satisfaction of the railway authorities who had issued the railway receipts without remarks. Therefore, the damage should have occurred during the time when the consignment were in the custody of the railway. The total value of the short delivery and damaged goods including the cost of repairs and replacements came to be Rs. 44000/- approximately. The first plaintiff claimed this amount under a letter dated 31.8.72 as required under S. 78-B of the Indian Railways Act, 1890 but no amount was paid. The second plaintiff with whom the consignment had been insured. On payment of settlement of the claim, has been subrogated to the rights and remedies relating thereto. There is thus due a sum of Rs. 44,000/- from the defendants to the plaintiffs. Hence this suit.

(3.) THE trial Court on consideration of the evidence adduced found that it was the defendant railways that was responsible for the non-delivery and damage caused to the consignments, and the plaintiffs are entitled to the amount of Rs. 44,000/- claimed as compensation. It further hold that the suit is not barred by limitation as contended by the defendant. However, holding that the notice sent by the plaintiffs under S. 78-B of the Indian Railways Act, 1890 is not in time, it found that the suit is barred under that section. It therefore dismissed the suit. Hence this appeal by the plaintiffs.