UNION OF INDIA OWNING THE SOUTHERN RAILWAY HAVING ITS OFFICE AT PARK TOWN MADRAS 3 Vs. UNITED TRACTORS

JUDGEMENT

(1.) THE defendant, who has suffered a decree for a sum of rs. 92,628. 76 in the trial court, has preferred this appeal. THE defendant is union of India, owning the Southern Railway, represented by its General manager. THE respondents filed the suit O. S. No. 153 of 1980 making the following claim. Twelve consignments, each consisting of 3 Nos. M. F. 1035 Tractor, were entrusted to the railway administration between April and December, 1977 at madras by M/s. Tractors and Farm Equipments Limited, Madras (TAFE Ltd.), the consignor for safe carriage by rail to Go-rakpur. THE 1st respondent/1st plaintiff is the consignee. THE consignments were delivered to the 1st plaintiff in a damaged condition resulting in damage and shortage to each consignment. THE 1st plaintiff has suffered a loss of Rs. 92,628. 76 in all. THE details are set out in the plaint. On demand, the railway effected open delivery noting the damage and shortage at the time of delivery. THE loss occurred only due to the negligence and or misconduct on the part of the employees of the railway administration and the defendant is, therefore, liable in law to make good the loss suffered by the 1st plaintiff. In spite of notice under Sec. 80, C. P. C. , the defendant has failed to comply with the demand. THE 2nd plaintiff is insurer of the consignments and it has settled the claim with the 1st plaintiff. Thus, the 2nd plaintiff has subrogated to the rights of the 1st plaintiff. THE suit is, however, filed by both the plaintiffs in order to avoid any technical defence which may be taken by the defendant. Thus the plaintiffs have claimed a decree for a sum of rs. 92,628. 76 with interest at 6% per annum from the date of plaint.

(2.) IN the written statement, the defendant raised the following pleas. The suit is not maintainable. It is denied that the 1st plaintiff is a firm registered under the provisions of law and the plaintiffs should strictly prove the same. Right and title of the 2nd plaintiff is denied. M/s. TAFE Ltd. , consigned three tractors under different invoice numbers and the fittings were not packed separately as expressly declared by the consignor in the Forwarding Note executed by it. The following remark is. made in the forwarding Note: ' 'Detachable parts not packed separately.' ' The consignor, who is a party to contract, accepted the railway receipt with the above remark without demur. The tractors were taken with all care and caution in the same wagon to the destination without any delay or handing by the railway staff. At the destination they were unloaded by the consignee. There was no negligence or misconduct on the part of the railway administration. The consignor, who is a party to the contract, can alone maintain the suit and it is not open to the plaintiffs to file the suit. Valid claims were not made under Sec. 78 (b) read with Sec. 140 of the INdian Railways act. Notice under Sec. 80, C. P. C. is not valid. The suit claim is without any basis. highly exaggerated the inadmissible. Hence, the suit should be dismissed.

(3.) THE third contention is that the forward notices contain an endorsement that detachable parts are not packed separately. It is seen from Ex. B-1, Ex. B-3, Ex. B-9etc. that such endorsement is made on each forward note. THE contention is that the goods have been booked at owner's risk rate. THE consignor has not booked the goods at the railway risk rate, but has availed of the concessional rale, i. e. owner's risk rate. It is therefore contended that as per the Railway Goods Tariff, if such parts are missing, the railway administration is not responsible in cases of goods which are being carried at owner's risk rate. THE goods Tariff No. 33, which was in force from 1. 2. 1971, contains relevant rule at page Nos. 319 and 320. THE article referred to therein is Motor tractors. As per column 1, it includes motor tractors in knocked down condition. THE note at the bottom reads thus: "railways accept no liability for detachable fittings such as rubber mats,spare tyres, lamps, inflators, tools, bells, etc. unless they are securely packed in cases and entered on the railway receipt. Detachable fittings in cases will be carried in the same truck as the motor tractors, no charge being levied provided they form part of the motor tractor or tractors with which they are loaded, and the total weight of detachable fittings and the motor tractor or tractors does not exceed the prescribed minimum weight for charge laid down above. " In the Goods Tariff No. 35, which was in force from 1st september, 1976, a similar entry is found at page Nos. 119 and 200 and there is no difference whatever in the language and hence it is not necessary to repeat the same. However, in the Goods Tariff No. 36, which came into force from 1st november, 1980, a change is introduced in the note at page No. 203. THE note includes batteries, dynamos, cut-outs in addition to rubber mats, spare tyres, lamps, inflators, tools, bells, etc. which were already mentioned in the previous tariffs. In the Goods Tariff No. 37, which came into force from 1st july, 1982 the entry is similar to the one found in Goods Tariff No,36. Relying on the goods Tariff Nos. 36 and 37 of 1980 and 1982, learned counsel for the appellant contends that dynamos, cut-outs and batteries are also detachable fittings and they were detachable throughout and it is not as if they became detachable only in 1980 for the first time. According to him, the parts which were mentioned in Goods Tariffs of the years 1971 and 1976 should be deemed to include dynamos, cutouts and batteries even though they are not expressly mentioned. It is argued that the items mentioned therein are only illustrative and not exhaustive. Learned counsel contends that the railway administration cannot be made liable for the missing parts, viz. dynamos, cut-outs and batteries. It is contended by him that the express endorsement made on the forward notes that detachable parts are not packed separately would clearly show that the railway cannot be made liable for loss of such parts. If the consignor wanted the railway administration to be accountable for the loss of such parts, he ought to have packed them separately and got them entered in the railway receipt. In the absence of such entry in the railway receipt, it is not open to the consignor or the consignee to make a claim for the loss of such part. Thus according to him the liability for the loss or damage to such parts is excluded expressly by the contract itself. We are unable to accept this contention. As pointed out already, the goods tariffs, which came into force in 1971 and 1976 did not include batteries, dynamos and cut-outs. For the first time they were included only in 1980 and continued in 1982. We are considering in the present case consignments of 1977 when the tariff of 1976 was in force. When the railway administration has chosen to omit those items in the earlier tariffs, they cannot now contend that they have no liability with regard to those items even for the prior consignments. THE liability was excluded if at all only from the year 1980 and later on and not for the earlier periods.