M.A.P. PALANICHAMI NADAR Vs. THE GOVERNOR-GENERAL OF INDIA IN COUNCIL, REPRESENTED BY THE GENERAL MANAGER, SOUTH INDIAN RAILWAY

JUDGEMENT

(1.) THIS petition arises out of a small cause suit instituted by the plaintiff who is the petitioner here for compensation for non -delivery of goods consigned for transit. The goods were consigned for being sent from Colombo to Madura. The consignee was the Colombo Government Railway, but part of the journey had to be covered over the South Indian Railway belonging to the respondent company. There were four consignments of arecanuts and when they were delivered, 15 bags out of those consignments were short. The petitioner carried on correspondence with both the companies, as a result of which 11 bags were found and delivered, and there was an ultimate short delivery of 4 bags. It is for the value of those four bags at Rs. no per bag that the suit was laid against the South Indian Railway Co. The four bags that were short consisted of two bags out of the first consignment and two bags out of the fourth consignment. With reference to the two bags of the first consignment, the plaintiff's case was that he was informed by the Ceylon Government Railway that the entire consignment had been delivered in good order by that company to the South Indian Railway Co. and that fact had also been notified to that company by letter dated 9th January, 1943. The plaintiff, therefore, proceeded upon the footing that the South Indian Railway Co., was liable to make good the loss sustained by him on account of the non -delivery of the two bags out of the first consignment.

(2.) AS regards the two bags in the fourth consignment, the plaintiff claimed the value thereof, but the defendant company's case was that the entire consignment had been delivered and acknowledged on behalf of the plaintiff and that there was no short delivery in that case. The plaintiff's case, so far as these two bags of the fourth consignment are concerned, must, I think, fail. In Ex. D -2, the delivery register, P.W. 1, the clearing agent of the plaintiff signed in token of having received all the 20 bags of that consignment. It is apparently usual in cases where there is short delivery to make a note thereof in the delivery register. Such a note was made in the case of the first consignment in Ex. D -1. The fact that in Ex. D -2, the receipt of all the bags was acknowledged and no such note as exists in Ex. D -1 was made clearly establishes that there was no short delivery in that case. The plaintiff's learned advocate contended that P.W. 1 discovered the shortage sometime later and brought it to the notice of the company's clerk and he also referred to the fact that in the Gate Pass Book the exact quantity of bags that passed the gate would appear and from that the quantity of consignment that was delivered could be gathered. Although the plaintiff gave notice to the defendant for the production of certain documents, he did not ask for the production of the Gate Pass Book. Having regard to all these circumstances I find no merit whatever in the plaintiff's case relating to the alleged short delivery of two bags out of the fourth consignment.

(3.) SECTION 80 of the Indian Railways Act provides that a suit for compensation for loss of goods, where the goods were booked over the railways of two or more administrations, may be brought either against the railway administration to which the goods were delivered by the consignor thereof or against the railway administration on whose railway the loss occurred. The contention of the advocate for the respondent is that ordinarily a suit for compensation for non -delivery can be instituted only against the contracting, or " forwarding company," as it is called in the Railway parlance; but since in several cases it will be difficult for the consignor to locate the place of the loss, precisely, option is given to him, if he can prove that the loss occurred on the railway of the delivering company, to sue the delivering company in respect of the said loss. It is argued on the authority of Chunnilal v. Nizam's Guaranteed State Railway Co., Ltd., I.L.R.(1996) All. 228 that the forwarding company does not contract with the consignor of goods as the agent of the delivering company and that the delivering company is really the agent of the forwarding company. This position is not disputed by Mr. Ramaswami Iyer who appears for the petitioner. He concedes that he could only proceed against the respondent if he could bring the case within the ambit of Section 80. He also concedes that the burden of proving loss by the respondents upon him but his position is that he has, as far as he was able, proved that the loss occurred not on the Ceylon Government Railway, but on the South Indian Railway. It is, therefore, unnecessary to examine the decision referred to above and some other decisions which were cited in the same connection. To start with, it was definitely averred in the plaint, paragraph 10, that the plaintiff had given notice to the Ceylon Government Railway on 5th March, 1943, and that he had received a reply stating that the entire goods had been safely delivered to the defendant company. This specific averment was not controverted or denied in the written statement of the respondent, nor was anything stated in. answer thereto. The letter of the Ceylon Government Railway is Ex. P -5 dated 13th March, 1943. In that letter, the Ceylon Government Railway Co. stated that the consignment of arecanuts as per invoice No. 64 of 8th June, 1942 (i.e., the first consignment) had been correctly given over to the South Indian Railway Co., Ltd., on 12th June, 1942, and the Chief Commercial Superintendent, Trichinopoly, had been informed accordingly on 9th January, 1943. In the notice dated 21st February, 1944, served by the plaintiff's pleader upon the defendant in S.C.S. No. 181 of 1943, the plaintiff required the production at the hearing of the suit, inter alia, of all the correspondence that passed between the defendant and the Ceylon Government Railway Manager, regarding the receipt of the consignments mentioned in the plaint. It would appear that no affidavit was filed in answer to this notice, nor was any statement made as to the circumstances in which the documents called for were not, or could not be, produced. It cannot be denied that these documents were in the possession and power of the defendant and that they were not only relevant but important documents which would have furnished valuable evidence in the case. The conduct of the defendant in keeping back these documents cannot in the circumstances be justified. Further, from the correspondence filed in the case, it is obvious that the petitioner was endeavouring from the commencement to get some satisfactory answer from the South Indian Railway Co., after the receipt of Ex. P -5, with regard to the two bags that were missing, and to each of the inquiries that he was making, the company was replying saying that the matter was under inquiry or still under inquiry and a further reply might be awaited. In some of these notices, it was stated that if in the meanwhile the petitioner took the matter to Court, he would be liable for the entire costs of the company in the said proceeding. The correspondence went on in this strain until 18th December, 1943, on which date by Ex. P -14 the respondent company informed the petitioner that there was no trace of the remaining two bags on the line of the South Indian Railway Co., and they further added this: