THE UNION OF INDIA (UOI), OWNING THE NORTHERN RAILWAYS, BY ITS GENERAL MANAGER AND ORS. Vs. DEVIDAYAL BRIJLAL

JUDGEMENT

(1.) This revision from the decision of the Subordinate Judge of Coimbatore in a Small Cause Suit for recovery of compensation from the Petitioners for goods damaged in transit through the Petitioner's railway, raises an interesting question of law. One Bihari Lai as consigner despatched 221 bags of gram dhall from Mandiadampur in the Northern Railway to Coimbatore served by the Southern Railway, the goods being despatched under railway risk. The consignee was one Bihari Lal Mohan Lal. The consignee by his partner endorsed the railway receipt in favour of the Punjab National Bank Limited, Delhi. It is in evidence that the Plaintiff's head office at Delhi got an endorsement of this railway receipt paying the Bank at Delhi and sent it to the Punjab National Bank Limited, Coimbatore. One Meenambika Company became an endorsee of the railway receipt from the Plaintiff and they paid the entire value of the goods to the Punjab National Bank Limited, Coimbatore, to whom the railway receipt had been sent. This Meenambika Company paid the railway freight and secured the goods from the railway. The goods were in damaged condition, and they took open delivery obtaining the necessary certificate from the claims inspector. There was a settlement of the claim between the Plaintiff and Meenambika Company and on account of the loss by reason of the damage, the Plaintiff paid Meenambika Company a sum of Rs. 1,383.60 being the loss suffered by Meenambika Company under the transaction. Under the letter exhibit A -4, Meenambika Company intimated the Chief Commercial Superintendent, Southern Railway, that they relinquished their claim for damages in the matter and authorised the Plaintiff to receive the sum on their behalf. It is in these circumstances the Plaintiff filed the suit after giving the necessary notice. Besides other defence on the merits, the railway inter alia questioned the right and title of the Plaintiff to sue. It may now be taken as beyond dispute that the goods got damaged by reason of negligence on the part of the railway. There is also no dispute as to the quantum of damages. The trial Court accepted the plea on behalf of the Plaintiff that Meenambika Company were only agents for the Plaintiff selling goods on commission basis at the Plaintiff's risk, and that the Plaintiff had right and title to institute the suit.

(2.) The question now raised before me is whether the Plaintiff as an endorsee of the railway receipt can maintain the suit against the railway for damages and secondly whether Meenambika Company could in the circumstances made out in evidence be deemed to be only agents for the Plaintiff. Before considering the question raised that a mere endorsee of the railway receipt could not maintain a suit for damages or compensation against the railway, it would be convenient to fix the relationship between the Plaintiff and Meenambika Company. The plaint does not proceed on the basis of Meenambika Company being only commission agents for the Plaintiff for sale of the goods. A reading of the plaint leaves one with the impression that Meenambika Company took delivery of the goods from the railway on their own account only. I prefer to set out the relevant passages in the plaint in this regard:

(3.) The above are the only relevant allegations in the plaint in regard to the Plaintiff's right to sue, and it is clear therefrom that it is not the case of the Plaintiff that Meenambika Company were only agents of the Plaintiff and the ownership of the goods was with the Plaintiff at any time, much less at the time when delivery was taken from the railway. In the letter referred to in the plaint, Meenambika Company relinquish their claim for damages and purport to authorise the Plaintiff to receive the sum on their behalf. This letter emphasises the fact that the Plaintiff was not recognised as owner of the goods entitled to damages in his own right. If the letter is to be given effect to, it will be recognising an assignment of a right to sue for damages. No doubt, at the trial a case of commission agency was developed and this found acceptance. But it is admitted by P.W. 2, that no record has been filed to show that Meenambika Company sold the goods as commission agents of the Plaintiff. Meenambika Company had paid the full value of the goods to the Punjab National Bank Limited, Coimbatore, when taking the railway receipt from the Bank. No doubt that by itself may not negative agency. P.W. 1 a clerk of Meenambika Company, admits that there was no record to show, that they were to sell the goods as commission agents and that the Plaintiff never wrote to them to pay their own money, take the goods and sell them as commission agents. But in the absence of any pleading to the effect and when the entire evidence is consistent with the case of Meenambika Company selling the goods on their own account, it is difficult to sustain the finding of the trial Court that Meenambika Company acted only as agents for the Plaintiff. I have, therefore, to examine the maintainability of the suit claim on the basis that the Plaintiff is an endorsee of the railway receipt for value who had re -endorsed it to Meenambika Company for value and compensated Meenambika Company for the loss sustained by them by reason of the damaged condition of the goods. It is argued that by reason of the letter exhibit A -4 given by Meenambika Company, the Plaintiff could be deemed to have obtained a re -endorsement from Meenambika Company.