GOPI NATH AND SONS Vs. UNION OFINDIA

JUDGEMENT

(1.) A wagon of coal weighing 20 tonnes was booked from Kusanda. The Railway receipt was in favour of Bengal Coal Depot Holders Association, Meerut, and it was endorsed in favour of the plaintiff. The plaintiff alleged that when its Manager and Karta Radhey Shiam went to take delivery of the coal he found the side doors of the wagon open and that about one-fourth of the coal was missing. He demanded delivery of the consignment after weighment which was refused by the Railway authorities. The plaintiff asserted that as there was shortage of coal, which was a controlled commodity, it was justified and entitled to demand delivery after weighment whereas the railway authorities insisted on delivery of the consignment only against a clear receipt to which the plaintiff did not agree. It was further asserted that the Railway was negligent and had committed misconduct in transporting the wagon which resulted in loss of a part of the consignment. The plaintiff claimed a decree for Rs. 1289.86, which included the value of the coal and other charges along with profit and interest. The defendant pleaded that the wagon reached the destination in good condition and there was no shortage and that the plaintiff wrongfully demanded delivery after re-weighment to which it was not entitled. It was also pleaded that even if there was shortage the plaintiff had no right to refuse delivery and it could prefer its claim after taking delivery of the goods. It was further pleaded that since the plaintiff did not take delivery of the consignment, it was unloaded and subsequently sold after due notice to the plaintiff. It was denied that there was any misconduct or negligence on the part of the Railway Administration. The defendant claimed that the plaintiff was liable to pay Rs. 2589.90 towards freight, demurrage, wharfage, handling and unloading charges. After adjusting Rs. 1300/-recovered from the sale of coal the defendant made a counter claim for a sum of Rs. 1289.90 against the plaintiff.

(2.) THE trial court held that there was tampering with the railway wagon due to negligence and misconduct of the employees of the railway. THE Court negatived the plaintiff' s claim that it was entitled to claim delivery after re-weighment. It was further held that loss was caused to the plaintiff on account of its wrongful refusal to take delivery. THE defendant was also held not entitled to any amount as it was a case of contributory negligence. On these findings the suit was dismissed. Aggrieved by the decree of the trial court both the parties preferred appeals. THE learned Civil Judge affirmed the finding of the trial court that there was misconduct and negligence on the part of the Railway employees due to which a part of the consignment was lost. He also held that refusal to take delivery after re-weighment was not justified and the remedy of the plaintiff was to take delivery and then prefer its claim for shortage. As regards the counter claim of the Railway the court held that the defendant Railway was entitled to deduct Rs. 768.80 as demurrage, Rs. 120.00 as wharfage charges and Rs. 14.00 as handling charges i.e. a total sum of Rs. 902.80. After adjusting the amount realised from the sale of coal the defendant was held liable to pay a sum of Rs. 387.06 with one third costs of both the courts. THE defendant submitted to the decree. THE plaintiff has come up in appeal to this Court. A learned single Judge of this Court while hearing the second appeal felt some doubt about the correct legal principle relating to the rights of a consignor or consignee to claim re-weighment of the consignment before taking delivery where it was indicated that there had been pilferage or loss of a part of the consignment in transit and consequently recommended that the appeal be listed before a larger Bench for decision.

(3.) RELIANCE was also placed by the appellant on Harakchand Bhatey v. G. I. P. Rly. Co. (AIR 1927 Nag 77). In this case goods were consigned under risk note in form A. Following the decision in Rohilkhand and Kumaun Rly. (supra) it was held that the defendant Company was liable to the plaintiff in damages for not giving him the necessary facilities to reweigh the goods. We feel that the principle in this case has been rather widely stated. The right of the consignor or consignee regarding re-weighment of goods at the destination has to be determined on the terms under which the consignment was booked.