UNION OF INDIA Vs. TAHERALI ISAJI

JUDGEMENT

(1.) THE amount in dispute in this case is only Rs. 170, but it raises questions of some complexity. The plaintiff is a trader in bicycles at Dhulia in the district of West Khandesh. The plaintiff ordered out a quantity of bicycle tyres and tubes from the Dunlop Rubber Co. of Bombay. The Dunlop Rubber Co. consigned the articles ordered by the plaintiff from Bombay in three bundles. The bundles were delivered at the Byeulla Goods Depot of the Central Railway for carriage to Dhulia under railway receipt No. 6513/32 dated May 1, 1952. The consignors were shown in the railway receipt as Dunlop Rubber Co. of India, Ltd., and the goods were consigned to 'Self. The consignment reached the destination on May 13, 1952, and was kept in the warehouse of the railway at the Dhulia railway station. On May 18, 1952, the goods were cheeked at the weekly inspection and the entire consignment was found in order. At the next inspection on May 25, 1952, one out of the three bundles in the consignment was found missing. The Dunlop Rubber Co. had sent the railway receipt to the Bank of Baroda, Ltd., after endorsing the same as follows: 'Please deliver to Messrs. Bank of Baroda Ltd.Jalgaon''. The plaintiff obtained an endorsement of the railway receipt in his favour from the Bank of Baroda, Ltd., and presented the railway receipt on June 5, 1952, and demanded delivery of the consignment. The Station Master at Dhulia gave what is called 'open delivery'. Only two out of the three bundles were delivered and it was represented to the plaintiff that the remaining bundle was lost. The plaintiff then served the usual notices under Section 77 of the Indian Railways Act and Section 80 of the Civil Procedure Code and filed Small Cause Suit No. 471 of 1953 in the Court of the Joint Civil Judge, Junior Division, at Dhulia, against the Union of India as representing the Central Railway, for a decree for Rs. 170 being the compensation for loss suffered by him by reason of the failure of the Central Railway to deliver the bundle. The suit was resisted by the Union of India on diverse grounds. It was contended that the plaintiff was not a consignee of the goods, that he was not entitled to file a suit for compensation for loss of the goods, that the goods had been received in due course on May 13, 1952, and the consignment was found in order in the weekly inventory on May 18, 1952, but one bundle was found missing in the inventory on May 25, 1952, and a report in that behalf was made immediately, but on investigation the missing bundle and the person responsible for removing the same could not be traced. It was also contended that the Union of India was, by reason of Rule 30(2) of the Goods Tariff Rules, Part I, not liable for loss of the bundle, and that in any case the claim was excessive.

(2.) AT the trial, the plaintiff gave evidence and stated that he had enquired about the goods on two or three occasions before June 5, 1952, but he was informed by the Station Master that the goods had not arrived and that he was not given intimation about the arrival of the goods. He then stated that he did not know about the deficiency in the goods till actual delivery was tendered to him by the Station Master. Dattatraya Gajanan, an employee of the Central Railway, was examined on behalf of the Union of India. He stated that one of the bundles was found missing when inventory was made on May 25, 1952, and an endorsement in that behalf was made by the Goods Clerk, Laxman Hiraji. He then stated that watchmen were kept to guard the warehouse and there was no report made about the breaking of locks of the warehouse. He also stated that the key of the warehouse used to remain with the Assistant Station Master and the warehouse was always opened in the presence of some official. The witness was unable to say how the bundle was lost. The witness also stated that he did not know whether the consignor was informed about the loss and that there was no fixed rule about 'the period of arrival of goods'.

(3.) IN support of the application, substantially two contentions were urged by counsel for the Union of India: (i) that the plaintiff had no right to sue as he had not entered into a contract with the Railway Administration. It was submitted that even though the plaintiff was shown on the railway receipt as an endorsee, the benefit of the contract entered into by the Dunlop Rubber Co. with the Central Railway was not assigned to the plaintiff and the plaintiff was, therefore, not entitled to file a suit for compensation for loss of the goods; (ii) that the plaintiff having failed to make a demand for delivery of goods within the period prescribed by Rule 30(2) of the Goods Tariff Rules read with Rule 85AA, the liability of the Central Railway was extinguished, and for loss of the goods the plaintiff could not maintain a suit for compensation.