BENGAL COAL SUPPLYING FIRM Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a revision application under Section 25 of the Provincial Small Cause Court Act against the judgment of the Additional Judge, Small Causes Court, Poona, dismissing the petitioners' suit for recovery of a sum of Rs, 1,340.50, being damages for loss of a consignment of coal consigned from Pathardihi on the Eastern Railway to Poona.

(2.) THE facts leading to the case, briefly stated, are that the petitioners ordered some quantity of coal from Pathardihi on the Eastern Railway. It is agreed that this quantity was 21 tons 3 quintals. The goods were consigned to Poona on January 14, 1963, in wagon No. 30913. The railway receipt states that the goods were to be carried from Pathardihi to Poona. It is not disputed that for some reason or another, the goods came to be transhipped from one railway wagon to another wagon at an intermediate station. The consignment arrived at Poona on or about January 30, 1963. The petitioners claimed re -weighment of the goods before taking delivery. The Railway Authorities at Poona refused to re -weigh the goods and asked the petitioners to take delivery without re -weighment. The Railway Authorities waited for a month and thereafter served the petitioners with a notice of sale under Sections 55 and 56 of the Indian Railways Act. The coal was, however, not actually sold, probably because it was a controlled commodity and required permission of the District Magistrate to sell it, and the wagon was sent to Matunga and thereafter to Parel and was then used up by the Railway Authorities. The petitioners thereafter filed in the Court of the Additional Judge, Small Causes Court at Poona, Civil Suit No. 2393 of 1983 for recovery of Rs. 1,340.50 as damages, alleging that the respondents had unlawfully refused to re -weigh the consignment and, therefore, delivery could not be taken and the goods were lost. The contention of the respondents is that under the law and the rules framed under the Railways Act, they were not bound to re -weigh the goods and that the petitioners should have taken delivery of such quantity as was offered to them and got the goods re -weighed themselves and filed the suit for damages for shortage. Their contention is that they were, therefore, not responsible for the loss.

(3.) IN ordinary law, the responsibility of a carrier who is a bailee within the meaning of Section 161 of the Indian Contract Act is governed by that section. If by the default of the bailee the goods are not returned, delivered or tendered at proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. In case of railways, Section 73 of the Indian Railways Act provides for general responsibility of a railway administration as carrier of goods. It provides that save as otherwise provided in the Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non -delivery in transit of goods delivered to the administration to be carried by railway arising from any cause, except certain causes with which we are not concerned. This responsibility, I might here state, may be varied by the goods being carried at owner's risk as is done in this case, which merely shifts the burden of proving negligence to the person entitled to the goods, whereas if the goods were carried at railway risk, it would have been the duty of the Railways to prove that they took as much care of the goods as an owner would take of his own goods.