JIWAJI ESMAILJEE Vs. UNION OF INDIA

JUDGEMENT

(1.) ON March 30, 1955, the Tata Iron and Steel Company, Ltd. consigned one wagon -load of mild steel angle iron bars from the Kumardubi railway station under railway receipt No. 259507, invoice No. 2, dated March 30, 1955. The consignee was the plaintiff who is an iron and steel merchant at Nagpur. When the consignment was received at Nagpur, it was found short in weight, i.e. the goods weighed 20 tons and 3 cwts. when sent, but they were found to be only 19 tons and 3 cwts. on reweighment at Nagpur. The plaintiff sued the defendant, the Union of India, representing the South -Eastern Bail -way, for the loss of the goods.

(2.) NOW , there is no dispute as to the findings on the question of fact. Both the parties have accepted the findings of the trial Court which are as follows: - The following facts are now too clear to be disputed (as seen from the evidence on record): (1) that the consignment was loaded in an open wagon, not by the defendants' men or under their supervision though the booking was done at the railway risk note I, (ii) that on reweighment at Nagpur, the consignment did weigh only 19 tons and 4 cwts. as against the original weight of 20 tons and 3 cwts., (iii) that the plaintiff did protest on account of the shortage though he did not do so promptly, (iv) in the absence of any cogent evidence from the defendants' side I see no reason to disbelieve the plaintiff. Notwithstanding these findings the trial Court dismissed the plaintiff's claim, because it held that the defendant railway was protected under Section 74 -B of the Indian Railways Act.

(3.) ON behalf of the plaintiff it is now urged that Section 74 -B does not afford any protection to the railway if the goods are lost because it only protects the railway against 'destruction, deterioration or damage'. Mr. Rudra on behalf of the railway has urged that loss of the goods is included in the word 'deterioration' in Section 74 -B and he relies upon a decision of the Patna High Court in Bengal and North -Western Rly., Co., Ltd. v. Tupan Doss. ILR (1926) 5 Pat. 465.