UNION OF INDIA Vs. RADHIKARAN SATYANARAYANA

JUDGEMENT

(1.) The plaintiff in the Small Cause suit is the transferee by endorsement for value of the Railway Invoice No. 10 dated 10-9-1953 whereunder 225 bags of peas were despatched for transit from Arrah to Kakinada port. He claimed against the Union of India, owning the Southern and Eastern Railways, a sum of Rs. 562/- as damages towards the value of the stock drenched and became unfit for human consumption. The Railway Doctor, after examining the stock, certified that only 30 per cent. of 30 bags were damaged and became unfit for human consumption. The plaintiff, therefore, confined his claim for compensation to the said 30 per cent, of 30 bags at Rs. 25/- per maund. The defendant pleaded that the goods arrived at Kakinada port on 27-9-1953, but the plaintiff took delivery only on 211- 1953, while the plaintiff was bound to take delivery of the goods within the free time allowed without demurrage and wharfage, that the plaintiff caused undue delay and that as the goods got drenched after the reasonable time allowed for clearing the goods, the plaintiff alone has to blame himself and under Rule 31 (2) of the Goods Tariff No. 28 of the Indian Railway Conference Association, the defendant is absolved from the liability. D. W. 2, who was the acting Chief Goods Clerk in Kakinada Port Station at the relevant period, deposed that the goods shed was in good condition and that there was heavy unprecedented rain after the woods arrived at Kakinada port. The plaintiff as P. W. I, has deposed that the stock became wet in the goods shed at Kakinada port and if the stock is wet for 15 days it gets spoiled as in this case. The defence, therefore, is that due to the delay caused by the plaintiff in taking delivery, the goods got drenched and that though the railway has collected an amount of Rs. 844/8/0 by way of demurrage for storing the goods in their goods shed, the railways are not liable to pay the damages claimed by the plaintiff. The learned Subordinate Judge, Kakinada, who tried the suit held that Rule 31(2) is ultra vires and is repugnant to the provisions of Section 72 of the Indian Railways Act and the defendant-Railways having received the charges for demurrage, are estopped from disputing their liability as bailee and decreed the suit as prayed for. The defendant has thereupon preferred this Revision Petition to this Court.

(2.) The first point that arises for consideration is whether the railway administration is responsible to the plaintiff for damage done to the goods, even though the plaintiff did not take delivery of the goods promptly or within the reasonable time after the arrival of the goods at their destination. Section 72 (1) of the Indian Hallways Act, makes the railway administration responsible as bailee under Sections 151, 152 and 161 of the Indian Contract Act. Sub-section (3) of that Section excludes the railways from responsibility as common carriers. Therefore it is dear that the railway administration will not share any responsibility as insurers but only as bailee. Sub-section (2) of Section 72 is in the following terms :

(3.) The decisions cited at the Bar may now he noticed. In Secretary of State v. Har Kishan Das-kura Mal, ILR 7 Lyh 370 : (AIR 1926 Lah 575 (2)) (A), the plaintiff, who was the consignee, failed to take delivery of goods which consisted of bags containing ara till 10-7-1920 though the goods arrived" at their destination on 3rd July. On that date the consignee refused to take delivery as he foiled the ata damaged by rain. The railway authorities thereupon sold the hags by auction on 112- 1920 and appropriated the proceeds towards demurrage. The trial Court disallowed the plaintiff's claim for value of the goods, but granted him a decree for the price for which the bags had been sold minus the sum payable on account if demurrage. The appeal against this decision was allowed by the District Judge; but the High Court in rcversing the judgment and decree of the District Judge, prefer-red to adopt the reasoning of the decision of the Allhabad High Court reported in B. N. W. Ry. Co. v. mUL Chand IIR 42 All 655 : (AIR 1920 All 280) (R) which hid-down that ;