CENTRAL INDIA CHEMICALS PRIVATE Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from the judgment and decree dismissing his suit for compensation, in respect of a consignment belonging to him, of a boiler and attached parts, carried by the Railway from Kanpur to Sehore, parts of which on arrival were found to have got broken, and parts missing. The questions for decision at this stage are,

(2.) THE facts of the case, except as to the manner in which the consignment was damaged, is common ground. The plaintiff sent his agent to go and buy an old boiler and attached machinery from Kamalapat Motilal Mills at Kanpur. He bought it and got the machinery loaded in a wagon at their railway siding. The consignment was taken by the Northern Railway administration who gave them a bill, as usual, for "self", and which was ultimately endorsed in favour of the plaintiff and sent to him. The weight was about three tons (84 maunds) and after putting the machinery in the wagon, the consignor himself got the different sections (including some wheels) secured by wire ropes. It was on "owner's risk" and the packing was described as in a defective condition,--"boiler on chams secured by iron wires and strappings. " The date of the invoice was 27-10-1954, the wagon being open, No. 61465. It arrived at Sehore on 22-11-1954, now in another wagon No. 75534. It is also in evidence that on 3-11-1954, a servant of the railway had detected that the load on this wagon had got out of balance and could not be taken farther without the danger of the wagon itself overturning and causing an accident. Accordingly, it was pushed back to some siding or yard for readjustment. We do not know what had happened but soon after it was on its way to Sehore, loaded in another wagon. On arrival at Sehore, it was detected that some parts had got damaged, and some parts had disappeared.

(3.) THE plaintiff had a look at the machinery on the arrival and as there was damage, declined to take it except on open delivery with the damage assessed and noted in the usual manner. Accordingly, the railway took the appropriate steps, and got the damage noted with particulars and assessed by a mechanic from Jhansi and gave open delivery finally on 15-3-1955. Meanwhile the railway administration discovered that the original transport charges 'levied on this consignment were on underestimate because of the size of the articles carried, and accordingly demanded and obtained a surcharge, paid under protest. Some time later, the plaintiff issued notices and finally brought the suit for compensation for loss of some parts, and damage to others, the expenses of refitting, and refund of the surcharge of Rs. 343/ -. The compensation proper was Rs. 4700/-on the basis of what the plaintiff describes, without direct evidence, as an estimate by marshalls a well known engineering company; this also included a sum of Rs. 1000/- as refitting, charges. The railway's assessment was about one third of this sum, being Rs. 1600/ -.