BALMUKUND SHRIKISHAN DAGA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE plaintiff filed a suit for recovery of damages of Rs. 30,730/ - with interest and demurrage charges for short delivery of linseed oil and weighment charges of Rs. 165/ -. On 23.5.1978, the plaintiff is found to have booked one tank linseed oil from Rajnandgaon, Madhya Pradesh, to Jalandhar City in Punjab vide invoice No. 1, railway receipt No. 220382 in wagon No. E.R.T.P. 61351 at the railway risk rate for the delivery at the destination. On 15.6.1978 the goods reached Jalandhar City. But as there was leakage in the tanker, the plaintiff's agent asked for an open delivery. On 24.6.1978 a book delivery was given to the plaintiff and on 27.6.1978 the goods were weighed and it was found that there was a shortage of 3,250 kg. of linseed oil. The delivery of the goods was given to the plaintiff on 4.7.1978. As per the claim, at the relevant time, at Jalandhar City the rate of linseed oil was Rs. 6.90 per kg. and, therefore, plaintiff had suffered damages of Rs. 22,425/ - on account of the short delivery of linseed oil. It was further alleged that as there was no fault on the part of the plaintiff -appellant and the goods were delivered by the Railways late on account of their own fault, the Railways were not entitled to charge demurrage of Rs. 8,125/ - and weigh -ment charges of Rs. 165/ - and the plaintiff is entitled to refund of this amount from the Railways.

(2.) AS per the defence, there was no leakage and the late delivery was on account of the inaction of the plaintiff himself and, as the plaintiff himself has not taken delivery in time, he is liable to pay demurrage and also the weighment charges. It was further submitted that when the goods were weighed only 274 kg. of oil were found short, but by joining hands with the railway employees the plaintiff secured a shortage certificate for 3,250 kg.; the goods were sold by the plaintiff through Sewakram Oil Mills and the document of Sewakram Oil Mills shows shortage of 274 kg. only and, therefore, the plaintiff's claim for damages of shortage of 3,250 kg. of linseed oil was denied.

(3.) IT was argued by the learned counsel for the appellant that the trial court has wrongly relied on the document, Exh. D -1, a letter of Sewakram Oil Mills, and the statement of the defendant's witness Inder Singh and came to the conclusion that there was only shortage of 274 kg. of linseed oil, whereas the plaintiff has proved the shortage of 3,250 kg. of oil by producing a certificate issued by the Railways. However, the plaintiff's counsel has not challenged the rate at which the damages were assessed, i.e., at the rate of Rs. 6.85 per kg.