BALMUKUNDLAKHANI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS judgment will also govern the disposal of Second Appeals No. 501 of 1964 and 502 of 1964, heard alongwith this appeal. These appeals, by the plaintiff arise out of three suits instituted by him, for recovery of damages in respect of different consignments of safety matches due to alleged negligence and / or misconduct of the railways or their servants.

(2.) THE facts leading to these appeals, briefly stated, are these. THE consignments of safety matches (each consisting of 150 bundles of Tiger head brand safety matches (40s Wimco size), were entrusted by M/s Eastern Match Company, Ltd., Tirumangalam, to the Southern Railway on 23rd April 1959, for carriage to Katni-Murwara, on the Central Railways, under separate railway receipts. THE goods were consigned to self, and the railway receipts were endorsed in favour of the plaintiff. THE consignments were carried on three different railway systems, viz., the Southern Railway, the South Eastern Railway and the Centra! Railway. THE plaint allegations are that due to the negligence and misconduct of the railways, the packages of safety matches were (i) mishandled, at the transhipment point, at Arokonam, and (ii) that the wagons, in which they were carried, were loose shunted at the intermediary stations, with the result that the packages were crushed and heavily damaged and thereby the goods became useless and unmarketable, and had to be destroyed. After the arrival of these consignments at Katni-Murwara on 15th May 1959, the plaintiff was given open delivery of the goods on 16th May, 1959, as per Certificates of damage, with the following endorsement:- "Out of 150 bundles, 108 bundles of matches were received in wrapper torn condition and packages slightly crushed, but contents full." [This was in Civil Suit No. 52 B of 1960. THE other Certificates were in identical terms except for the difference in quantity.] THE plaintiff claims damages on the allegation that the goods were booked at railway risk and on that basis, seeks the recovery of the price of the damaged goods as per Certificates of damage which had become useless and unmarke- table, apart from expenses for disposal and loss of profits @10 per cent of the gelling price.

(3.) THE first point for consideration is, whether the railways are exonerated of all liability for damages in transit on account of defective packing of the goods, by reason of section 74-A of the Railways Act. THEre is no doubt that there is a specific plea in that behalf, namely, that the stuff used for the packing of the cases and the covering of bundles was not of good quality to ensure safe arrival of the goods at destination. THE Red Tariff No. 17-Rules and Rates for the Conveyance by Rail of Explosives and other Dangerous Goods-In Schedule V, lays down the following packing conditions: