UNION OF INDIA Vs. IBRAHIM GULABA TOBACCO MERCHANT

JUDGEMENT

(1.) THE first respondent had filed a suit in the Court of the 2nd Additional District judge, Durg, claiming Rs. 13,500/-from the Union of India representing the general Manager, South-Eastern Railway, Calcutta, Central Railway, Bombay and the Western Railway, Bombay. The claim was decreed to the extent of Rs. 12,500/- with costs. Being aggrieved by the said decision, the Union of India representing the General Manager, South Eastern Railway, Calcutta, has filed this appeal.

(2.) BRIEFLY stated the case of the plaintiff-respondent is as follows: One consignment containing 101 bags of tobacco, weighing 133 maunds and 33 seers, was despatched by Chimmanlal Somabhai and Company on 11-7-1959 from bhalej Railway Station to be delivered to the plaintiff at Durg. On 7-8-1959, the plaintiff approached the railway authorities at Durg for the assessment delivery of the consignment and submitted an application for that purpose alleging that due to negligence or misconduct of the railway, damage to the consignment had been caused. The Station Master, Durg, did not effect delivery and kept the application pending until 19-8-1959 and then refused to give delivery of the consignment unless the Central Excise Inspector attended the assessment delivery. The plaintiff then approached the Excise Authorities. The Superintendent, Central Excise, raipur Circle, ultimately agreed vide his letter, dated 11-9-1959, to send the central Excise Inspector, Durg, at the time of assessment delivery and he informed the Station Master, Durg, to call him. However, the Station Master, Durg, did not effect delivery and this resulted in further damage being caused to the goods. The plaintiff-respondent then wrote to the District Commercial Superintendent, nagpur, the General Manager of the South-Eastern Railway, Calcutta, and some other railway authorities on 1-9-1959 preferring his claim under Section 77 of the railways Act. On 21-11-1959, the District Commercial Superintendent, South-Eastern Railway, Nagpur, wrote to the Station Master, Durg, vide his letter (Ex. p6)that delivery of the consignment may be granted assessing damages at 45p. c. which had been agreed to by the consignor. He also ordered him to forego wharfage charges. However, when the plaintiff approached the Station Master, durg, he refused to give delivery of the consignment on 23-11-1959 on the ground that the value of the assessed loss was Rs. 7100/- and the Station Master was authorised to effect delivery in those cases only when the assessed loss was up to Rs. 1500/ -. (vide Ex. p-7 ).

(3.) THEREAFTER, the consignment was advertised for sale because no delivery was taken by the plaintiff. The plaintiff on being apprised of the sale notice, dated 2811-1959, again asked the Station Master to effect delivery of the consignment and on his refusal to give delivery after passing qualifying remarks and reweighment without instructions of the District Commercial Superintendent, Nagpur, the plaintiff ultimately took delivery of the consigned tobacco under protest on 12-121959 in the presence of the panchas who assessed the extent of damage at 60p. c. The plaintiff then obtained permission from the Central Excise Department for processing damaged tobacco and the processing was completed on 27-12-1959. The plaintiff claimed in his suit the sum of Rs. 13,500/- as damages under the following heads: loss of weight at Rs. 12 maunds, 31 seers 116-12 per maund at and 8 chhataks. bijak rate 1493/- Completely damaged 43 maunds, 3 seers and tobacco which could 7 chhataks. not fetch any price higher than Rs. 11612 per maund (including Govt. duty of Rs. 100/-) 5030/-Partially damaged 73 maunds, 34 seers tobacco which could and 12 chhataks. be sold at Rs. 170/per maund only, thus causing loss at Rs. 4612 per maund (Govt. duty being Rs. 100/per maund ). 3471/- 4 loss of profit at the rate of 20% according to prevailing market rates. 2000/-Refund of wharfage and demmurage which resulted due to negligence of the railway Authorities in not giving the delivery to the plaintiff for complete four months. 1523. 60 miscellaneous expenditure along with notice, typing charges, etc. 100. 00 total 136,17. 85 the plaintiff relinquished the claim of Rs. 117. 85 Paise and claimed a decree for rs. 13,500. 00 only.