UNION OF INDIA Vs. ASHARFI DEVI

JUDGEMENT

(1.) THE respondent Mithanlal, since deceased, had instituted Civil Suits Nos. 5-B and 8-B of 1948 in the Court of the 2nd Civil Judge, Class I, Sagar, against the appellant, Dominion of India, for recovery of damages. The two suits were consolidated as common questions of law and fact arose for decision. They were disposed of by a single judgment and decree. Only one appeal has, therefore, been filed against the decree which governs both the suits. It was not disputed that due to the amendment of Section 79, Civil Procedure Code, in 1950, the description of the appellant should be ''union of India". The necessary correction, which is only of a technical nature shall accordingly be made in the heading of the memorandum of appeal. The present respondents are the legal representatives of mithanlal.

(2.) CIVIL Suit No. 5-B of 1948 relates to the damage done to the consignment of tobacco from Naoli Railway Station on the Bombay Baroda and Central India railway. The consignment was booked on 24-7-1947 to Sagar on the Great Indian peninsula Railway and reached the destination on 14-8-1947. The connected suit (No. 8-B of 1948} was instituted for recovery of damages in respect of the consignment of tobacco, booked at Rajuwadia on the same Railway on 4-8-1947, which reached Sagar on 21-8-1947. It was not disputed before us that the goods were damaged by rain sometime after their arrival while they were lying on the open platform. The lower Court estimated the damage at the rate at which the goods were purchased. At this rate, it granted a decree for Rs. 8,507-3-0 in Civil suit No. 5-B of 1948 and for Rs. 4,793-15-0 in Civil Suit No. 8-B of 1948, inclusive of the proportionate amount of freight paid by the plaintiff. There is no contest on this point except as regards the rate at which the loss was valued. It was contended that the lower Court ought to have estimated the loss at the selling price of tobacco at Sagar on or about the dates of arrival of the consignments, and as there is no proof of this price, the decree could not stand.

(3.) THE Naoli consignment has been found by the lower Court to have been booked on Risk Notes A and B, Exs. D-9 and D-9-A. This finding is based on the plaintiff's admission of the documents in reply to the defendant's notice and is apparently well founded. As regards the Rajuwadia consignment, wo agree with the lower court that there is no evidence on the defendant's allegation that it was booked on risk Note A. The finding on this point, although challenged is, therefore, confirmed. The result is that as regards the Naoli consignment, the plaintiff had to prove misconduct on the part of the Railway Administration's servants, and as for the Rajuwadia consignment, that the Railway Administration failed to take the amount of care enjoined on a bailee under Section 151 of the Indian Contract Act, 1872: Dwarkanath v. R. S. N. Co. , Ltd. , AIR 1917 PC 173 (A ).