MOHAMMAD SHAFIQUE Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a plaintiff's appeal from an appellate judgment and decree of affirmance dismissing a claim against the Union of India owing and representing certain railways for compensation for non-delivery of a consignment. The sole appellant Mohammad shafique and his brother Mohammad rafique carry on business under the name and style of Mohammad Shafique and Brothers, a registered firm at raniganj within the sub-division of asansol. They deal in tobacco including what is called makha (mixed)tobacco. With a view to manufacturing makha tobacca of various qualities, they purchase scents from far and near.

(2.) ON September 27, 1951 the foreign Scent Supplying Syndicate (shortened in the railway receipt into f. S. S. S.) of Bombay dispatched one case of chemical perfumery christened satomala from Borivli, a station the abbreviation of which in railway terminology is B. V. I. The case contained 112 lbs. of Satomala. The destination of this consignment dispatched under a parcel way bill No. B/l, 5751-2 dated september 27, 1951 was Raniganj it was a consignment to self. The railway receipt which is the parcel way bill just stated was endorsed in favour of Mohammad Shafique and brothers and for consideration too, the appellants having paid the price thereof : Rs. 1642/- apart from the railway freight and other charges, to one shantilal, the proprietor of the consignor firm, Foreign Scent Supplying syndicate. In terms of measure of weight prevailing here, the case of satomala including its own weight weighed 2 maunds 5 seers.

(3.) A consignment as that was not delivered at this end to the appellant and his brother. Hence, after observing the due formalities of law, they both of theminstituted the suit on november 25, 1952 in the court of a munsiff at Asansol praying for a decree of Rs. 1792/- with costs and interest: rs. 1792/- as the price of 112 lbs. , of satomala at the rate of Rs. 16/- a lb. The Union of India representing the four railwayseastern, Western, northern and Centraldefended the suit on various grounds two of which need only be noticed: (i) neither being the consignor nor the consignee and there being no privity of contract with any one of the railways, the plaintiffs had no locus standi to maintain the suit in absence of proof of ownership of the goods consigned and (ii) the defendant could not be mulcted in damages as the loss complained of was due to leakage of the container in circumstances beyond the control of the railways. The learned Munsif held that the endorsement of the railway receipt passed title to the goods and that the plaintiffs having failed to establish negligence or misconduct on the part of the railway administration, section 74c (3) of the Railway Act, 9 of 1890, made them immune from any liability for the loss. In that view, by a judgment and decree dated March 14, 1955 he dismissed the suit.