PIRAMAL BANWARILAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiff is the appellant in this appeal which arises out of a suit instituted against the Northern Railway, New Delhi and Eastern Railway, Calcutta, for a sum of Rs.4,692/- and interest thereupon claimed by way of damages on account of negligence and misconduct on the part of the defendant's employees. The admitted facts are that 395 bags of dry chillies of which the plaintiff is the owner were booked from Patiala to Bankura. At the time of taking delivery at Bankura 275 bags were found badly damaged by water and the damages were assessed by the Assistant Commercial Superintendent at 50 per cent, which amounts to 72 mds. 7 srs. And 3 ch. On the said basis a sum of Rs.4,692/3/-, being the price therefore was claimed was claimed by way of compensation, together with a sum of Rs.211/8/- as interest. The plaintiff's allegation is that the consignment was put in a leaky wagon and hence the damage caused was due to the negligence and misconduct on the part of the defendants and/or their employees. The suit was originally decreed on contest against the defendant No.2, the Eastern Railway and exparte against the defendant No.1. On appeal the learned District Judge sent the matter back with a direction that the defendants should be given an opportunity to examine the loading clerk and the train examiner as prayed for and the case thereafter should be disposed of according to law. When the matter came back before the learned Subordinate Judge, Bankura, the train examiner was not examined. One Sri Ram being D.W. 4 has been examined in defence, he being the goods clerk at Patiala in January, 1954. It is in evidence that the rain water had percolated through cracks and holes in the wagon and had damaged the dry chillies. The learned Subordinate Judge found that no competent train examiner had examined the wagon at Patiala. D. W. 4 was not a competent wagon examiner. The said witness admitted that train examination involves some degree of technical skill and special training and that people who are appointed as wagon and train examiners are given special training. The learned Subordinate Judge also found that Sri Ram was a goods clerk at Patiala and that he loaded the consignment through the coolies of the sender. His evidence is that he adopted a visual test by getting inside the wagon and by closing all the doors verified if light came in from anywhere. The day when the wagon was loaded was a cloudy one and this mode of examination by visual test was found by the learned Subordinate Judge to be defective. He further held that the wagon was not adequately tested at the starting point and the fact that cracks were noticed at the destination would indicate that possibly the leaks were there all through and could not be detected at the booking station because of the unsatisfactory mode of examination by an incompetent person. The finding of the learned Subordinate Judge was that there was enough proof to show that goods were negligently sent in a leaky wagon and the defendants were held liable for negligence. The suit was therefore decreed for a sum of Rs.4,692/3/- against the defendant No.2 and ex parte against the defendant No.1.

(2.) The defendant No.2 preferred an appeal before the learned District Judge, Bankura, who allowed the appeal and set aside the judgment and decree of the learned Subordinate Judge and dismissed the suit. The lower appellate Court held that there was no evidence from the side of the plaintiff to show that when the goods were booked at Patiala, the wagon was leaky. Relying upon the evidence of D. W. 4, Sri Ram the appellate Court held that there was nothing to show that there is an rule under which any different sort of examination of the wagon other than the visual test adopted by D.W. 4 had to be made. The wagon, according to the appellate Court, although was not examined by any train examiner at Patiala, there was no rule that it had to be so examined. Proceeding on that view the appellate Court allowed the appeal.

(3.) On a second appeal the learned Counsel for the plaintiff appellant contended that the defendants specifically prayed for the remand before the lower appellate Court to have an opportunity of examining the loading clerk and the train examiner. When the case was remanded at the prayer of the defendants the train examiner was not examined. The loading clerk also was not examined but D.W. 4, Sri Ram who happened to be the goods clerk at Patiala was examined. The submission of the learned Counsel for the appellant is that when it has been found that the rain water has percolated through the leaky wagon thereby causing damage to the dry chilies, the lower appellate Court should have held that the damage caused is due to the negligence on the part of the railway administration.