MOOLJEE SICKA & CO. Vs. DOMINION OF INDIA

JUDGEMENT

(1.) The plaintiff appellant dispatched three consignments of Biri Tobacco, two on the 27th June. 1945 and the third on the 25th Aug., 1945, from Nepani Out Agency on the M. & S. M. Railway for carriage and delivery to the plaintiff, the first two at Tumsar Town and the third at Champa. The plaintiff alleged that although the said consignments were securely packed in gunnies and were in a dry condition when despatched, they were not delivered within the normal period for covering the distance between the two stations. Certain quantities out of the said consignment were delivered in a wet and rotten condition. The plaintiff company accordingly claimed compensation for the quantities which were not delivered and for damages suffered as some of the bags had become wet. The Governor-General in Council represented, at the time when the cause of action arose and the suit was filed, the three different railway administration, the Bengal Nagpur Railway, the Great Indian Peninsular Railway and the Madras and South Maharatta Railways. A written statement was filed on behalf of the Bengal Nagpur Railway controverting some of the allegations made in the plaint. After the issues had been settled written statements were filed on behalf of the two other Railways. The learned Subordinate Judge decreed the plaintiff's claim in part so far as two of the consignments were concerned. The claim in respect of the third consignment was dismissed. The plaintiff firm has preferred the present appeal which is now limited to the third consignment. We need therefore consider only such points as have been urged before us.

(2.) The claim may be divided into two parts. The plaintiff allege loss of 8 bags and non-delivery of the same. On the ground of negligence of the railway administration 50 bags were damaged and claim is preferred to the extent of 621/2 p. c. of the total value of the same.

(3.) The learned Subordinate Judge has come to the conclusion on the evidence adduced that 58 bags had actually arrived at the destination. The contents of 8 bags were almost totally damaged and rotten and that a substantial portion of the contents of the other lot of 50 bags were found to be badly damaged.