UNION OF INDIA Vs. SHEW BUX SATYANARAYAN

JUDGEMENT

(1.) Advocate Ajay Basu, on behalf of the Railways, defendants appellants in this second appeal, raises a short question of law as to whether a decree for damages of the plaintiffs consignment of sugar is permissible, only on the basis of an Assessment or Damage Certificate given by the Inspector of Railways, who prefaced his declaration on the certificate by the averment 'without prejudice'.

(2.) The plaintiff respondent's allegation of loss of about 33 maunds of sugar due to the misconduct and negligence of the defendant appellant is denied in the written statement. At the time of delivery, the usual short certificate was given by the Railways. The Court of first instance decreed the suit in part only for ft sum of Rs. 188-18 as on the admitted shortage of 5 maunds and 14 seers of sugar, pilfered in transit. The learned Subordinate Judge, Bankura, on appeal by the plaintiff firm, decreed the suit for a further sum of Rs. 810-3 as, mainly on the ground of the said Assessment Certificate for the deteriorated sugar of about 28 maunds, which causes the real difficulty in this appeal. The said certificate was taken as the basis of damage.

(3.) Parties came to the Court inter alia on the following relevant facts. It was a consignment of sugar of 200 bags, weighing 550 maunds, from Hatwa to Bankura, out of which 62 bags were found, at the time of taking delivery, wet by rain water and the sugar became discoloured. The Inspector's assessment of damages of the deteriorated stuff varied from 10 per cent to 25 per cent in respect of different quantities of bugs. The assessing Inspector was not examined, whereas another Inspector deposed that the plaintiff firm sold the damaged stuff mixed up with good stuff. Sri Basu particularly pleaded from the evidence of the plaintiffs witness that the damaged stuff was still then lying at their godown and that the discoloured sugar was sold at reduced rate during rainy season. He also pointed out that there was no evidence to show the condition of the goods when they were consigned or that the statements in the assessment certificate were accepted by the plaintiff.