UNION OF INDIA Vs. MATILAL AGARWALLA

JUDGEMENT

(1.) THIS appeal by the union of India representing the Railway administration relates to the claim of the plaintiff-respondent for damages on account of delay in delivery of 250 bags of rape seeds under the following circumstances.

(2.) A consignment of 250 bags of rape seeds (mustard) was booked by m/s. Jahar Mall Asoke Kumar from khori under invoice No. 1 R/r No. B 59/57045 dated 25. 5. 58 for carriage by railway to be delivered to the plaintiff as the endorsee thereof at Siliguri. The plaintiff is the purchaser of the goods for valuable consideration. According to the plaintiff the ordinary and usual time of transit from Khori to siliguri of such goods is about three weeks from the date of booking. The plaintiff asserted that owing to the negligence and misconduct of the servants of the Railway Administration one part of the consignment that is 100 bags weighing 270 mds. 20 srs. were delivered on 9th December, 1958 and the remaining part of 150 bags weighing 341 mds. 10 srs. were delivered on 27th December, 1958. The market price was Rs. 35/- per maund in the middle of November, 1958 when the consignment ought to have been delivered. The price however came down to rs. 23/- per maund on or about 8th december, 1958 and it further went down to Rs. 20/5/- on about 27th december, 1958. On the said allegations the plaintiff claims to have suffered a loss of Rs. 12/- per maund for 100 bags and at the rate of Rs. 14/11/- per maund for 150 bags. On account of the loss at the rate of Rs. 12/- the plaintiff claimed a sum of Rs. 2,730/- and on account of the loss at the rate of rs. 14/11/- the plaintiff claimed rs. 5,012/1/|9 and according to the plaintiff the said loss was caused due to the delay in delivery. The plaintiff also claimed some damages due to shortage of 12 mds. 13 srs. which was detected at the time of delivery. The appellant, however, has not challenged the said finding of the learned courts below that there was actually shortage of goods at the time when the same was delivered. The value of the shortage as was granted by both the courts below was Rs. 446/4/ -. The said sum has not been challenged here. After service of notice under section 77 of the Indian Railways act and under section 80 of the Code of Civil Procedure, the plaintiff filed a money Suit being Money Suit No. 113 of 1959 in the court of the Subordinate judge at Darjeeling. The learned subordinate Judge decreed the suit for the sum of Rs. 8,005. 84. Against the said judgment and decree the Railway administration preferred an appeal being Money Appeal No. 3 of 1961 in the court of the District Judge at Darjeeling. The learned District Judge affirmed the judgment and decree parsed by the learned Subordinate Judge.

(3.) BEING aggrieved by the said judgment and decree, this second appeal has been preferred by the Union of india representing the Railway Administration.