UNION OF INDIA Vs. ENDUPUDI NARSIMHAM AND SONS

JUDGEMENT

(1.) THE unsuccessful railway defendants in the Courts below are the appellants. This appeal arises out of a suit filed by the plaintiff for recovery of a sum of Rs. 4875-19np. against the Central Railway, Bombay, Southern Railway, Madras and south Eastern Railway, Calcutta.

(2.) THE material facts are these: On March 16, 1958, Hyderabad Asbestas Cement products Limited, Hyderabad consigned 200 A. C. Sheets and 100 pairs of serrated ridges from Santanagar on Central Railway for delivery at Berhampur (Ganjam) on south Eastern Railway. The plaintiff belonging to Berhampur (Ganjam) purchased the goods through the State Bank of India at Berhampur (Ganjam) and released the Railway receipt and then wanted delivery of the goods. Admittedly the wagon containing the assignment was by mistake sent to Berhampur on Central Railway instead of the station of destination, namely Berhampur, Ganjam. It is said that the consignment was unloaded at Berhampur on Central Railway. After about 4 months the goods were again reloaded in another wagon. The original wagon in which the consignment was booked at Santanagar was Wagon No. SR 4863 which was unloaded at Berhampur on Central Railway. The goods were again reloaded in another wagon at Berhampur and the said wagon number is NR 63866. As a result of the goods having been carried by mistake to a wrong place there was delay. In fact the goods did not reach berhamputi (Ganjam) being the station of destination until July 17, 1958, that is to say, it took four months for the goods to reach Berhampur (Ganjam) from santanagar. At Berhampur (Ganjam) upon unloading it was found that some A. C. sheets were broken. It appears that even after reaching the station of destination at Berhampur (Ganjam) in July 1958 the goods remained untraced till the first week of September, 1958. At short intervals during the period from July 3, 1958 to September 6, 1958, the plaintiffs godown clerk had been presenting the railway receipt to the railway authorities at Berhampur Railway Station for taking delivery of the consignment. It was reported by the Station authorities that the said consignment had not yet arrived at the destination and endorsements were accordingly made by the station authorities on the railway receipt. It was not until September 7, 1958, that the Station master, Berhampur (Ganjam)wrote a letter (Ex. 3) to the plaintiff intimating that the consignment was unloaded on July 17, 1958, and asked the plaintiff to take delivery. It is said that on september 9, 1958, the plaintiff wrote a letter to the Railway authorities demanding open delivery. Again on September 17, 1958 the plaintiff wrote another letter (Ext. 6) to the Station master, Berhampur (Ganjam) stating that the railway should give open delivery of the goods free from demurrage. On October 14, 1958, the South Eastern Railway authorities at Khurda intimated to the plaintiff that the railway foregoes all demurrage and wharfage, but requested the plaintiff to take delivery under clear receipt. The plaintiff however did not agree to take delivery under clear receipt. On April 3, 1959. the plaintiff filed the suit for recovery of the amount claimed on the basis of total loss. It is said that during the pendency of the suit on January 22, 1960, the Railway again offered to give delivery on reasonable assessment provided delivery was taken within 15 days.

(3.) THE railway's defence to the suit, so far as relevant for the purpose of this appeal, is this: In view of the plaintiff's refusal to take delivery, the plaintiff has no right to sue assuming that there was loss or damage. The Railways deny negligence or carelessness in handling the goods and also deny any breakagte due to their negligence. The Railways further contend that the plaintiff having failed to prove the exact extent of damage suffered by him due to the railways' negligence, the plainitff is not entitled to claim any damage even if he proves that he suffered some damage. This in short is the stand taken by the Railways.