PRABHULAL THAKUR Vs. INDIAN UNION

JUDGEMENT

(1.) DOES over-carriage of a partway wages containing suit consignment by the ordinary route accord-ing to ordinary train arrangements, amount to deviation on the facts and in the circumstances of this case in the main question involved in this appeal. The plaintiff is the appellant. The plaintiff filed the suit against the south Eastern Railway for recovery of Rs. 2867-6-9 for short delivery ot goods consigned in the circumstan-ces hereinafter stated.

(2.) ON March 13, 1957, 338, tins of (sic) were booked at Bankura Railways Station (West Bengal) to be delivered to the plaintiff at Jaiasow (sic) district in Orissa ). On march 19t 1953 the whole wagon, containing the said consignment reached (sic)the wagon, however, was not detached from the goods train. it is said that the driver and the guard refuses to detach the wagon on the plea that their duly, was (sic) and their relievers had not come. Any wan, the (sic) puted fact is that the wagon was carried up to (sic) rak. on March 23, 1957 the wagon returns to (sic)sore. On the same date delivery was made to the plaintiff. The plaintiff's case Is that there was a total shortage of 33 maunds, 33 seers and 12 chhataks vlaued at rs. 2867/6/ -. It is alleged that 39 tins suffered joint bursts and partly emptied; and 57 tins which also suffered joint bursts were entirely emptied with the consequence that the plaintiff suffered damages as (sic) The plaintiff filed this suit for recovery of damages. The Railway's defence is mat it was due to want of space at jalasore on March 19, 1957 that the wagon could not be detached from the goods train; that the consignment was booked at owner's risk; that the packing condition under the Tariff Rules was not complied with in that the tins were "old and used and weak soldering made to leakage in transit" as endorsed on the back of the ran-way receipts at the time of booking of the goods at (sic) kura Railway Station.

(3.) THE trial court decreed the suit in favour of the plaintiff on the finding to the effect that the wagon-could not be detached at Jalasore as the guard was over driver refused on the plea Wat their duty hour was over that the over-carrying of the suit wagon is as good as deviation from the route; that there was negligent of the part of the Railway. In appeal, trre learned lower appellate Court reversed the decision of the trial court and dismissed the plaintiff's suit on the finding that there was no negligence on the part of the railway. The con-current findings of both the courts are that the passage condition under the Tariff Rules was not property complied with and further that the goods were consigned at owner's risk rate. The plaintiff has filed this second appeal against the decision of the learned lower appellate Court who dismissed the suit.