BIRDHI CHAND Vs. DOMINION OF INDIA

JUDGEMENT

(1.) This is a plaintiff's second appeal against the reversing judgment dated 30-1150 of Sri A.R. Guru Addl. District Judge of Cuttack, arising out of a suit for recovery of damages to the extent of Rs. 1157/2/6 on account of loss of oil from out of the consignment which passed through the railways of the defendant. The consignment consisting of 533 drums of oil was booked from Aligarh Junction to Cuttack on 28-3-1947 and it reached Cuttack on 8-4-1947. The plaintiff's version is that at the time of taking delivery of the drums it was found that 56 drums were found to have cut-holes on the top of them and there was shortage of 12 maunds and 6 1/4 seers. The plaintiff bases his case for the shortage on account of the misconduct on the part of the railway administration as will appear from the cut- holes which must have been deliberately bored by the employees of the defendant.

(2.) The defence is that in fact at the time when the consignment was delivered to the plaintiff there were no cut-holes to be found on any of the tins; but nevertheless there was shortage of oil by 12 maunds 6 1/4 seers, which was due to mere leakage of the drums on account of bad packing. The consignment was carried after execution of Risk Notes "A" and "Z" on 27-3-47. The railway administration further asserts that there was no misconduct on the part of the employees of the administration, and further that on account of the execution of the Risk Note (A) it is exonerated from the liability for shortage due to leakage on account of bad packing.

(3.) The Additional Subordinate Judge, who tried the suit, found the shortage to be a case of pilferage by the employees of the administration concerned and drew adverse inference against the railway administration for not making a full disclosure as to how the consignment was dealt with during transit. A full decree was accordingly passed in favour of the plaintiff. It is to be noted here that the learned Addl. Subordinate Judge came to the conclusion of pilferage solely on the ground that such a heavy measure of oil as 12 maunds 5 1/4 seers could not possibly be short on account bf mere leakage.