ORIENT PAPER MILLS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree passed by the learned Subordinate Judge, Sambalpur, dismissing the appellant's suit against the respondent for damages to the tune of Rs. 10.729.66 paise with costs and future and pendente lite interest, The case of the appellant was that a consignment containing a caustic soda lve in tank wagon No. CR-43595 was booked under invoice No. 31. R.R. No. 145457 dated 18-8-1969 by the consignor Jayshree Chemicals Ltd. and the wagon was loaded at the private siding of the consignor at Ganiam. This consignment was placed at the siding of the appellant-company on 23-8-1969 and it was found to be completely empty. The wagon was without any seal and label. The non-delivery of the entire caustic soda lve was, according to the appellant, due to the gross negligence and misconduct of the railway administration and after protracted correspondence with the railway administration claiming damages without any result, the suit was instituted for the aforesaid claims. The respondent denied any negligence or misconduct on the part of the railway administration and their servants and pleaded that the consignment of the tank wagon was loaded at the consignor's private siding not supervised by any railway staff after due repairs to the wagon and the same was handed over to the appellant (consignee) at the private siding of the appellant with the seal intact and therefore, the railway administration incurred no liability. On these pleadings, issues were framed and the parties went to trial and led oral and documentary evidence. Four witnesses were examined for the plaintiff-appellant and the respondent had examined one witness. The trial court was of the view that the onus lay on the appellant to establish the actual loading of the goods for the loss of which the claims had been made. After a discussion of the evidence in this regard, the trial court did not accept the case of the appellant about the loading of the goods in the wagon. The learned Subordinate Judge has taken notice of Section 76-C, Railways Act and held, with reference to the principles laid down in (1972) 2 Cut WR 1187. Union of India v. Straw Products Ltd., Jaykaypur, that the liability of the railway is over the moment the wagon is placed at the private siding of the appellant. Notice has been taken of the fact that no immediate intimation had been given that the wagon had no seal and label after the wagon was placed at the private siding of the appellant. According to the trial court, there was no evidence from the side of the appellant that the seal and the label had been damaged or tampered with at the time the wagon was placed at the private siding of the appellant. Reference was made to the principles laid down by this Court in AIR 1965 Orissa 4, Union of India v. Cuttack Cycle Supply and Co. and by Madras High Court in AIR 1956 Mad 176. Union of India v. S.P.L. Lekhu Reddiar and it was held that in the circumstances of the case, the respondent could not be saddled with any liability. Thus the plaintiff's claims were disallowed.

(2.) Mr. Basu, appearing on behalf of the appellant, has contended, with reference to the relevant oral and documentary evidence, that the findings recorded by the trial court against the appellant both with regard to the loading of caustic soda lve at Ganiam and with regard to the appellant's claim that at the Brajarajnagar siding of the appellant, the seal of the wagon was not intact and the wagon was empty are incorrect and unfounded and that an unreasonable view has been taken by the trial court. Mr. Pal has referred to the same decisions on which reliance has been placed by the trial court and has submitted that the findings recorded by the trial court are factually well founded and legally sound.

(3.) The admitted case of the parties to the suit was that the loading of caustic soda lve had been done at the consignor's private siding without the supervision of the railway staff and the consignor had put its seal at the top of the railway seal card. This would appear from the evidence of P.W. 1, and employee of Jayshree Chemicals and D.W. 1 a railway employee. As has rightly been noticed by the trial court. Exts. 1 to 3 which were the entry in the ledger of the consignor, the issue of gate passes and the entry in the siding log book would not, by themselves establish the case of the appellant that the tank wagon had been loaded with caustic soda lve. As has been submitted at the Bar, the only oral evidence led from the side of the appellant with regard to the actual loading was that of P.W. 1 and he had testified: