UNION OF INDIA Vs. KHETWAT OIL MILLS

JUDGEMENT

(1.) This appeal is directed against the judgement of the learned Subordinate Judge, Baripada, passing a decree in favour of respondent No. 1 for a sum of Rs. 17,260.10 claimed as compensation for shortage of goods in transit with the appellant.

(2.) The case of respondent 1 (plaintiff) is that it is a registered partnership firm having its oil mill at Baripada. It purchased 160 bags. of mustard seeds, each bag weighing 85 kg., from Ambelal Madhab Das and Co. of Raja Bazar, Unjha, in Gujarat at the rate of Rs. 254/- per quintal inclusive of taxes and incidental charges as per beejuck dt. 15-9-1973 (Ext. 1), the total price being Rs. 34,091-00. The plaintiff's agent delivered the aforesaid 160 bags to the Western Railway (respondent 2) at Unjha Railway Station for transport on rail to Baripada Railway Station within the jurisdiction of the South Eastern Railway (respondent 1). The goods were booked under invoice No. 27 and railway receipt No. 351708 dt. 15-9-1973 at the railway risk rate, the consignor and the consignee of the consignment being the plaintiff's vendor Ambelal Madhab Das and Co. The goods were loaded being duly packed in gunny bags and were kept within the wagon properly secured with dunnage under the supervision of the plaintiff's agent and the employees of the Western Railway posted at Unjha Railway Station. The plaintiff's vendor endorsed the railway receipt in the name of the former and sent the same through the State Bank of India which was released by the plaintiff on full payment of the price of the consignment. On 7-11-1973 at the time of taking delivery of the consignment, it was found that out of 160 bags of mustard seeds, only 90 bags were available inside the wagon, the rest 70 bags missing. Out of the 90 bags, a few were torn and loose and a part of the contents missing or otherwise damaged, Therefore, the plaintiff was forced to take short delivery of the consignment, the shortage being estimated at 60 quintals and 34 kgs. of mustard seeds. A shortage certificate (Ext. 3) was granted by the employee of the South Eastern Railway at Baripada Railway Station. It is averred that the shortage occurred on account of the negligence of the railway in dealing with the consignment while on transit, as a result of which the plaintiff sustained loss. In order to recover compensation, notices under S.78-B of the Indian Railways Act (Exts. 4 and 4/a) (hereinafter referred to as 'the Act') and under S.80 C.P.C. (Exts. 7 and 7/a) were served on the Chief Commercial Superintendent (Claims) and the General Manager of the South Eastern and Western Railways which were duly received and acknowledged by them. As the claim was not settled, the plaintiff claimed the price of the goods lost in transit, price of the gunny bags and the proportionate railway freight, all amounting to Rs. 17,320.10, as per the statement in Schedule 'B' of the plaint.

(3.) The suit was contested and written statement was filed by the South Eastern Railway (defendant 1 - appellant). It was stated that the suit was hit by S.69(2) of the Indian Partnership Act. The plaintiff had no title in the goods. Whatever goods were loaded by the sender were delivered to the plaintiff and so the South Eastern Railway was not responsible for any loss. Statutory notices under S.78-B of the Act and 80 C.P.C. were not served on the railway. The claim was also exaggerated.