SHEIKH MAKBUL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is plaintiff's second appeal from a reversing decision of the learned Subordinate Judge, Balasore in Appeal No. 8 of 1956, whereby he set aside the decision of the learned Munsif and dismissed the plaintiff's suit against the Union of India, representing the appropriate Railway Administration mentioned in the plaint for alleged damages to a certain consignment of potatoes from Kanpur Central Station on the Northern Railway to Bhadrak Railway Station on the South Eastern Railway.

(2.) The facts shortly stated are these: On 5-7-1953, 251 baskets of potatoes were consigned from Kanpur for delivery at Bhadrak. The consignment was carried by the defendant Railway from Kanpur to Bhadrak. On 19-7-1953 the goods were delivered at Bhadrak in rotten condition as alleged. On arrival of the wagon containing the said consignment it was found, as alleged to be emitting foul and obnoxious smell and some watery substance was coming out from the crevices of the doors. On opening the baskets the potatoes were found deformed, rotten and unfit for human consumption. The plaintiff took the consignment delivery which was granted by the A. D. C. I. (Assistant District Commercial Inspector) of Cuttack in the presence of the Station staff at Bhadrak. The percentage of damage as mentioned in the damage certificate is stated to be much less than the actual loss. On 10-8-1953 the plaintiff gave notice of his claim under Section 77 of the Railways Act. Upon the Chief Commercial Superintendent by his letter dated May 8/12 1954 repudiating the plaintiff's alleged claim, the plaintiff gave notice under Section 80 of the Civil Procedure Code to the appropriate authorities of the said two defendant Railway Administrations who, while having acknowledged the receipt of the said notices, did not however settle the plaintiff's alleged claim. Thereafter on 29-9-1954 the suit was filed by the plaintiff against the defendants for recovery of Rs. 3,659-10-0 as alleged damages. The defendants filed their written statement in which they took the defence that the suit was barred by limitation; there was no delay in delivery; and that the goods having been consigned at owner's risk the defendants were not liable for the alleged damage. The learned Munsif decreed the suit in part for a sum of Rs. 1,923-4-0 against both the defendants who were jointly and severally liable to pay the decretal dues. In appeal, the learned Subordinate Judge in reversal of the said decision, dismissed the plaintiff's suit. Hence, this second appeal.

(3.) Mr. H. Sen, learned counsel for the plaintiff, contended that the Railway Administrations were negligent in having loaded the goods in a leaking wagon which was responsible for the damage caused to the goods. On this point the learned counsel relied on the Forwarding Note (Ext. A) which, according to him, showed that the goods were to be loaded in iron floor wagon at owner's risk to which effect there was an endorsement on the body of Ext. A. It appears, however, that there was another endorsement on Ext. A to the effect that the goods could be loaded in non-watertight wagon at owner's risk which was marked Ext. A-1. The plaintiff challenged the genuineness of the last mentioned endorsement in Ext. A-1. It was commented that the Ext. A-1 was a subsequent interpolation on the Forwarding Note while it was in the custody of the Railway Administration concerned. The insinuation was that this subsequent interpolation was made on the document in order to absolve the railway from liability for loading the goods in non-watertight wagons, because it was in evidence that the alleged damage to the consignment of potatoes was caused by the leakage of water in the wagon which carried the goods. It was contended on behalf of the plaintiff that unless there was anything mentioned to the contrary the wagon must be water-tight. In support of this contention the learned counsel relied on a decision of the Nagpur High Court in Dominion of India v. Rupchand Heerachand, AIR 1953 Nag 169 where it was held that the employees of a Railway Administration are guilty of misconduct if they do not provide proper type of wagons for the carriage of goods and cause unnecessary delay in transit. In the judgment the Nagpur High Court relied on a decision of the Patna High Court in Jamunadas Ramji v. East India Railway Co. Ltd. AIR 1933 Pat 630. The facts in the Patna case were that a consignment of 'ata', 'sooji' and 'basen' was damaged by rain water forcing itself into the wagon. It was held that this was due to the misconduct of the employees of the Railway Administration since it was their duty to provide against such ordinary contingency. It was further held that the fact that the rain water did enter the wagon and caused damage to the consignment was itself sufficient to hold that proper and requisite precautions were not taken by the Railway Administration to provide against such contingency. The learned counsel for the plaintiff also relied on the position that under the Tariff Rules potatoes have to be despatched in wooden floor and covered wagons with ventilators and the wagons are to be marked 'perishable' so that they should have priority of movement. Instead, when ordinary covered wagons were used it was all the more necessary, according to the plaintiff, for the Railway Administration to have taken particular care of prompt movement. The consignor is alleged to have presumably booked his goods evidently on the assumption that the goods would be carried within a reasonable time according to the Tariff Regulations and that wagons of right type would be provided. If the endorsement in the Forwarding Note Ext. A-1, permitting the railway to load the goods in non-watertight wagons, is found to be not genuine, then the Railway, is not protected because the evidence is that the goods got drenched in rain and it was the railway's risk not to have the goods loaded in watertight wagons. On this point the learned counsel drew my attention to the aspect that, as appears from order No. 26 dated February 21, 1956, the learned Munsif referred to the Railway Rules Goods Tariff Rules, No. 29, the Tariff Manual which initially had not been produced before him during the trial. Accordingly the trial was reopened to be heard on further materials as appears from the said order. Mr. H. Sen urged that the learned Munsif's finding, on the basis of the materials before him, should not have been disturbed by the lower appellate Court. As regards the selection of the wagon in which the goods were to be carried, the wagon must not be defective or leaky. The plaintiff alleged that the selection of wagon was due to the gross negligence and carelessness on the part of the employees of the Railway Administration, as it was found that the roof of the wagon was leaky and rain water trickled down through the leaky roof on the upper part of the baskets which were found moistened. A point was taken in the plaint that the wagon selected by the railway was quite unfit for carriage of goods of perishable nature in the monsoon season.