KANYAKA PARMESWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiff is the petitioner in this civil revision directed against the judgment of the learned Subordinate Judge, Berhampur, exercising S.C.C. powers dismissing the suil against the defendant No. 1 and ex parte against defendants Nos. 2 to 4 in a S.C.C. Suit No. 256 of 1956 for damages alleged to have been caused to certain goods, --the total amount of damages claimed being Rs. 173/5/-.

(2.) The matter arose in these circumstances: On 22-9-1955 a, certain quantity of cotton piece goods worth over Rs. 1,015/-was consigned by the consignor, having been despatched from Ahmedabad on Western Railway for delivery to the plaintiff at Chatrapur on South Eastern Railway. On (15-10-1955 the goods reached Chatrapur Railway Station and are alleged to have been kept in the open platfrom there at the Station. On 9-12-1955 the plaintiff took delivery of the goods. At the time of taking delivery the plaintiff discovered the damage after opening the bale and found 150 pairs of Saris had been damaged, the total amount of damage being Rs. 173/5/- as aforesaid. On 27-1-1956 notice under Section 77 of the Railways Act is stated to have been given but the learned Subordinate Judge did not believe the plaintiff's story that notice under Section 77 was given to defendants Nos. 2 to 4. It is however in evidence that the plaintiff preferred claim in respect of the loss in question under Section 77 to the defendant No. 1 on 27-1-1956 (Ext. 3). There is no evidence to show that the claim was preferred to the other defendants. On 24-8-1956 notice under Section 80 of the Civil Procedure Code was also given (Ext. 4). On 14-12-1956 the present suit was filed being suit No. 256 of 1956 in the Court of the Subordinate Judge of Ganjam. In the written statement, the defence taken was a simple denial of the plaintiff's alleged claim for damages and it was pleaded in defence that there was no carelessness nor any negligence on the part of the defendants. At the trial before the learned Subordinate Judge, the plaintiff called two witnesses including P.W. 2 the Gumasta of the plaintiff who had been to the Chatrapur Railway Station and saw the goods having been drenched in rain on the platform. No witness was called on behalf of the defence to contradict the plaintiff's witnesses. The learned Subordinate Judge, apparently not being satisfied with the plaintiff's evidence as to the alleged claim for damages, dismissed the suit as aforesaid. Hence this revision.

(3.) Mr. H. Sen, learned counsel appearing for the plaintiff-petitioner, contended that there was unchallenged evidence adduced on behalf of the plaintiff. In fact, there was no specific denial made on behalf of the defendants that the goods were drenched. The circumstance that the Station master of Chatrapur Railway Station was not examined was commented upon. The learned counsel contended that there was gross negligence and misconduct on the part of the employees of the railway by reason of which the plaintiff suffered the damages as aforesaid. It was also argued on behalf of the plaintiff that the learned Subordinate Judge was wrong in holding that the plaintiff's case was an afterthought for which finding there was no evidence in support thereof. In the notice under Section 77 of the Railways Act (Ext. 3) it was alleged that the damage had been caused by water on account of misconduct, irregular administration and negligence of railway authorities. In the notice under Section 80 Civil Procedure Code (Ext. 4); it was also alleged that the damage was on account of water. The plaintiff also relied on Ext, 5 being the true copy of the Invoice showing the basis on which the claim was made. Then strong reliance was also placed upon the damage certificate (Ext. 1) showing that the damage had been caused by cyclonic rain water. It appears that although the goods had arrived on 15-10-1955 at the destination at Chatrapur, it was not until about two months thereafter on 9-121955 that the plaintiff took delivery of the goods. In fact the Railway Receipt was not taken delivery of by the plaintiff from the State Bank of India until long after 15-10-1955. The plaintiff failed to prove that the consignment reached Chatrapur Station in good condition and that the damage in question was caused while it was lying in that Station.