UNION OF INDIA Vs. HINDUSTAN LEVER LIMITED

JUDGEMENT

(1.) THE suit, which ulminated in this appeal, was instituted by M/s Hindustan Lever Ltd. , New Delhi (now the respondent and hereinafter referred to as the plaintiff) to recover Rs. 19,194. 80 from the Union of India (hereinafter referred to as the appellant) or in the alternative from the New Bahadurgarh Delhi Transport Company. Bahadurgarh (now Respondent 2 and hereinafter called the. Transport Company) or both as damages for the price of Vanaspati, which had been destroyed in the accident which had occurred on the night intervening 5th and 6th June. 1962, at the Railway level crossing No. 44 (hereinafter called the level crossing) located on the highway carriage road connecting Delhi with Rohtak between the Railway Stations Sampla and Kalanaur, together with Rs. 2,006. 38 as interest thereon at the rate of Rs. 9 per cent. per annum.

(2.) THE case of the plaintiff is that it manufactures vanaspati products. M/s. Hans Raj Om Prakash, Kalanaur (Respondent 3 ). M/s. Kalu Ram Subh Karan Sethia, Hansi (Respondent 41 and M/s. Ruli Ram Kishan Chand. Jind Mandi (Respondent 5) are the wholesalers of its goods. In compliance with their orders, it (the plaintiff) despatched tins of Dalda and Lotus, 780 in number of various sizes and weights, against Rs. 19. 194. 80, through the Transport Company to be delivered in proportion to the orders placed by them at the towns of Kalanaur. Hansi and Mandi Jind. The Transport Company arranged to despatch the said consignment in truck No. PNK-6084 and the said tins of vanaspati were loaded in that truck on June 5, 1962. The said truck started from Delhi, loaded with the aforesaid tins of vanaspati, for the aforesaid places at or about the fall of night. A conductor and a coolie had accompanied its driver. At about 12. 30 A. M. . the said truck approached the level-crossing. Since the sates of the level crossing were lying open on both sides, the driver continued driving the truck. When it (the truck) negotiated the level crossing, it was hit by the Down Flying Saucers goods train No. 138, and the said train carried it (the truck) to a distance of 1 kilometer. As a result of the said accident, the driver, conductor and coolie of the truck were killed, the truck was completely smashed and the tins were totally smashed and vanaspati was split and destroyed. Therefore, the plaintiff claimed the price of the vanaspati as damages and interest thereon, with the allegation that the aforesaid accident had taken place due to the negligence of the employees of the appellant, inasmuch as the gateman of the level crossing failed in his duty to shut its gates and the driver of the goods train failed to Pull out and drove it at a high speed. In the alternative, it was averred that if the driver of the truck was held guilty of negligence, the Transport Company be directed to pay the damages severally or jointly with the appellant. Interest pendente lite at the rate of 9 per cent, per annum as well as future interest at the same rate till realisation of the amount had also been claimed. The suit was instituted through Shri A. D. Moddie, who was the Principal Officer and Attorney of the plaintiff.

(3.) THE suit was contested by the appellant (the Union of India) and the Transport Company, each raising the main defence, besides raisins other pleas, that the accident had taken place due to the negligence of the servants of the other. Hence, the suit was tried on the following issues:-1. Whether the plaintiffs are a Public Limited Company with Shri A. D. Moddie as its principal officer ? (onus objected to ). 2. Whether defendant No. 1, the Union of India through any of its officers or servants committed negligence on the night between 5th June. 1962 and 6th June. 1962 at the time of the accident? (Onus objected to ). 3. Whether defendant No, 2 through any of its servants committed negligence on the night intervening between 5th June, 1962 and 6th June, 1962 at the time of the accident ?