GOPI KRISHNA JHUNJHUNWALA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application by the plaintiff under Section 25 of the Provincial Small Cause Courts Act against the decision of the learned Small Cause Court Judge dismissing his suit for realisation of Rs. 205/127- as compensation for short delivery of 4 maunds 37 seers of sugar forming, part of a consignment of 110 bags. The consignment was despatched in two wagons, 80 bags in one and 30 bags in another. According to the plaintiffs case in paragraph 2 of the plaint when the consignment reached the destination station, three bags out of the full load wagon containing, 80 bags were found cut and slack and 4 mds. 37 seers of sugar was found short. To this effect was the evidence of the plaintiff himself. This fact was not denied either in the written statement or by railway's witness, the goods clerk at the Bhagalpur station. In my opinion, therefore, there is no doubt in this case that at the time the goods were unloaded at the destination station three bags of sugar were found cut and short in weight.

(2.) The learned Small Cause Court Judge has dismissed the plaintiff's suit on the ground that the Railway Administration concerned has discharged its onus of proving that it had taken as much care of the consignment as was required by a man of ordinary prudence. It is to be noted that the consignment was booked at railway risk rate. This fact was mentioned in the plaint itself and seems to be beyond any dispute. The learned Small Cause Court Judge has also stated this fact on the basis of the railway receipt (Exhibit C). I shall also note here one finding of the learned Small Cause Court Judge that in the railway receipt the note was that the loading and unloading was to be done by the consignor and consignee, that is to say, the loading was to be done by the consignor and unloading was to be done by the consignee. It is further in evidence of the clerk of the. despatching station, Chanpatia, that he noted the number of bags and the weight in the railway receipt according to what was mentioned in the forwarding note. I shall, therefore, assume for the purposes of this case in favour of the opposite party, as has been contended on its behalf, that the consignment was booked in this case by stating the clause "said to contain" in the railway receipt. Relying upon this finding, Mr. Bose for the opposite party contended that it was for the plaintiff to prove that the bags which were despatched were intact and uncut and there being no legal evidence to that effect, the plaintiff cannot succeed. He placed reliance in support of this contention on the cases of Dominion of India v. Firm Museram Kishunprasad, AIR 1950 Nag 85 and Union of India v. Lekhu Reddiar, AIR 1956 Mad 178 and two unreported decisions of this court in the cases of Jamunadas Agarwala v. Union of India, Civil Revision No. 573 of 1951, decided by Lakshmikanta, C.J., on 29-2-1952, and Madhusudan Das v. Union of India, second Appeal No. 1299 of 1957 decided by Mahapatra, J. on 10-12-1959.

(3.) The two unreported decisions of this court referred to above are cases of consignments booked at owner's risk. The reports of the Nagpur and Madras cases do not indicate as to whether the consignments dealt with in those cases were booked at owner's risk or at railway risk. The next point of distinction between these cases and this case is that in those four cases the shortage was in the number of packages and there was no question of any package found cut or pilfered at the destination station, but in the instant case three bags were found cut; number of the bags received at the destination station was as mentioned in the railway receipt and as said to have been despatched. That, in my opinion, brings about a clear distinction between the instant case and the facts of the other four cases. Although Suresh Prasad, the goods clerk of the despatching station, has said in his evidence that he did not examine the bags before loading, in my opinion that does not exonerate the railway from its liability of a bailee in a railway risk case. No provision in the Railway Act is there entitling the railway to cut this liability further -- the liability under Section 72 of the Railways Act which is that of a bailee by saying that the railway at the time of accepting the bags was not under an obligation to see the condition of the bags. Reference has been made to Rule 15 of the General Tariff Rules in the Nagpur case on which reliance has been placed before me also by Mr. Bose. That rule runs as follows: