JUGAL KISHORE BHADANI Vs. UNION OF INDIA

JUDGEMENT

(1.) Consequent upon nondelivery of a part of a consignment booked for carriage by the railway, the plaintiff consignee, who is the appellant before us, instituted the suit for recovery of damages from the defendant, attributing loss of the undelivered part of the consignment to negligence and misconduct of the railway administration or their servants.

(2.) The material facts which are not in dispute before us are these: On the 2nd November 1949, the entire contingment which consisted of 41 bales of cloth was duly loaded at Wadibunder in a through wagon (No. N. W. R. 4223) for carriage to and delivery at Gaya in forms of railway receipt No. 9494/20, dated the 1st November 1949, The consignor did not, however, pay the freight at the ordinary tarrif rate, but booked the consignment at a special reduced or owner's risk rate, limiting the general liability of the railway administration of that of a bailee by executing risk notes in Forms 'A' and 'Z', whereby the railway administration was relieved of all responsibility for loss, destruction or damage to the goods or any part thereof arising from any cause whatsoever, except upon proof of misconduct on the part of the railway administration or its servants. The wagon in question reached Igatpuri, where it was found intact by R. M. Kharkar (D. W. 8), the Guard travelling on the goods train in question between Igatpuri and BluisavaL The train left Igatpuri at 21.05 hours on the 3rd November 1949 and it reached Bhusaval on the following morning at 6 a.m., when on checking the train, the Guard found that the right hand side door of the wagon was open and although the seal on the left hand side door was intact, there was no rivet on it. Accordingly, the wagon was detached from the train at Bhusaval and placed in the checking shed where the contents of the wagon were checked on the 6th November 1949 by the Checking clerk (D. W. 1), in the presence of the Watchman (D. W. 9). As a result of the verification made by them, it was found that 5 bales forming part of the consignment in question were missing. The wagon was thereafter re-sealed and riveted and despatched to Gaya, where it arrived on the 16th November, 1949. On the 18th November, 1949, the Goods clerk (D. W. 7) of Gaya railway station delivered the remaining 36 bales to the plaintiff, in whose favour the railway receipt had been duly endorsed by the consignor. Thereafter the plaintiff preferred his claim under Section 77 of the Railways Act, and ultimately he received a letter (Ex. 10/a), dated the 2nd December, 1950, from the Chief Commercial Manager of the then East Indian Railway, whereby he was informed that from enquiries made by the railway authorities, it transpired that the part of the consignment was lost "due to a Running Train theft between Nandgaon and Bhusaval over the G. I. P. Railway, a circumstance beyond control of the Railway Administration". The plaintiff, however, did not consider the reply from the railway authorities to be satisfactory and served a notice (Ex. 4) under Section 80, Code of Civil Procedure, upon the General Manager of the East Indian Railway and instituted Money Suit No. 12 of 1931 against the defendant on the 18th January, 1951 before the expiry of the period of sixty days contemplated by Section 80, Code of Civil Procedure. That suit proceeded to trial before the 4th Additional Subordinate Judge of Gaya, who by his order, dated the 6th May, 1952, permitted the plaintiff to withdraw the suit with liberty to sue afresh, and then the present suit was instituted by the plaintiff on the 12th May, 1952.

(3.) The defendant contested the claim of the plaintiff on the ground of limitation and also on the ground that there was no negligence or misconduct on the part of the railway administration or its servants, since the consignment which had been booked at owner's risk had been subjected to theft in running train between Pachoura and Bhusawal, under circumstances beyond the control of the railway administration.