UNION OF INDIA Vs. PRADIP LAMP WORKS

JUDGEMENT

(1.) This appeal has been filed by the Union of India, as owner of Eastern Railway Administration, the defendant in the suit instituted by the plaintiff -respondent No. 1. The litigation has had a chequered career and the appeal is directed against the decree passed by the Court of appe al below after a remand by this Court in Second Appeal No. 396 of 1961, by Judgment dated the 26th November, 1962.

(2.) The facts are as follows. The Plaintiff -respondent filed a suit on the 27th February, 1969, claiming Rs. 3,600, which Included the price of a consignment of goods valued at Rs. 3,500 despatched by rail. According to the plaintiff, Messrs. J. C. Banerjee and Sons of Calcutta had booked 16 cases of glass tubings from the Kidderpore Dock to Patna City on the 24th July, 1957. It was alleged in the plaint that this consignment had not been delivered to the plaintiff due to gross negligence, misadministration etc. The plaintiff is said to have served notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, and because the Railway had not paid the plaintiff compensation, this suit had to be instituted. It was mentioned in the plaint that the cause of action had arisen on the 24th July, 1957 and on or about the 24th August, 1957, when the consignment ought to have been delivered to the plaintiff. It was also mentioned that the cause of action had finally arisen on the 22nd July, 1958, when the plaintiff's claim had been refused by the Railway authorities. The defendant -appellant resisted the plaintiff's claim on several grounds, the principal ground being that the plaintiff's consignment had been damaged by an explosion, which had occurred in wagon No. NR 34790. The plaintiff's goods were being carried in wagon No. ER 63132. According to the contesting defendant, all possible steps had been taken for protecting the plaintiff's consignment, but the consignment could not be saved fully. The plaintiff's goods were salvaged to whatever extent possible and they were sent to the destination, i.e., Patna City. [These salvaged goods had reached Patna City on the 12 January 19583. It was further pleaded that in view of Section 75 of the old Indian Railways Act, read with schedule 2, no liability fell on the Railway administration, because the plaintiff's consignment had contained goods falling within Schedule 2, for which no declaration had been made in accordance with Section 75.

(3.) On trial, the first Court held that the plaintiff's consignment had been destroyed as a result of fire which had broken out in wagon No. NR 34790, which was beyond the control of the Railway administration and its employees. Thus the contesting defendant was exonerated from liability and the plaintiff's suit was dismissed. On appeal to the Court of appeal below, the decree was affirmed and the suit stood dismissed Then, the plaintiff came up to this Court in Second Appeal No. 396 of 1961 It appears from the Judgment of this Court that the substantial point that was argued here was that the finding of the Court of appeal below to the effect that the plaintiff's goods in wagon No. ER 53132 had been destroyed as a result of fire, which had broken out in wagon No. NR 84790 was vitiated by non -consideration of the relevant materials on record, and this point was accepted by this Court. The appeal was remanded to the Court of appeal below for re -consideration of the appeal with the following directions: