VISHUN PRASAD BHADANI Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal by the plaintiff. The short facts are these: On the 1st of September 1948, one hundred bags of Sugar were consigned to the plaintiff at Gaya. The consignment arrived at Gaya on the 11th of September 1948 and it was unloaded by the railway staff on that date. On the 12th of September 1948, the agent of the plantiff went to take delivery of the consignment and, after paying freight, etc. obtained gate pass to take away the one hundred Bags of Sugar from the railway goods godown. Since, however, the gate pass was given late in the evening, the bags could not be removed from the railway goods godown on that date, and they remained in charge of the railway employees for which the railway charged wharfage from the plaintiff's agent, which was duly paid. It is alleged that the bags were kept in an open shed, and as unfortunately there was rainfall on the night between the 12th and the 13th of September 1948, some of the bags of sagar soaked with rain water and were damaged. On the next day, that is, on the 13th of September, 1948, when the agent of the plaintiff went to take delivery of the Sugar, he found that forty bags had been damaged. The plaintiff was informed and he came to the railway station and found forty bags drenched with rain water and heavily damaged. He took delivery of only sixty bags of sugar and declined to take delivery of the above forty bags which remained with the railway administration. After correspondence with regard to the matter in question and service of notices under section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure, the plaintiff instituted a suit for recovery of a sum of Rs. 4,637/8/- as damages caused to the above forty bags of sugar against the Union of India as owner of the East Indian Railway.

(2.) The suit was contested by the defendant on various grounds, but the only grounds with which I am concerned in this appeal now are that the goods were kept under proper cover and the railway employees were not negligent, that the defendant was not to pay any damages and that the plaintiff should have taken delivery of the damaged bags. It appears that on the 11th of June, 1949, the above forty bags of sugar were sold at auction by the railway administration for Rs. 2,070. The railway authorities claimed a sum of Rs. 1,904, as wharfage for keeping the bags of Sugar in their custody. The defendant, therefore, pleaded that the plaintiff could get the price of Sugar after deducting the wharfage so charged and the defendant was willing to pay the same.

(3.) Both the courts below held that the railway employees were negligent in causing damage to the bags of sugar and the railway administration was liable to pay damages. They also held that the railway administration was entitled to wharfage from the 13th of September 1948, till the llth of April, 1949, and the amount of wharfage according to the decision came to be Rs. 1,433/14/6. The trial court however, decreed the suit for a sum of Rs. 818/1/6 only. According to it, the plaintiff, was entitled to the sum of Rs. 2,070, being the price at which the forty bags of Sugar were sold at auction from which a sum of Rs. 1,433/14/6 had to be deducted as wharfage. After deducting that amount of wharfage, the amount due came to he Rs, 636/1/6 to which were added a sum of Rs. 116 being the excess wharfage recovered by the railway administration and a sum of Rs. 66 as being pendente lite interest. Thus the total amount decreed was Rs. 818/1/6. The lower appellate Court however, held that the plaintiff was entitled to the price of sugar at the rate of Rs. 28 per maund. It may be noted that the forty bags of sugar when weiged came to be about 111 maunds 10 seers. The price of the same at the rate of Rs. 28 per maund amounted to Rs. 3,115. Deducting from the above amount a sum of Rs. 1,433/14/6 the wharfage charge referred to above, the lower appellate court gave a decree to the plaintiff for a sum of Rs. 1,681/1/6. The plaintiff still being dissatisfied with this decree has presented this appeal in this Court.