DALPAT SINGH Vs. U O I

JUDGEMENT

(1.) THIS is an appeal against the Judgment dated 5. 5. 81 by which suit of the plaintiffs Dalpat Singh and Virendra Singh against the respondents was dismissed for claim of Rs. 13,125/ -.

(2.) AS stated above, the suit was filed by plaintiffs Dalpat Singh and Virendra Singh alleging therein that plaintiff No. 2 was working as Manager in the Tea Estate in West Bengal for the last twenty years and after he left the service in the month of january 1974, plaintiff No. 2 booked 72 packages of house-hold goods from Binnaguri Railway Station no North Frontier Railway to be carried to Bhilwara on Western Railway via Lacknow, Agra, Achnera and Ajmer route vide invoice R. R. No. 083034 dated 9. 1. 74 in wagon No. N E 51642. The above wagon was loaded on 9. 1. 74 at the above station in the presence of plaintiff No. 2's servants and his ASsistant manager Sh. A. S. Maroo before the then ASsistant Station Master and his staff at Binnaguri. The gates of wagon were locked on both the sides by different size of big padlocks and were wrapped with cloths, stitched and sealed with wax by the plaintiff No. 2 before the ASsistant Station Master, Binnaguri Railway Station. Thus goods were to be received by plaintiff No. 1 who was the elder brother of plaintiff No. 2 and the plaintiff No. 2 is the owner of the goods whereas plaintiff No. 1 was only person who was to receive the goods obviously on behalf of plaintiff No. 2. According to the plaintiff, the above wagon no. NE 51642 reached at Bhilwara on 14. 2. 74 after very long time. Plaintiff No. 1 was called by Railway staff who had the keys of the wagon and the same was opened in his presence on 14. 2. 74, upon which it was found that locks of the rear side of the wagon was missing and the seals were found tampered with. On opening the gate of the wagon the goods were found disarranged and half of the wagon was found empty. The packages were unloaded on the platform, they were found short of eighteen packages. Out of 72 packages 54 packages were received at the destination station. The plaintiff submitted a list of 72 packages. The plaintiff also stated in the plaint that list of missing packages were submitted to the Station Master, Bhilwara on 15. 2. 74 by the plaintiff No. 1. It is also submitted that Station Master, Bhilwara gave certificate dated 2. 3. 74 certifying the short delivery of 18 packages. The plaintiff in his plaint gave details of the articles which were found missing an valued the above goods which is Rs. 10,500/- only. The plaintiff No. 1 submitted a claim for the short delivery of goods alongwith a list of short packages with valuation to the Station Master Bhilwara on 11. 3. 74. Thereafter the plaintiff served a notice under Sec. 78-B of the Railways Act on the defendants Railway Administration through their counsel on 18. 5. 74 which was received by plaintiff, but since the defendants failed to make payment of the above amount on lost goods booked at Binnaguri Railway Station, therefore the present suit was filed by plaintiffs for grant of decree for Rs. 13,125/- alongwith interest @ Rs. 1/- per cent and also claimed the cost of suit.

(3.) AFTER hearing the arguments, trial court, dismissed the suit of the plaintiff. It was held by the trial court that the plaintiff failed to prove the value of goods while deciding issue No. 4 and on the basis of decision given on issue No. 3 held that plaintiff failed to prove which 18 packages were missing and it was also found that rivet and seal were found intact. In view of the decision given on issue No. 5, trial Court held that in view of Sec. 77-B, plaintiff is not entitled for value of item nos. 3,4 and 5 and thereafter dismissed the suit of the plaintiff.