UNION OF INDIA Vs. LACHHI RAM GURDAYALMAL

JUDGEMENT

(1.) THIS is an appeal by the Union of India representing the Western Railway Administration, Bombay, against the judgment and decree of the Civil Judge, bhilwara dated the 10th December, 1954, decreeing the plaintiff-respondents' suit for damages for an, amount of Rs. 7391-2-9 with costs and interest. The appeal initially came up for hearing before a Single Judge. The learned Single Judge having regard to the intricate nature of the questions involved in this appeal relating to the nature and extent of the liability of the Railway Administration under Section 72 read with Sections 47 and 54 of the Railways Act and the conflicting state of case-law thereon and other circumstances referred the case to a Division Bench and consequently the case has come before us.

(2.) THE facts leading to the appeal are these. The plaintiff Lachiram Gurdayal Mal, a joint Hindu family firm trading at Shahjehanpur having obtained permit marked ex. 21 for the export of 2000 maunds of Lauta Gur from Garewganj to Sareri (Shahjehanpur--Rajputana) consigned on 26th and 27th of June, 1945, 1974 parties of Lauta Gur by three consignments detailed in para 1 of the plaint from carewganj on O. and T. Railway to Sareri on B. B. and C. I. Railway to self. It may be mentioned here that the plaintiffs have not stated in the plaint as to when the goods reached the destination station Sareri and when they learnt of the same but it appears from the defendant's written statement that the consignment reached on the 2nd, 3rd, and 4th of July, 1945. The plaintiffs' agent Chandrabhan, however, went to the Railway Station Sareri on 8th July, 1945 to obtain delivery. Chandra Bhan found (1) that the goods of all the three consignments were lying uncovered on the open platform, although July was a Monsoon month and there was tin-shed godown on the station; (2) that the goods were badly soaked in rain water; (3) that about half of the quantity of the said goods was washed away in the rains as they were not covered ever since the consignments were unloaded by the Railway. According to the plaintiffs there were heavy rains at the Sareri railway Station from 5th to 7th July, 1945, which were responsible for the condition of the goods noticed by the plaintiffs' agent. The plaintiff's agent wanted delivery after weighment and after ascertaining the extent of damage and noting the same. But the Station Master, Sareri having not agreed to deliver goods in this manner the plaintiffs were telegraphically informed by the agent. Shamlal, one of the Karta of the plaintiffs' firm and his Munim Parmeshwar Dayal thereupon reached Sareri on 17th July, 1945. It was noticed by him that "even after the happenings upto 7th July, 1945, the station staff at Sareri did not cover the goods and did not take any precaution to protect them'' and "as a result thereof the consigned goods had further dwindled away owing to the rains and the quality had also much deteriorated. " the plaintiff Shamlal also made a request to the Station Master ''to deliver the goods alter weighment and upon qualified remark as to condition but he refused to do so. " He thereupon wanted to send telegrams to the District Traffic superintendent, B. B. and C. I. Railway Mhow and the Chief Traffic Manager B. B. and C. I Railway, Bombay, but the Station Master did not accept the telegrams. He accordingly went to Shahpura and sent telegrams to the authorities named above. In the meanwhile the goods were removed to the Goods Shed on 22nd July, 1945. According to the plaintiffs, there was continuous correspondence between the plaintiffs and the Chief Traffic Manager, who eventually by his letter dated 1st september, 1945 informed the plaintiffs that the delivery of the goods might be taken by them "after weighment on qualified remark as to condition of the goods. " in the meanwhile the goods having become rotten in the extreme, the plaintiffs replied to the Chief Traffic Manager, Bombay that the delivery would be taken if the shortage be certified by an authorised and responsible officer and the fitness of the goods for human consumption is certified by medical authority. The Chief Traffic Manager, however, did not give any reply to the plaintiffs' letter and an the meanwhile whatever goods had remained were auctioned and despite plaintiffs' request they were not apprised of the quantity Bold. Attributing gross negligence and misconduct to the defendant Railway and its officials in the matter of handling the goods and consequently loss to them, they claimed the following damages : Rs. 6843-9-3 on account of price of 1000 maunds of Lauta Gur; Rupees 1368-11-3 on account of reasonable profit of 20 per cent; Rs. 523-14-0 on account of interest on the blocked capital. After serving on the Railway administration a notice under Section 80 C. P. C. , a suit was eventually brought in the Court of the Sub-Judge, First Class Railway Lands in Rajputana Jurisdiction, ajmer, on 22nd August, 1946. The defendant resisted the plaintiffs suit. It was stated that three consignments reached Sareri on 2nd, 3rd and 4th July, 1945, and were actually unloaded by the plaintiff's agent Chandra Bhan on their actual dates of arrival, and that Chandra Bhan took tarpaulin from the Station Master and covered the goods. It was asserted that Chandra Bhan did not approach for taking delivery of the consignments presumably as he did not get an import permit from the Shahpura state for which he went on trying. The allegations about the condition of the goods in para 3 of the plaint were denied and it was further asserted that as the plaintiff's agent went on assuring the Station Master that he would take delivery of the consignments shortly, the goods were allowed to remain covered by only one tarpaulin up to 16th July, 1945. But on that date two more Tarapaulins were supplied to the plaintiffs' agent to cover the consignments. The defendant did not admit that there were heavy rains at Sareri from 5th to 7th July, 1945 and, that the plaintiffs' agent wanted delivery even on conditions. On the other hand, the defendant pleaded that the plaintiffs' agent deliberately did not take delivery, and was responsible for the delay in obtaining delivery. The defendant also denied the allegations about the Gur having become rotten and contended that the conditions mentioned in the plaintiffs' reply letter dated 5th september, 1945, addressed to the Chief Traffic Manager, were illegal and meant only to while away time. The defendant admitted that the goods were auctioned but pleaded that the auction was made under Section 56 of the Indian Railways act, as the plaintiffs failed to take delivery. The defendant also pleaded that he was amply protected by Risk Notes A and B and as the owners declared weight was accepted correct, the defendant was not liable. On these pleadings the trial court framed as many as 15 issues, as detailed below:

(3.) IT will be useful to briefly summarise the findings of the trial Judge on the various issues. Issue No. 1 relating to the permit for export of Gur from Carewganj and Issue No. 11 relating to the necessity of a permit for importing Gur from shahpura were decided in the plaintiffs' favour and it was held that the plaintiff had a permit for exporting Gur to Shahpura and that there was no necessity for permit from the Shahpura Government for importing Gur into Shahpura. As regards Issue No. 2 the learned Judge found that the goods in dispute were got unloaded by Shri Kalyan Singh, Station Master through the Railway porters and that Chandra Bhan, the plaintiffs' agent did not get them unloaded. Deciding issue no. 4, in favour of the plaintiffs it was held that there were rains at Sareri between the 5th and 7th July, 1945. Dealing issues Nos. 3, 6 and 9 together the the learned judge held that the Railway staff did not take care to keep Gur on stone slabs or sleepers but merely kept on the open platform and did not cover it although the month of July was a Monsoon month; and that in consequence the gur was drenched in water and was washed away; and that the defendant was guilty of misconduct and negligence in not taking proper and due precautions as required by Section 72 of the Railways Act. As regards issue No. 8, the trial Judge observed that the plaintiffs were entitled to claim certificate regarding shortage of goods and fitness for human consumption. Issues Nos. 5 and 7 were considered simultaneously and the trial judge held that the Station Master having refused to give delivery after weighing the goods and making a note about shortage the defendant will be liable for the plaintiffs' loss. The implication clearly is that the plaintiffs were justified in refusing delivery except on their condition. As regards Issues Nos. 13 and 14, the trial Judge found that the plaintiff had succeeded in proving that the Gur was 1000 maunds and that the Railway having realised freight on that quantity and having failed to establish that the Gur was of lesser quantity the defendant cannot escape liability. Issue No. 12 was also decided in the plaintiffs' favour and it was held that the defendant was not justified in auctioning the Gur but should have arranged delivery to the plaintiffs after making enquiry as to the shortage. As regards the extent of damages the trial Court-found that in the figure of Rs. 6,843/9/3 claimed by the plaintiff as the price of Rs. 1000 maunds of Lauta gur Rs. 250/-were included on account of the expenditure incurred in obtaining an extension of the permit, and the plaintiff was not entitled to this amount. He, therefore, allowed Rs. 6593/9/3 as the price of Gur, Rs. 273/11/9 on account of profit and Rs. 523/14/on account of interest, the total being Rs. 7,391-2-9. On these findings the trial judge decreed the plaintiffs' suit for Rupees 7391/2/9. The defendant being aggrieved by the decree of the trial Judge filed the present appeal.