UNION OF INDIA Vs. RAM PRASAD PRAHLADRAI

JUDGEMENT

(1.) In this second appeal by the Union of India two questions have been raised by learned counsel for the appellant.

(2.) The first argument made by the learned counsel is that the Railway Administration was not bound to give open delivery at the instance of the plaintiff. According to learned counsel, seeking open delivery was unjustified and as such the Railway Administration was within its rights to sell the goods by public auction. The argument of the learned counsel appears to be well founded. There is no provision in the Railways Act or THE Rules authorising the consignee to claim open delivery or assessment of damages before delivering the goods In Union of India v. Gyani Ram AIR 1967 Patna 32, Manbhardayal & Co. v. Union of India AIR 1967 Patna 412, Union of India v. Jutha Ram AIR 1968 Patna 35 and Union of India v. Hukam Chand (AIR 1970 Madh Pra 55) it has been held that the consignor/consignee cannot claim open delivery or assessment of damage before delivery, as of right. If the consignee does not take delivery of goods alleged to have been damaged in transit or before delivery is given, he does so at his own risk and the Railway Administration would be justified in disposing of the goods by public auction, after due notice to the consignee, in accordance with the provisions of Section 56 (1) of the Railways Act.

(3.) The other contention raised by learned counsel for the Railway Administration was that all the intervening Railways should have been made parties to the suit and the suit should have been dismissed because the Southern Railway and the Western Railway were not made parties to the suit. In Jetmuli Bhojrai v. D.H. Railway, AIR 1962 SC 1879 (at p. 1885) their Lordships of the Supreme Court observed as under:- "Under Section 80 of the Railways Act it is for the consignor to establish, if he wants to sue a Railway Administration other than the one which booked the consignment, that the damage had occurred on its system. The contention seems to us to be correct. But where a consignor receives his consignment in a damaged condition from the delivering railway, the burden would shift to the delivering railway to show that the damage had not occurred on its railway. The burden could be discharged by showing that the consignment was already damaged before it was received by that railway. Here no evidence having been given on behalf of the D.H. Rly. on the point we hold that the presumption has not been rebutted."