E I RY CO Vs. SANIRAM JITMAL

JUDGEMENT

(1.) This is an appeal from a decision of Mr. B. K. Basu the District Judge of Burdwan dated 9 March 1928. In order to make it clear how the matter cam-) before that District Judge it is necessary to refer to the history of the case. The suit out of which the matter arises was brought by one Saniram Jitmal against the E.I. Ry. Co. and his claim was in respect of 61 bales of piece-goods which were sent on 10 May 1919 from Nagpur on the B. N. Ry. to be delivered to the plaintiff at Barakar, a station on the E. I. Ry. line. The goods in question were loaded in an E. I. Ry. wagon at Nagpur and the wagon was then sealed. The wagon was sent over the B. N. Ry. line as far as Asansol and there it passed into the charge of. the E I. Ry. Co. That company instead of forwarding it to Barakar apparently misreading the direction which was placed on the wagon sent it to Chitpur taking the address to be not Barakar but Barabazar. The Chitpur Railway Station is the joint property of the E.I. Ry. Co. and the E.B. Ry. Co. and upon arrival there it was found that the consignment had been tampered with; one bale was missing and of four bales there was only the gunny covering left. In effect therefore the plaintiff lost five bales of piece goods and he accordingly brought this suit against the E.I. Ry. Co. to recover the sum of Rs. 2,695-15-0 as damages together with a sum of Rupees 228-13-0 as interest making a total claim of Rs. 2919-12.0. The E.I. Ry. Co. resisted the claim mainly on two grounds : first of all, that the B.N. Ry Co. has not been made a party to the suit and secondly, that the notice as required by S.77, Railways Act of 1890, had not been properly served upon them. The suit was tried, or at any rate the judgment was given by the Subordinate Judge of Burdwan on 30 June 1922 and he made a decree in favour of the plaintiff for the sum claimed having found in favour of the plaintiff on the issues raised. Prom that decision of the Subordinate Judge of Burdwan the matter-was taken on appeal to the District Judge of Burdwan who was then Mr. P. B. Cammiade. The. defendants had appealed on two grounds; first of all that the Court below was in. error in holding that the notice under Secs.77 and 140, Railways Act, had been duly served on the defendant company's agent; secondly the Court below was wrong in holding that the loss of the goods had taken place while the wagon was in charge of the E. I. Ry. Co. The learned District Judge of Burdwan found that no claim had been made in accordance with law and that therefore the suit must fail. He also found that the plaintiff had been unable to establish that the theft of the goods took place, while they were in charge of the E.I. Ry. Co., that is the defendant company. In the course of his judgment he said that the Subordinate judge was wrong in saying that the wagon was re-sealed at Asansol and there was absolutely no evidence that the wagon was examined on its arrival at Asansole. If the wagon was tampered with between Nagpur and Dorgarparah the B.N. By. would be accountable for what was stolen on their line. The wagon was tampered with again while it was on the E.B. By. at Chitpur. Any theft that took place there would have to be accounted for by that railway. I fail to. see how the E. I. By, can be held liable for the loss of the goods.

(2.) He accordingly allowed the appeal and. dismissed the suit with costs. Thereupon the plaintiff appealed to this Court and his memorandum of appeal was presented on 27 June 1923. The appeal was heard by Suhrawardy, J., and. Graham, J., on 12 January 1926. It. is necessary, I think that I should refer to their judgment in some detail. They said: The plaintiff appeals against the decision of the District Judge of Burdwan dated 21 March 19 23 dismissing His suit against the railway company to recover Rs. 2,919-12-0 under the following circumstances.

(3.) And then they set out the circumstances under which the goods were consigned. They then said: On 10 May 1919 the plaintiff consigned 61 bales of piecegoods to Barakar station in the defendant company's line. He obtained delivery of the goods on 9 June 1919. Before obtaining delivery he found that the contents of four bales were short and that one bale was missing. He thereupon on 4 June 1919 sent a registered notice to the Agent of the Company of the loss. He sent several letters to the Divisional Traffic Superintendent, the District-Traffic Manager and the General Traffic Manager with reference to his claim. On 12 September 1912 he wrote another letter to the Agent of the defendant company and the third letter was also written to the Agent on 18 September 1919.These three letters to the Agent are numbered 1, 4 and 6 and they are respective Exs. 4, 10 and 13. The plaintiff's case is that out of 61 bales he got delivery of 56 whole bales. He did not get delivery of one bale and of the remaining four bales he found that they were tampered with and portions of the goods abstracted therefrom. He therefore claims from the company Rs. 2,695-15-0 the price of the goods lost and the balance as interest on that amount.