NATHUNI RAM Vs. SECYOF STATE

JUDGEMENT

(1.) The Plaintiffs in the suit out of which this second appeal has arisen brought some machinery, including an engine, for use in a mill from a firm in Calcutta, Balmar Lawrie and Co., who delivered the machinery to the East Indian Railway at Howrah for despatch to the plaintiffs at Giridih after executing a risk note in form B. The goods were consigned to the sender and the railway receipt was sent to a bank endorsed in favour of the plaintiffs who were to get it on payment of the balance of the price of the machinery due from them. The engine and another part of the machine were loaded on a truck at Howrah on 15 February 1929.

(2.) It is not known when the truck reached Asansol, but at 2 p. m., on 19th February while it was in the goods yard, the load which it contained, consisting of about a hundred packages besides the engine and the other part of the machine, was seen by the yard master to be on fire. The fire was extinguished in 15 minutes. This part of the consignment reached Giridih on 17 March, but the plaintiffs refused to take delivery of it. The rest of the consignment had already arrived but the plaintiffs declined to accept it on the ground that it was no use to them without the engine. They accordingly sued the Bast Indian Railway (defendant 1), the Secretary of State (defendant 2) and Balmer Lawrie and Co. (defendant 3) for recovery from one or other of these defendants of the price of the machinery.

(3.) The plaintiffs case against defendant 3 was that this defendant has agreed to deliver the machinery in good condition at Giridih. The plaintiffs gave no evidence of any such agreement and the trial Court accepted a statement made by the manager of the firm that a suggestion had been made by the firm to the plaintiffs but not accepted by the latter that the machinery should be booked at railway risk and should be insured. The learned Munsif therefore dismissed the claim against the firm but finding that the damage to the engine was due to misconduct by the railway administration or its servants he decreed the suit against the Secretary of State.