M A P PALANICHAMI NADAR Vs. GOVERNOR-GENERAL OF INDIA IN COUNCIL, REPRESENTED BY THE GENERAL MANAGER, SOUTH INDIAN RAILWAY

JUDGEMENT

(1.) This petition arises out of a small cause suit instituted by the plaintiff who is the petitioner here for compensation for non-delivery of goods consigned for transit. The goods were consigned for being sent from Colombo to Madura. The consignee was the Colombo Government Railway, but part of the journey had to be covered over the South Indian Railway belonging to the respondent company. There were four consignments of arecanuts and when they were delivered, 15 bags out of those consignments were short. The petitioner carried on correspondence with both the companies, as a result of which 11 bags were found and delivered, and there was an ultimate short delivery of 4 bags. It is for the value of those four bags at Rs. no per bag that the suit was laid against the South Indian Railway Co. The four bags that were short consisted of two bags out of the first consignment and two bags out of the fourth consignment. With reference to the two bags of the first consignment, the plaintiff's case was that he was informed by the Ceylon Government Railway that the entire consignment had been delivered in good order by that company to the South Indian Railway Co. and that fact had also been notified to that company by letter dated 9 January, 1943. The plaintiff, therefore, proceeded upon the footing that the South Indian Railway Co., was liable to make good the loss sustained by him on account of the non-delivery of the two bags out of the first consignment.

(2.) As regards the two bags in the fourth consignment, the plaintiff claimed the value thereof, but the defendant company's case was that the entire consignment had been delivered and acknowledged on behalf of the plaintiff and that there was no short delivery in that case. The plaintiff's case, so far as these two bags of the fourth consignment are concerned, must, I think, fail. In Ex. D-2, the delivery register, P.W. 1, the clearing agent of the plaintiff signed in token of having received all the 20 bags of that consignment. It is apparently usual in cases where there is short delivery to make a note thereof in the delivery register. Such a note was made in the case of the first consignment in Ex. D-1. The fact that in Ex. D-2, the receipt of all the bags was acknowledged and no such note as exists in Ex. D-1 was made clearly establishes that there was no short delivery in that case. The plaintiff's learned advocate contended that P.W. 1 discovered the shortage sometime later and brought it to the notice of the company's clerk and he also referred to the fact that in the Gate Pass Book the exact quantity of bags that passed the gate would appear and from that the quantity of consignment that was delivered could be gathered. Although the plaintiff gave notice to the defendant for the production of certain documents, he did not ask for the production of the Gate Pass Book. Having regard to all these circumstances I find no merit whatever in the plaintiff's case relating to the alleged short delivery of two bags out of the fourth consignment.

(3.) With regard to the short delivery of two bags in the first consignment, two grounds are urged against the plaintiff's claim on behalf of the defendants. The first is that there was no cause of action in respect of the alleged short delivery against the respondent company having regard to the language of Section 80 of the Indian Railways Act. The second objection is that the claim of the plaintiff in respect of this item is barred by limitation under Art. 31 of the First Schedule of the Limitation Act.