HARI PRASAD AGARWALA Vs. GOVERNOR-GENERAL-IN-COUNCIL

JUDGEMENT

(1.) In this second appeal the plaintiff is the appellant. The judgment under appeal is one of reversal. So far as the facts are concerned, they are practically all admitted. Plaintiff Hari Prasad Agarwala is a man of business at Jharia, On 8th August 1942 two consignments, one containing 200 bags of masur and the other 260 bags of gram, were despatched from Sasaram to Jharia under invoice Nos. 19 and 18 respectively, the consignee in each case being the plaintiff. On 17 August 1912 the plaintiff's representative went to Jharia Bail way-Station, paid the requisite railway freight in respect of the two consignments but for want of time could take delivery of only 30 bags of masur and 3 bags of gram. The goodshed in which the bags of masur and gram were kept was closed at 5 P.M. and so the representative of the plaintiff had to come away without taking complete delivery. When on the next day the plaintiff's man went to the Railway station again for taking delivery of the remaining bags it was found that 84 bags of masur and 51 bags of gram were missing. The plaintiff's representative thereupon took open delivery of the consignments in the presence of the goods clerk. The plaintiff claimed Rs. 1575 for the loss of masur and Rs. 753/2/- for the loss of gram. In paragraph 5 of the plaint it was stated that the loss was due to the "wilful negligence, misconduct and lack of proper care" on the part of the servants of the East Indian Railway Administration, Jharia, being a station on the East Indian Railway, The Governor. General-in-council re-presenting the East Indian Railway Administration, the defendants in suit, filed written statement denying liability. It was alleged in paragraph 2 of the written statement that the consignments in question reached their destination on 16 and 17 August 1942 with their seals intact. Further it was stated that they were unloaded in "good and sound condition" at Jharia Railway Station. In paragraph 3 the defendant stated that the plaintiff's representative took delivery of all the bags of both the consignments on clear receipts on 17 August 1942, but could not take away all the bags and had to leave behind some in the railway good shed It was further the case of the defendant that on the evening of 17 August 1942 Jharia Railway Station was raided by an unruly and violent mob which burnt the goods shed and the post office at Jharia and looted away property from the goods-Shed including several bags of the two consignments in suit. It was also the case of the defendant that the Claims Inspector and the goods clerk of the Railway held an enquiry and found that 84 and 51 bags of the two consignments were destroyed by the mob. In the circumstances mentioned in the written statement the defendant denied his liability to pay the amount claimed by the plaintiff.

(2.) The learned Subordinate Judge at Dhanbad, who tried the suit, held that the defendant was liable for the loss of 84 bags of masur and 51 bags of gram which were not delivered by the plaintiff. As the prices claimed by the plaintiff for the masur and gram were not disputed the learned Subordinate Judge gave a full decree to the plaintiff. The defendant appealed to the District Judge and in appeal the learned District Judge held that in the circum-stances of the case the defendant could not be made liable for the loss of the goods. Hence this second appeal.

(3.) One of the grounds on which the learned lower Court has held that the plaintiff is. not entitled to succeed in the suit is that according to Clause (8), Appendix C, Railways Act, the railway receipt given by the Bail way Administration for the articles delivered for conveyance must be given up at destination by the consignee to the Railway Administration, and the signature of the consignee or his agent in deli, very book at destination shall be evidence of complete delivery. The learned District Judge apparently was in error when he. took this to mean that such signature of the consignee or his agent will be conclusive evidence of complete delivery and no other evidence will be permitted to be adduced to show that really there was no complete delivery.