Decided on September 12,1966

UNION OF INDIA Respondents


J.B.MEHTA - (1.) These two appeals arise from a common judgment and involve common questions of facts and law and therefore they are being disposed of by me by this common judgment.
(2.) The plaintiff had filed two suits against the defendants for recovery of two sums of Rs. 8 15 and Rs. 7 544 as and by way of damages due to abnormal delay in transit and consequent fall in market in respect of the goods ordered by him. The plaintiffs case was that the plaintiff Manilal Chhaganlal Desai was the sole owner of business running in the name and style of A. M. Brothers at Jetpur. The plaintiff had booked two consignments of 55 and 50 cases of tea from Jadabpur in West Bengal which is known as Eastern Railway for conveyance and safe delivery to the plaintiff at Jetpur station which is in the Western Railway. The first consignment of 55 boxes weighed 4950 lbs. while the second consignment of 50 boxes weighed 4750 lbs. The rate as per the invoices for both those consignments was Rs. 3-8-0 per lb. The total invoice for the first consignment of 55 boxes was Rs. 17325.00 as per Exs. 14 and 16 while the total in voice for the 50 boxes was of Rs. 16625.00 as per Exs. 13 and 15. All those invoices were of 16th November 1954. The goods as per those invoices were desptached on 16th November 1954 from Jadabpur to Jetpur by the railway receipts at railway risk dated 16 November 1954. It is not in dispute that the ordinary time for delivery of the said two consignments would be 15 to 20 days. As the said consignments were not delivered to the plaintiff the plaintiff served two notices Exs. 18 and 19 to the Western Railway on 23rd February 1955 under sec. 77 making a claim for non-delivery and to the Eastern Railway as per the two Exs. 21 and 22 It is also not in dispute that the said goods were not delivered as they remained lying in Sabarmati Yard from 9-12-54 to 24-4-55 because no proper labels were on the wagons The consignments ultimately reached Jetpur on 29th April 1955 and were offered for delivery to the plaintiff on 2nd May 1955 and were actually delivered on 3rd May 1955. The plaintiff made a remark at the time of delivery in the delivery book of Jetpur Station to the effect that the consignments had arrived after the period of 5 1/2 months and the quality had also deteriorated and the market value at the time had considerably fallen down and that he was taking delivery of the consignments reserving the right to claim damages due to fall in the market and other damages. The plaintiff had also made a remark that five cases of tea had been received in tampered condition resulting in a shortage of 1 Md. 3 B. Seers. Remarks to this effect were also passed even on the back of the railway receipts. The plaintiff therefore gave statutory notices under sec. 80 of the C. Y. Code both to the Western Railway and the Eastern Railway on 8-5-55 and the replies from the Eastern and Western railway received on 18-8-55 are at Exs. 38 and 39. The Chief Commercial Superintendent had also sent after the statutory notice replies at Exs. 65 and 66 on 30th September 1955 wherein it was stated that regarding the claim for alleged fall in the market as well as for interest charges the claim was not admissible as the railway admistration could not be held liable for the day-to-day fluctuations in the market prices. Regarding the case of shortage it was stated that the refund order was being issued. It was also stated that the physical quality of the tea had not deteriorated. Thereafter the plaintiff filed the present two suits on 9th August 1955. The defendants were the Union of India owning both the Eastern and Western Railway. Both the railways denied the plaintiffs suit inter alia on the ground that the plaintiff was not the owner of the suit consignments and that the defendants were not guilty of any negligence and misconduct and were not liable to pay anything to the plaintiff and that as the notice of claim under sec. 77 of the Code was not given for loss and damages the suit must fail. The defendants denied that the market price had gone down or that the plaintiff was entitled to any damages as claimed and denied that the plaintiff had suffered any loss. Even though it was admitted that the notice was received by the railways the same was stated to be not legal and proper.
(3.) The trial Court raised the following 8 issues : (1) Whether the plaintiff is entitled to sue. (2) Whether plaintiff is a firm and if sos whether the firm is not register d. If so what is its legal effect. (3) Whether plaintiff proves misconduct and/or negligence on the part of the railway administration or its servants. (4) Whether delay caused in delivery of consignments amounts to misconduct and/or negligence. (5) Whether the notices are valid and proper. (6) What was the market rate on 29th April 1965 ? Whether plaintiff suffered loss of Rs. 1-8-0 per pound or any damages owing to fall in market ? (7) To what damages is the plaintiff entitled ? (8) What relief can be granted ? As the plaintiff was a registered firm the first two issues were not pressed by the defendant and the finding of the Court on those issues were in favour of the plaintiff. The trial Court also found relying upon the evidence given by the defendants witnesses themselves that because of the negligence of the railway staff the wagons had remained at Sabarmati junction for a period of about 4 months and the plaintiff had proved negligence on the part of the railway administration as the goods could have been delivered much earlier than the date of the delivery. In those circumstances the findings of issues Nos. 3 and 4 were in favour of the plaintiff. The trial Court however dismissed the plaintiffs suit holding: (1) that as the notice claim under sec. 77 was one of non delivery it was not a valid notice under sec. 77 of the Indian Railways Act and (2) therefore the suit must fail. On that finding the trial Court held that there was no necessity of giving any finding on issues Nos. 6 and d. However in the alternative the trial Court recorded a finding that the plaintiff had not produced such proof as would entitle him to any damages of the ground that the plaintiff had sustained any particular loss. It was therefore held that the plaintiff failed to prove his loss and he was not entitled to any relief. The plaintiffs suit having thus been dismissed the plaintiff filed the present two appeals. The defendants did not dispute the finding of the lower Court as regards the negligence of the railway administration as on their own evidence it was clearly established that the wagon had remained at Sabarmati junction from 9-12-54 to 26-4-55 for want of proper labels. Mr. Daru therefore rightly did not challenge the said findings.;

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