Decided on October 16,1979



B.K.MEHTA, G.T.NANAVATI - (1.) The question of law and of some importance which arises in these revision application for our consideration is whether a consignor who is not an owner of a part of the goods consigned by him (whom we shall call consignor nonowner for the sake of convenience) along with his own goods and under the same parcel way bill is competent to file a suit for recovery of compensation from the railway administration for loss destruction deterioration or damage caused to the goods as a result of delay or detention on the part of the railway administration in their carriage? This question being common to all these revision applications. they are all disposed of together by this common judgment. 2 The facts in all these cases are similar; and therefore we will refer to the representative facts of Civil Revision Application No. 272 of 1977 only. It arises out of Regular Civil Suit No. 3963 of 1970 filed in the Small causes Court at Ahmedabad by M/s. Tolaram Hariram and K. A. Khadar as plaintiff Nos. 1 and 2 respectively against the Union of India owning and representing Western Railway as the defendant. Plainntiff No. 1 M/s. Tolaram Hariram is a fruit merchant of Ahmedabad and is doing business in mangoes as commission agent. Plaintiff No. 2 is a grower supplier of mangoes having his mango orchards at Damalcharuva in the State of Andhra Pradesh. Sometime prior to June 19 1967 Plaintiff No. 1 had placed an order with plaintiff No. 2 to dispatch one wagon load of fresh raw mangoes from Damalcharuva to Ahmedabad by parcel or passenger train. After receiving this order plaintiff No. 2 had placed an indent for a wagon with the Railway administration at Damalcharuva. He had then paid the requisite fee and had filled in the forwarding note. All this was done as per the prescribed procedure. Thereafter the wagon was allotted to plaintiff No. 2 Plaintiff No. 2 then loaded the said wagon with 882 baskets of fresh raw mangoes and had handed over the same to the railway administration for carrying them to Ahmedabad. It may be noted that if the consignment is booked as a parcel or parcels then a parcel way bill is issued in which case the consignment is carried by a passenger or a parcel train and not by a goods train; whereas if the consign ment is booked as goods then the railway receipt is issued and the goods would be carried by a goods train. As the consignment in this case was a wagon load and as it was booked by plaintiff No. 2 as parcels parcel way bill was issued to him showing his name as the consignor. This was done on June 19 1967 This consignment had reached Ahmedabad on June 28 1967 Open delivery was given to plaintiff No. 1 at Ahmedabad on the same day; and at that time it was found that the mangoes were in a damaged condition. The consignment was thus found in a damaged or deteriorated condition and the loss was assessed by the defendant at 27 per cent. According to the plaintiffs the mangoes had deteriorated due to unreasonable delay on the part of the railway administration in transporting the same from Damalcharuva to Ahmedabad and that had resulted into a loss of more than Rs. 2 381 to the plaintiffs. However they confined their claim to Rs. 2 381 Ps. For recovering this amount the plaintiffs first gave a claim notice to the railway administration and then served them with a statutory notice. As no heed was paid to these notices the plaintiffs filed the aforesaid suit for the recovery of Rs. 2 381 Ps. plus interest at the rate of 6 per cent per annum. The said suit was filed by the plaintiffs on August 20 1970
(2.) The defendant resisted the said suit on various grounds. It was contended by the defendant that the plaintiffs had no right to file the suit. It was denied that the consignment had been delivered after unreasonable or unusual delay and that the goods were in decayed condition when delivered. It was also denied that the goods had deteriorated due to delay; and that there was any negligence or misconduct on the part of the railway administration or any of its servants which had caused delay or detention.
(3.) The learned trial Judge in view of the aforesaid pleadings of the parties amongst other issues had raised an issue as to whether the plaintiffs have a right to sue. Since we are not concerned with other issues raised in the suit at this stage we are not referring to those other issues; and we will only refer to in brief the findings recorded by the trial Court on those issues. The trial Court held that the suit goods when delivered to the plaintiffs were in decayed or deteriorated condition; that there was unreasonable delay in delivering the goods to the plaintiff and that this delay had caused decay or deterioration. The trial Court also held that as a result of the decay or deterioration of the mangoes the plaintiffs had suffered damages to the extent of Rs. 2 381 Ps. As regards the competency of the Plaintiffs to sue it appears that the learned advocate appearing for the defendant railway administration had not pressed that issue in the first instance. However during the course of arguments it was submitted by him that sec. 76 of the Act provides that the railway administration shall be responsible for the loss destruction damage or deterioration of animals or goods proved by he owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the art of The railway administration or of any of its servants; and therefore it would be only the owner who can file a suit for damages and the consignor nonowner is not competent to file the suit. This submission was made on the basis of the evidence of plaintiff No. 1 who had admitted that part of the goods consigned by them did not belong to them but belonged to another merchant although they had arranged for the transport of the same. It was on the basis of this evidence that it was contended by the learned advocate for the defendant that no decree can be passed against the railway administration in a suit filed by such a consignor even though it is proved that the goods consigned were damaged or had deteriorated as a result of delay on the part of the railway administration. This contention was negatived by the learned trial Judge on the ground that the consignor is a person who is always entitled under the law to file a suit for breach of contract. The learned trial Judge further held that The word owner as used in sec. 76 of the Act includes consignor as the owner need not be a full owner and any person who has some right or interest in the property can also be said to be an owner to that extent. The learned trial Judge therefore decreed the suit in favour of plaintiff No. 2 only as the purshis Exh. 63 was filed on behalf of the plaintiffs to the effect that the decree may be passed in favour of plaintiff No. 2 only and no decree may be passed in favour of plaintiff No. 1.;

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