Decided on October 31,1952

Madras Handloom Weavers Provincial Co -Operative Society Ltd., Madras Appellant
Dominion Of India, Represented By General Manager, Madras And Southern Maharatta Railway And Anr. Respondents


Govinda Menon, J. - (1.) THE plaintiff, whose suit for Rs. 113 -6 -3 being the value of the shortage of goods, due to him from the defendant, inclusive of proportionate freight charges has been dismissed, is the petitioner, in this civil revision petition, and the only question that arises, as the learned District Munsif has stated, is whether the defendant -railway is liable for the alleged loss occasioned to the plaintiff during the transit. There was a consignment weighing 15 maunds 30 seers of textile material from Madura to Bezwada according to the railway receipt, which is marked in the case Ex. B. 5. The plaintiff as the consignee when he took delivery of the goods at Bezwada found that the quantity was short by 22 seers and he took open delivery of it. The present suit is for the recovery of the price of 22 seers of goods. The lower Court has dismissed the suit on the ground that in the absence of proof that the shortage occurred on account of the misconduct on the part of the railway, the plaintiff is not entitled to any relief.
(2.) IN revision, it is argued for Messrs. John and Row by Mr. Sriramamurthi, that according to the clause in risk note Z the railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession and control and if necessary to give evidence before the consignor is called upon to prove misconduct; but if misconduct on the part of the railway administration or its servants cannot be fairly inferred from such evidence the burden of proving such misconduct will only be on the consignor. What is contended is that in this case the railway administration has not let in any evidence to show how the consignment was dealt with during the time it was in its possession, in transit from Madura to Bezwada. If the railway had Jet in evidence to show that proper care was taken of the package while it was being transported both over the South Indian Railway and the Madras and Southern Maharatta railway, then the burden shifts to the plaintiff to show misconduct on the part of the railway servants. The argument, therefore, urged is that there is no obligation on the part of the plaintiff to prove any misconduct on the part of the railway administration, and if it is shown that there has been shortage during the course of transit, then the plaintiff is entitled to damages for that shortage. On the other hand, on behalf of the railway administration Mr. Sampath Kumar of Messrs. King and Partridge has put forward the contention that if the risk note Z had stood alone, probably the plea put forward on behalf of the plaintiff might be of some avail. But, in this case, it is admitted that the consignor had executed another risk note in the form risk note A, which very much reduces and clinches the liability of the railway administration. Risk note A premises by saying that it will be used when articles are tendered for carriage which are either already in bad condition or so defectively packed as to be liable to damages, leakage, or wastage in transit. Therefore, when once risk note A is taken in addition to the ordinary risk note Z, the inference is possible that at the time the package was tendered for transit, it was either in a bad condition or so defectively packed as to be liable to damages. Since both risk notes have been executed, the question is whether the provisions contained in risk note A should prevail over risk note Z. In my view, risk note Z is the general form of risk note for all kinds of goods handed over to the railway administration for transit and risk note A is the particular kind of risk note to be used only in special cases where the package is defectively or insufficiently packed so as to be liable for damages. In view of the principle that a special contract or provision supersedes a general provision or a general contract, we have to take it that the parties have to be governed by the terms of risk note A.
(3.) ON this aspect of the case, my attention has been invited to a decision of a single Judge of the Patna High Court in - -'Governor General of India in Council v. : AIR1948Pat45 (A) in which the facts are somewhat similar. There also the consignor had executed two risk notes, risk note A and risk note Z when the railway administration was confronted with a claim for damages, they choose to take their stand on the terms and provisions of risk note A and disclaimed liability. The learned Judge, in disposing of that contention in favour of the railway administration, observed as follows: "So much for risk note Z. But in the present ease the consignor also executed risk note A, and thereby even further exempted the railway administration from liability. Obviously where two risk notes have been executed limiting the railway's liability, it is open to the Railway administration to take advantage of either, and if under either it can be shown that the railway administration has escaped liability, then the suit must be dismissed, even if some other form of risk note might also have been executed under which it might be held that liability had not been fully taken away. Risk note A is a special form of risk note to be used when articles are tendered for carriage which are either already in bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit.";

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