THE ASSOCIATED COTTON TRADERS LTD. AND ORS. Vs. THE UNION OF INDIA (UOI), OWNING SOUTHERN RAILWAY, BY ITS GENERAL MANAGER

JUDGEMENT

(1.) THE unsuccessful plaintiffs in O.S. No. 247 of 1974 on the file of the Court of the Subordinate Judge, Coimbatore, are the appellants herein. They filed the suit for the recovery of a sum of Rs. 44,287 -15 from the respondent -defendant viz., the Southern Railway, towards the damages alleged to have been suffered by them due to the loss of cotton caused on account of the alleged negligence and default of duty on the part of the servants of the defendant railway. It was alleged that the first plaintiff despatched 135 bales of full pressed cotton from Washim Railway Station in Madhya Pradesh State to Pulankinar Railway Station in Madras State (now Tamil Nadu) under Railway Receipts Nos. 725059 and 725058 dated 3rd February, 1964 at railway risk, in pursuance of the order placed by the second plaintiff with the first plaintiff. The third plaintiff viz. the Pioneer Fire and General Insurance Co. had covered the said consignments by issuing a policy in favour of the first plaintiff for Rs. 74,000. The said consignments reached the destination on 16th February, 1964 and the same were unloaded and stored in the open yard outside the railway -shed on the advice and guidance and concurrence of the railway staff, as the railway shed was too small to hold the consignments. Before the expiry of the free time allowed under the railway regulations, the Pulankinar station authorities informed the second plaintiff, the consignee, on 17th February, 1964 at 12 -40 P.M. that the consignments were damaged by fire. Immediately, a representative of the second plaintiff went to the spot and found that all the bales were damaged by fire and rendered unfit for use. On 26th February, 1964, a claim for compensation for damages of the goods was preferred before the Chief Commercial Superintendent of the Southern Railway for Rs. 74,000 as per the insured value of consignments, which was not replied. On 8th May, 1964, the railway authorities issued a certificate assessing the damages at Rs. 44,387.15 being the cost of 31.780 lbs. or 14,415.16 kgs. of cotton. The second plaintiff thereafter took delivery of the damaged goods under protest and subject to the right to claim compensation against the said damage by fire. However to avoid litigation, the second plaintiff wrote to the Chief Commercial Superintendent, requesting him to pay compensation on the basis of the railway official's assessment, but this was rejected on untenable grounds. The plaintiff's allege that the said damage by fire would not have occurred if the railway authorities had taken all reasonable care and precaution for the safety of the goods unloaded and that the accident was entirely due to want of due care and caution and neglect of duty on the part of the local railway officials. It is further alleged that the goods -shed is a very small one near the goods -shed line and the two consignments of 135 bales could not be stocked in the goods -shed. In spite of heavy volume of business and arrival of goods at the station, no adequate provision is available for stocking the goods and that itself shows the negligence of the railway authorities. The goods were unloaded and stored under instructions from the railway staff and with their concurrence, in the open yard adjacent to the goods -shed and the railway cannot take shelter under the loading and unloading conditions inserted in the railway receipt, as there was no negligence in unloading, which was done under the supervision of the railway staff. Thus, the plaintiff allege that the goods being in the custody of the railways, it was their bounden duty to take every precaution for the safety of the goods till delivery to the consignee which they failed to do. The third plaintiff, the Insurance Co. has settled the claim with the first plaintiff by paying Rs. 73,022.28 as per their invoice value, and got themselves subrogated to their rights. Under these circumstances, the first plaintiff (the consignor), the Second plaintiff (consignee) and the third plaintiff (the Insurance Co.), have all joined in filing this suit in order to avoid technical objections, though the damage claimed is payable to the third plaintiff. Notice under Section 80,Civil Procedure Code, has been given by all the plaintiffs. Similarly the requirements of Section 77 of the Railway Act (before amendment) have been fulfilled by preferring the necessary claim. Hence the suit was filed, for recovery of Rs. 44,387 -15 with future interest and costs.

(2.) THE defendant railway filed a written statement raising the following contentions and in other respects putting the plaintiffs to strict proof of the plaint allegations. According to the defendant, the suit consignments were booked under 'L and U' conditions and therefore, the sender or his representative was bound to load the same at the forwarding station and unload them at the destination, the said operations to be carried out entirely, by the consignor and consignee under their supervision, direction and control, and the defendant had no let or part to play in such operations. So, the defendant denies the plaint allegation that the unloading and storing of the goods in the open yard were made on the advice and guidance or concurrence of the railway staff. Under the conditions of booking, the railway had no duty to take any part in the unloading of the consignments, and they have not taken any part in the said operations. The unloading was effected only under the direct supervision and guidance of one Sri P. Veluswami, an employee of the Premier Mills Ltd., the second plaintiff. Nobody prevented the second plaintiff in stacking the goods inside the goods -shed. The second plaintiff ought to have taken sufficient and adequate precautions to protect the goods stacked in the open platform. In fact it was usual for the second plaintiff under such circumstances to send a coolly to keep watch over the consignment and also to cover it in full with good tarpaulins. In this case, the said precautions were not taken by the second plaintiff; but it covered the suit consignments with two old and torn tarpaulins. Under the L and U conditions, the responsibility of the defendant railway as carriers ceases the moment the consignee takes charge of the consignments and unloads the same and thereafter, it is the sole responsibility of the consignee to take care of the goods and protect them from all possible dangers. Having failed to do so, it cannot blame the defendant and seek to saddle them with the alleged loss sustained on account of the fire accident. Thus, it is stated by the defendant that the loss of the consignment was mainly due to the negligence of the second plaintiff. The second plaintiff had taken delivery of the goods by unloading the same through their own men and thus assumed full and effective control over the goods and thereafter the responsibility with regard to the goods lay with them and not with the defendant. The damage certificate was given only to enable the second plaintiff to remove the goods from the station premises and there is no admission of any liability by the defendant by grant of such certificate and it was given with out prejudice to the legal rights of both the parties. The defendant does not admit the quantum of damages claimed by the plaintiffs. In any event, it is submitted that there was no negligence or misconduct on the part of the defendant. The fire that broke out was purely accidental and beyond the control of the defendant. The allegations in para. 10 of the plaint are denied. According to the defendant, the second plaintiff's men never attempted to slack the bales inside the goods -shed, but straight away unloaded them on the platform in the hope of removing them to the second plaintiff's premises soon, on production of the railway receipts. The allegation that the stacking was made under the instructions of the defendant railway, is denied. It is also stated that the railway authorities had, taken all prompt measures to quell the fire the moment it was discovered by one of its staff. The suit is bad for non -joinder of the Central Railway on whose lines the forwarding station is situate, and the suit is liable to be dismissed in limine on this ground alone. For the above reasons, the defendant prays that the suit should be dismissed.

(3.) ISSUE No. 4 was taken up as a preliminary issue and it was found in favour of the plaintiff by the trial Court, holding that the suit is not bad for non -joinder of the Central Railway as a party. Then, the trial proceeded on the other issues, and the lower Court found on issues 1 and 2 that the second plaintiff was responsible for the improper unloading, that the fire arose and the cotton bales were damaged as a direct consequence of the improper unloading done by P.W. 2, the agent of the consignee," the second plaintiff, and that under Section 78 (c) of the Indian Railways Act, the defendant is not liable for the suit action. On issue 3, it found that the plaintiffs are not entitled to any damages. Consequently the suit was dismissed with costs. It is as against this, the present appeal has been filed.