Decided on January 06,1960

Jugalkishore Champalal Respondents


- (1.) This revisional application is directed against an order of the Full Bench of the Calcutta Small Cause Court reversing the order of dismissal of a claim for damages against the Union of India representing the Western, Central and Eastern Railway Administration, and granting a decree for Its. 1,365-13-9 plus costs in favour of the opposite party. The opposite party Messrs. Jugalkishore Chamanlal purchased a consignment of three bales of cotton piece goods booked by Ahmedabad New Cotton Mills Company Ltd., from Ahmedabad to Shalimar, Howrah. The opposite party however, got delivery of two of the bales only and a short delivery certificate was granted by the Railway officers at Shalimar, Howrah, on August 26, 1953. The three bales had been despatched on July 22, 1953 by Wagon No. 31651 W.R. (Western Railway). As the Plaintiff firm (opposite party) was unable to receive compensation for the 3rd bale of missing cotton piece goods even after correspondence, it filed the suit, being suit No. 3403 of 1954 in the Calcutta Small Causes Court, claiming compensation equal to the value of the missing bale of cotton piece goods, viz., Its. 1,365-13-9.
(2.) The claim was contested by the Union of India representing the Railway Administrations. The defence with which we are concerned now is that the Railway Administrations took due care and caution in carrying the three bales of goods but one bale was lost on account of reasons beyond their control, viz., by theft from the running goods train containing the Wagon No. 31651 W.R. between Chakradharpur and Gomharia, and so accordingly the Union of India was not liable to pay any compensation. The Trial Bench accepted the defence that it was a case of theft from a running train and that the Union of India representing the Railway Administrations had no liability because all proper care and caution had been taken in carrying the goods as a bailee. Accordingly the suit was dismissed.
(3.) There was an application under Section 38 of the Presidency Small Cause Courts Act, and this application was heard by the Full Bench of the Small Cause Court. The Full Bench set aside the order of the Trial Judge and remanded the case for fresh trial, pointing out that on several points there was no legal evidence, but that the Trial Judge had relied on inadmissible evidence, i.e., copies of railway journals and certificates which could not be admitted into evidence, and on incomplete oral evidence of witnesses who spoke without reference to contemporaneous entries in books and journals.;

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