Decided on December 17,1970



Chakravarti, J. - (1.) This appeal is at the instance of Union of India representing certain railways. A consignment containing 293 bags of Dhania weighing 329 mds. 24 seers was booked at Vikarabad a station on the N. S. Railway for carriage to and delivery at Midnapore, a station on the erstwhile B. N. Railway against R. R. No. 83746 dated 20th December, 1950. The consignor was himself the consignee. The consignment reached Midnapore on or about 20th January, 1951 and then it was found that 220 bags out of the aforesaid consignment got damaged by water and the damage was also assessed by the railways and it was found that the damage was to the extent of 60 per cent, in 150 bags, 20 per cent, in 50 bags and 15 per cent, in 20 bags, the total thus coming to 115 mds. 35 seers, the plaintiff claims to be the owner of the goods by purchase from the consignor after the goods had been booked and alleges that the goods got badly damaged by rainwater during transit on account of negligence and misconduct on the part of the railways, and there was also considerable delay on the part of the railways in handling this consignment. He claimed a sum of Rs. 12,746-4 annas as the price of this 115 mds. 35 seers @ Rs. 110/- per md., a sum of Rs. 330/-as the price of 220 empty bags @ Rs. 1.50 per bag, a sum of Rs. 6411-12 annas as the loss on account of market fluctuation on 213 mds. 29 seers @ Rs. 30/- per md, together with a sum of Rs. 2531-12 annas by way of interest. The total claim thus reached at Rs. 22,019-12 annas. The loss on account of market fluctuation was claimed on the basis that there was inordinate delay on the part of the railways and the market had come down from Rs. 110/- to Rs. 80/-, and it was at that rate that the plaintiff had to sell the better portion of the consignment. The railways denied that there was any negligence or misconduct on their part, or that the goods were damaged by rainwater. They further alleged that claim has been grossly exaggerated and also that the plaintiff was not the owner of the goods. The learned Subordinate Judge at Midnapore overruled the contention of the defendant, and found the defendant guilty of negligence and decreed the suit in part for a sum of Rs. 12,746/-namely the price of the damaged goods @ Rs. 110/- per maund. He disallowed the other claims of the plaintiff and the plaintiff did not file any cross-objection in respect of the same.
(2.) The first point that was pressed on behalf of the appellant by Mr. Ajoy Kumar Basu, learned Advocate is to the effect that the plaintiff is not the owner of the goods. The delivery was made to the plaintiff and there are documents already admitted into evidence which would show that the plaintiff had purchased this consignment. He produced also the R. R. and the R.R. also bears the endorsement of Messrs. Ram Avatar Agarwalla of Bankura and that endorsement he got from the Central Bank of India Ltd. and that would appear also from Exts. 7 and 8. We, therefore, agree with the learned Subordinate Judge that the plaintiff is the owner of the goods and as such he is entitled to sue the railways. (Vide Union of India v. West Punjab Factories Ltd.).
(3.) The next point that has been pressed on behalf of the appellant by Mr. Basu is to the effect that the railways would not be responsible inasmuch as the goods were defectively packed. Mr. Basu relies on Section 74A of the Indian Railways Act, and hereinafter referred to as the Act. Now, under the rules it is necessary for the consignor to note in the Forwarding Note the condition in which the consignment was being booked. In this particular case Ext. A is the Forwarding Note and it shows that the defective packing was to this effect: "single gunnies stitching defective". Mr. Basu, therefore, contends that the railways would not be responsible. Now the evidence adduced even on behalf of the railways would show that this part of its consignment got soaked in water. That damage could not be attributed to the defective packing as stated above. As we read Section 74A, deterioration, leakage, wastage or damage referred in that section must be due to defective packing or the defective condition of the goods. In the circumstances Section 74A would be of no help to the appellant.;

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