UNION OF INDIA Vs. B KAMESWAR SUBUDHI
HIGH COURT OF ORISSA
UNION OF INDIA
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(1.) THIS is an appeal by the defendants against a decision of the Additional subordinate Judge, Berhampur decreeing against them the plaintiff-respondent's claim for damages for non-delivery of a consignment despatched through the appellant's railway. The respondent is merchant of Berhampur town. His case in short is this : He had purchased some art silk clothes worth Rs. 3,250. 58 p. on 3011-1960 in the open market at Bombay. He also purchased cloths worth Rs. 2,049. 42 p. from M/s. Shah Tekchand Pratap Chand, General Merchants, Bombay. The plaintiff deposited the articles purchased by him in the open market with the firm of Tekchand with instructions to despatch the same along with the clothes purchased from the firm by Railways. Accordingly the entire consignment was despatched through the Railway by the firm of Tekchand on 5-12-1960 from Wadi Bandar to Berhampur Railway Station (Ganjam) under Parcel Way Bill No. A 256749 dated 5-12-1960. The plaintiff paid the price of the clothes purchased from the Firm to the State Bank of India on 2-1-1961 and released the bill and thus became the owner of the consignment. This consignment however never reached Berhampur and was not delivered to the plaintiff. He, therefore, sent the requisite notices to the defendants and filed the suit giving rise to this appeal claiming Rs. 5,300/- towards the value of the goods and Rs. 662-50 p. towards profits thereon at 12 per cent per annum.
(2.) THE suit was contested by defendants 2 and 3 only. They contended that notices under Section 77 of the Indian Railways Act and Section 80 of the Civil procedure Code had not been received by the defendants Railway and consequently the suit was not maintainable. They further stated that the loss of the suit consignment was due to running train theft between Bajwada and rajahmundry over which the defendants had no control, that the plaintiff has no title to the suit goods and that he is not entitled to the profits claimed by him. As the defendants had taken all care and caution with regard to the disputed consignment, they are not liable for the loss and damage to the same.
(3.) THE plaintiff examined as P. W. proved the office copy of the notices sent under section 77 o the Indian Railways Act am Section 80 Civil Procedure Code (sic) also proved he postal receipts an postal acknowledgments showing that these notices had been (sic) delivered to the defendants. The Subordinate Judge found that the notices were in proper form and contained all the necessary averments. He believed the plaintiff's case that he had purchased art silk cloth worth Rs. 3,250. 58 p. from some hawkers at Bombay and that the disputed consignment consisted of these clothes and also clothes worth Rs. 2,049. 42 p. purchased by the plaintiff from the consignor M/s. Shah Tekchand Pratap Chand. He, therefore, held that the plaintiff has proved his title to the goods covered by the consignment. As admittedly the consignment had not been delivered to the plaintiff and as according to the learned Judge the defendants had failed to prove that the loss was due to causes beyond the control of the Railways he held that the defendants are liable to pay damages to the plaintiff for the loss arising due to non-delivery of the suit consignment.;
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