Decided on September 26,1957



- (1.) THIS is a plaintiff-firm's first appeal from the judgment and decree, dated 16-51952, of the Commercial Subordinate Judge of Delhi, dismissing its suit for the recovery of Rs. 5,137/8/-against the Union of India as damages for insured parcels, sent through the Post Office.
(2.) THE plaintiff-firm sent five insured parcels one No. 5 on 21-5-1943 and four nos. 36 to 39 on 22-5-1948, from Chandani Chowk Post Office, Delhi, to Kalbadevi post Office Bombay, for delivery to its branch at Bombay. The plaintiff-firm is manufacturer of attar. In the five parcels there were bottles of attar of the total value of Rs. 6,000/ -. The details of the parcels are given in the amended plaint at page 6 of the printed paper-book. A letter (Exhibit P. 17), dated 26-5-1948, was received by the plaintiff-firm that the insured parcels had been received in the office of the Presidency Postmaster in a leaking condition and the plaintiff-firm was asked to send somebody to take the delivery. The plaintiff-firm replied to that letter saying that an open delivery be given to the manager of its branch at Bombay. It at the same time wrote to its Manager Shankar Lal at Bombay to take open delivery. Accordingly Shankar Lal who has appeared as a plaintiff's witness, went to the General post Office, Bombay, to obtain delivery of the parcels. He asked for open delivery because of the condition of the parcels, but that was refused. He refused to take the delivery. After that, the parcels were sent by the insurance section to the Dead Letter Office. There the same were opened and then on 19-7-1948 a letter was addressed which letter is printed at page 83 of the printed paper-book, by the Manager of the Dead letter Office to the plaintiff-firm giving details of the condition of each parcel and requiring the plaintiff-firm to take delivery of the same within twenty days from the receipt of the letter. Shanker Lal, the Branch Manager of the plaintiff-firm, wanted to measure the contents of the bottles of attar in the condition the same were after the parcels had been opened by the Dead Letter Office, but he was not allowed to do so, and again he refused to take delivery. It was after that that the plaintiff-firm instituted the suit on 20-12-1949 for recovery of Rs. 6,000/- from the defendant. The learned trial Judge, during the trial, directed the plaintiff-firm to take delivery of the goods after preparing necessary Inventory about the details of what was received by the plaintiff-firm. This was obviously with a view to minimise the damage The delivery was taken by the plaintiff-firm and in view of the bottles and attar received by it and in view of the condition of the same, the plaintiff-firm revalued the loss it had suffered and put in an amended plaint, according to which the claim of the plaintiff-firm has been reduced to Rs. 5,137/8/ -. There is no dispute about this figure now. The claim of the plaintiff-firm is based on damage to the parcels and consequent loss to it. The defendant has taken the defences that the parcels were available for delivery and the Plaintiff-firm refused to take delivery within reasonable time, that the condition of the parcels outwardly was showing no signs of damage and there was no justification for the plaintiff-firm to refuse to take delivery, that there is no liability of the defendant in view of section 6 of the Indian Post Office Act, 1898, and clauses 39 and 81 (2) of the Post and Telegraph Guide, and that the amount of damage claimed is not exactly what has been suffered by the plaintiff-firm.
(3.) THE learned trial Judge found that the parcels were available for delivery immediately after 25-5-3948 but the delivery did not take place because of the condition of the parcels, that the parcels were in a leaking condition and that condition arose during transmission of the same and when the parcels were in the possession and under the control of the postal authorities, that the cloth wrappers were not torn nor were the wooden boxes broken, and that the amount of the damage claimed by the plaintiff-firm is actually the correctly assessed value of the loss but that the defendant is not liable because it is exempt from liability under section 6 of the Indian Post Office Act since the parcels were not packed in accordance with Rule 35 (2) of the Indian Post Office Rules, 1933. The suit has been dismissed leaving the parties to their own costs.;

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