- (1.) This First Appeal is directed against the judgement and decree dt. 11th Aug. 1976 passed by the learned First Additional Civil Judge, Kanpur, decreeing the suit of the plaintiff respondent, Messrs Indian and Overseas Trading Company, Kanpur, for a sum of Rs. 49139.64 P. as damages on account of loss of six cases of Indian Bristles of Messrs Indian and Overseas Trading Company entrusted for transit of the defendant-appellant.
(2.) The suit was filed on the allegations that the plaintiff firm, which was alleged to be a registered partnership from, was carrying on business in Bristles with its Head Office at Kanpur and in pursuance to an order received by the plaintiff from N. Wagman and Company incorporated, Philadelphia Penns; had to supply 44 cases of Indian Dressed Bristles. In pursuance of the said order plaintiff 1 entrusted to the Railway Administration at Kanpur Central Goods Shed, 44 eases of Indian. Dressed Bristles under Railway Receipt No. 163326 on 30th Jan. 1968 for carriage to Wadibunder, Bombay, and the said consignment was consigned to the Chartered Bank, which was the beneficiary of plaintiff No. 1 at Kanpur and the endorsed consignees were Messrs. D. Abraham and Sons (P) Ltd., Bombay who were the shipping agents of the said plaintiff. It was said that while in transit the wagon in which the consignment of 44 cases was in transit was pilfered on its way to Wadibunder at Bombay and on delivery being taken by the plaintiffs' shipping agents the aforesaid Messrs. D. Abraham and Sons (P) Ltd., Bombay, the consignment was short delivered by six cases and a shortage certificate dt. 15th Feb. 1968 was issued by Railway Administration. Plaintiff 1 on account of shortage, detailed herein above, made a claim of Rs. 49139.64 P under S.78B of the Indian Railways Act on 10th Feb. 1968 and on the failure of the Railway Administration to settle the claim further served upon them a notice dt. 12/26th December, 1968 under S.80 of the Civil P.C. and after having failed to get any response thereon instituted the suit. Plaintiff 2 in the suit was a limited liability company with its Head Office at Calcutta since transferred and vested in National Insurance Co. Ltd., Calcutta, who were the insurer of the consignment sent by plaintiff 1.
(3.) The defendants in their written statement admitted that a consignment of 4 cases was entrusted to them for carriage to Wadibunder, Bombay, from the Central Goods Shed at Kanpur under the relevant Railway Receipt and that it was pilfered and the pilferage was detected by them at Lalpur Railway Station and even though a line search was made nothing could be found whereupon the wagon was re-sealed at Lalpur and consequently the six cases were found short. The factum of short delivery, as also the issuance of a shortage certificate, has not been denied. The pleas raised to resist the claim were many fold and consequently the learned trial Court framed as many as 13 issues and recorded a finding that plaintiff 1 was a registered firm and there was no bar of S.69 of the Indian Partnership Act. The Court also recorded a finding that notices under S.78B of the Indian Railways Act and under S.80 of the Civil P.C. were duly served and were legal and valid notices. A further finding was returned by the Court below in favour of the plaintiffs to the effect that six cases of consignment were lost due to negligence and misconduct of the Railway Administration and that was due to lack of reasonable care in carriage. The Court also held that the suit could be filed by plaintiff 1, that plaintiff 2 has also a right to sue and that ownership of the goods in the consignment did not pass to the consignee who was the purchaser in the instant case, that is N. Wagman and Company incorporated Philadelphia, Penns, and that the Bristles contained in the six lost cases of the consignment were replaced by plaintiff 1 for which a claim had been paid by plaintiff 2 amounting to the sum of Rs. 49,139.64 P as claimed in the suit. The learned Civil Judge decreed the suit with costs, and aggrieved by the judgement and decree of the Court below the Union of India has filed the present First Appeal in this Court.;