K.N. Seth, J. - (1.) A wagon of coal weighing 20 tonnes was booked from Kusanda. The Railway receipt was in favour of Bengal Coal Depot Holders Association, Meerut, and it was endorsed in favour of the plaintiff. The plaintiff alleged that when its Manager and Karta Radhey Shiam went to take delivery of the coal he found the side doors of the wagon open and that about one-fourth of the coal was missing. He demanded delivery of the consignment after weighment which was refused by the Railway authorities. The plaintiff asserted that as there was shortage of coal, which was a controlled commodity, it was justified and entitled to demand delivery after weighment whereas the railway authorities insisted on delivery of the consignment only against a clear receipt to which the plaintiff did not agree. It was further asserted that the Railway was negligent and had committed misconduct in transporting the wagon which resulted in loss of a part of the consignment. The plaintiff claimed a decree for Rs. 1289.86, which included the value of the coal and other charges along with profit and interest. The defendant pleaded that the wagon reached the destination in good condition and there was no shortage and that the plaintiff wrongfully demanded delivery after re-weighment to which it was not entitled. It was also pleaded that even if there was shortage the plaintiff had no right to refuse delivery and it could prefer its claim after taking delivery of the goods. It was further pleaded that since the plaintiff did not take delivery of the consignment, it was unloaded and subsequently sold after due notice to the plaintiff. It was denied that there was any misconduct or negligence on the part of the Railway Administration. The defendant claimed that the plaintiff was liable to pay Rs. 2589.90 towards freight, demurrage, wharfage, handling and unloading charges. After adjusting Rs. 1300/-recovered from the sale of coal the defendant made a counter claim for a sum of Rs. 1289.90 against the plaintiff.
(2.) THE trial court held that there was tampering with the railway wagon due to negligence and misconduct of the employees of the railway. THE Court negatived the plaintiff' s claim that it was entitled to claim delivery after re-weighment. It was further held that loss was caused to the plaintiff on account of its wrongful refusal to take delivery. THE defendant was also held not entitled to any amount as it was a case of contributory negligence. On these findings the suit was dismissed. Aggrieved by the decree of the trial court both the parties preferred appeals. THE learned Civil Judge affirmed the finding of the trial court that there was misconduct and negligence on the part of the Railway employees due to which a part of the consignment was lost. He also held that refusal to take delivery after re-weighment was not justified and the remedy of the plaintiff was to take delivery and then prefer its claim for shortage. As regards the counter claim of the Railway the court held that the defendant Railway was entitled to deduct Rs. 768.80 as demurrage, Rs. 120.00 as wharfage charges and Rs. 14.00 as handling charges i.e. a total sum of Rs. 902.80. After adjusting the amount realised from the sale of coal the defendant was held liable to pay a sum of Rs. 387.06 with one third costs of both the courts. THE defendant submitted to the decree. THE plaintiff has come up in appeal to this Court. A learned single Judge of this Court while hearing the second appeal felt some doubt about the correct legal principle relating to the rights of a consignor or consignee to claim re-weighment of the consignment before taking delivery where it was indicated that there had been pilferage or loss of a part of the consignment in transit and consequently recommended that the appeal be listed before a larger Bench for decision. There is no dispute that the consignment was booked at owner' s risk. It is no longer in dispute that as a result of misconduct and negligence on the part of the Railway employees a part of the consignment was lost. The only question that arises for consideration is whether the plaintiff was justified in refusing to take delivery unless the consignment was re-weighed. Rule 118 of the General rules for Acceptance, Carriage and Delivery of Goods contained in Goods tariff provides that Railways do not undertake to weigh consignments at destination stations as a matter of course. Such weighments at destination stations can only be considered in exceptional cases when the condition of the consignment or package warrants this. Relying on this rule it was contended that the condition of the consignment warranted re- weighment of the goods at the destination station and the plaintiff was justified in insisting that before taking delivery the goods must be weighed and as the Railway authorities illegally refused to reweigh the consignment, it was justified in refusing to take delivery and the defendant was liable to pay the damages suffered by the plaintiff. Chapter III of the Goods Tariff provides for rates and conditions for the carriage of coal. Rule 302 provides that " coal, coal shale, coke, lignite and patent fuel, when moving in wagon-loads at U. K., will be charged under a special scale of rates which is shown in Rule 303. Except where otherwise stated, the rules and conditions of carriage will be the same as those notified for the general goods." Sub-r. (7) provides that coal booked at Owner' s Risk will not be re-weighed. Rule 302 further provides that to arrive at the freight at Railway Risk the total freight at Owner' s Risk rate should be increased by 20 per cent. It is thus obvious that when coal in wagon-loads is booked at owner' s risk a lower rate of freight is chargeable. The plaintiff opted for the lower freight and contracted that the goods be carried at its own risk. Under the terms applicable to such a case it was not open to the plaintiff to refuse to take delivery unless the consignment was first re-weighed at the destination station. These rules have been apparently framed in exercise of the power under S. 54 of the Indian Railways Act which empowers a Railway Administration to impose conditions not inconsistent with this Act or with any general rule thereunder, with respect to the receiving forwarding or delivering of any animals or goods. Learned counsel for the plaintiff appellant contended that in spite of the fact that the consignment had been booked at Owner' s Risk it had a right to demand re-weighment before taking delivery of the consignment in view of clear indications that there had been pilferage and a part of the consignment had been lost in transit. Reliance was placed on Bhullan Mal Asa Ram v. Secy. of State, AIR 1929 All 960 which approved the earlier decision of a learned single Judge of this Court in the Rohilkhand and Kumaun Rly. v. Ismail Khan 13 All LJ 417 : (AIR 1915 All 155 (2)). In Bhullan Mal Asa Ram' s case (supra) there was no risk note and the consignment travelled at Railway risk. The Bench in the earlier part of the judgment observed that the factor that there was no risk note was not of importance in deciding the general question as to whether the consignee had a right to demand reweighment before taking delivery. Reference was made to R. 73 of the " East Indian Railway Traffic Code, part 2, Goods Traffic" which provided that a proportion of not less than 20 per cent of all goods should be reweighed at the destination. It appears that the Traffic Code also provided that packages showing signs of pilferage or from any cause whatever suspected of underweight, must in all cases be separately reweighed in the presence of the Station Master, in addition to those cases provided for in the traffic rules. The learned Judges felt that the spirit of rules intended that under request, of a consignee re-weighment should be made. However, in the penultimate paragraph of the judgment the learned Judges took care to observe that we lay down this proposition in a case in which there is no risk-note. As risk notes vary in their terms, we do not apply the proposition generally to cases of risk note. In view of this observation and the further fact that the decision of the case was based on the traffic rules then in force this case cannot be treated as an authority for the proposition that the consignee has a right to demand reweighment before taking delivery in every case irrespective of the question where the consignment travelled at the Railway risk or at the owner' s risk.
(3.) RELIANCE was also placed by the appellant on Harakchand Bhatey v. G. I. P. Rly. Co. (AIR 1927 Nag 77). In this case goods were consigned under risk note in form A. Following the decision in Rohilkhand and Kumaun Rly. (supra) it was held that the defendant Company was liable to the plaintiff in damages for not giving him the necessary facilities to reweigh the goods. We feel that the principle in this case has been rather widely stated. The right of the consignor or consignee regarding re-weighment of goods at the destination has to be determined on the terms under which the consignment was booked. We may now deal with certain cases mentioned by the learned single Judge in his referring order. In Jewala Pershad and Co. v. G. I. P. Rly., ((1913) 11 All LJ 772) a consignment of wine was sent from Bombay to Allahabad which were packed in boxes. The plaintiff, when he went to take delivery of the goods, found that there was a difference between the weight of consignment as entered in the railway receipt and the actual weight found on re-weighment. He demanded that before he took delivery of the consignment the officer in charge of the goods station should open the boxes and examine the consignments and should give him an open delivery. The Railway Company refused to do so and the plaintiff in his turn refused to take delivery of the goods. In this case the consignment was carried at the railway risk. This Court held that the Railway was not bound to open the consignment and examine it before delivery and it was not a wrongful act on the part of the Railway Company to refuse to give delivery in the way required by the plaintiff and they were not liable to him for any damages. This case is distinguishable on facts as the consignment was actually reweighed at the destination and what the plaintiff insisted was for open delivery to which he was held not entitled. The principle laid down in this case has been followed in Governor-General in Council v. Firm Badri Das Gauri Dutt (AIR 1951 All 702), Badri Das v. Union of India (AIR 1962 All 483) and Messrs. Jagan Nath Prasad Radhey Lal v. Union of India (Second Appeal No. 3437 of 1956, decided on 3-9-1973 (All)) which also were cases relating to claim for open delivery. In Niranjan Lal v. Union of India (AIR 1973 All 303) the principal question for consideration was whether the plaintiff consignor was entitled to claim pre- delivery assessment of damage. It was held that there was no provision in the Goods Tariff No. 31 or in the Railways Act entitling the consignee to have the damages assessed before taking delivery of the consignment. A Railway Administration is not bound to give open delivery on demand of the consignee nor has a consignee a right to refuse to take delivery of the consignment unless the damages were first assessed by the railway authorities. The rule laid down in this case is also of not any assistance in deciding the controversy in the present case.;