P.C. Pandit, J. - (1.) THIS judgment will dispose of two connected Regular First Appeals, No. 37 of 1960 (The Union of India v. The Delhi Cloth and General Mills Limited) and No. 38 of 1960 (The Delhi Cloth and General Mills Limited v. The Union of India). 1a. The Delhi Cloth and General Mills Company limited (hereinafter referred to as the Company) brought 3 suit against the Union of India, Defendant No. 1, through the General Managers of Northern and Eastern Railways, and Messrs. Ramji Das Sri Ram, Commission Agents of Calcutta, Defendant No. 2, for the recovery of Rs. 23,880/5/4. According to the allegations of the Plaintiff Company, it owned the Hissar Textile Mills. The Mills consigned to self 32 bales and 38 cases of cotton yarn on 94 -1957 from Hissar to Howrah. These goods were loaded in wagon No. ER/70041, Defendant No. 2 were the Plaintiff's agents for the sale of its goods. The aforesaid goods were despatched by the Plaintiff to Defendant No. 2 for sale as agents for and on behalf of the Plaintiff. Accordingly, the railway receipt was endorsed in favour of Defendant No. 2 to enable them to take delivery of the said consignment. Defendant No. 2 did not claim 'any right, title or interest in the said goods. These goods were received at Howrah in wagons, Nos. ER/45599 and NR/49306 on 19 -4 -1957. They were found burnt and in a spoiled condition and it was discovered that the consignment had caught fire on the way at Karota Railway Station and these were then re -loaded in the abovementioned two wagons. Before taking delivery the goods were surveyed by Messrs. Lardner North and Company, Calcutta, in the presence of Shri A. Roy Chowdhry, Special Claims Inspector," Howrah. The total loss assess ed by the said surveyor came to Rs. 28,880/5/4. According to the Plaintiff -Company, it was not possible to give full and complete particulars of the negligence and misconduct on the part of the Railway Administration or its servants in dealing with the said consignment as the said facts were within the special knowledge of the Railway Authorities. The consignment was obviously combustible, but in placing the wagon in the train, the Rail -way Administration did not take care that it should be placed at a sufficient distance from the engine so as to obviate all risk to fire. No arrangements had been made for protecting the consignment from the sparks of the engine. There was no adequate arrangement in the train itself or at the stations en route for extinguishing the fire. The Railway Administration did not take all reasonable care and precautions for protecting the afore, said consignment as they were required to do as bailees. Consequently, the said consignment caught fire on account of their misconduct and negligence. As the said loss was the result of this negligence, the Union of India was liable to make good the loss so caused to the Plaintiff. The Plaintiff served the requisite notices under Section 80 Code of Civil Procedure, and Section 77 of the Indian Railways Act. In spite of these notices, the Union of India had neglected and failed to pay the amount claimed.
(2.) THE suit was resisted by the Union of India only. It was pleaded that the same was not maintainable in Its present form; that the Plaintiff -Company had no locus standi to file it as the company was neither the consignor nor the consignee of the goods and the railway receipt had also been endorsed in favour of Defendant No. 2, who paid the freight and took delivery of the goods; and that the consignment was booked at 'Owner's Risk Rate' and the Defendant, therefore, was not liable for any damage to or destruction of the said goods. It was also averred that the goods were burnt and damaged by an accidental fire on the way to Howrah and were then transshipped at Korota from railway wagon No. ER -70041 into the two abovementioned wagons. The survey of the goods might have been done by some private firm and the Defendant had nothing to do with it, because no accredited agent was deputed by the Railway Administration for this purpose. The amount Assessed as damages was highly exaggerated and was not in accordance with facts. The wagon containing these goods left Moghalsaral Railway Station on 144 -1957. When the train stopped at Karota in Dinapur Division, it was noticed that some flames were coming out of this wagon and, consequently, the train was stopped at Karota at 22/20 hours. On being examined by the Station Master, flames and smoke were found coming out of this wagon. The same was opened and some bales and boxes were, found in burning condition. All possible attempts were adopted to fight the fire and later on with the help of the fire -brigade, it was brought under control. There had been no negligence or misconduct on the part of the Railway Administration or its employees. The fire was not caused by the sparks from the engine because it was fitted with a spark -arrestor. The wagon was examined by the Head Train Examiner and no crevices or openings were found in its body, it was otherwise also found fit for loading and no inflammable or combustible articles, which could have caused the fire, were loaded in it. The Railway Administration took all reasonable; care and precautions to protect the goods, but their liability did not extend to that of a bailee as the consignment was booked at "Owner's risk rate", thus absolving the Defendant from, any liability for loss or damage from any cause whatsoever. The goods got burnt due to a purely accidental fire, over which the Railway Administration had no control and the Defendant was, there -fire not liable to pay any compensation to the Plaintiff, The said fire was not caused on account of any negligence or misconduct of the Railway employees. The notices sent by the Plaintiff, being irregular and not in accordance with law, were inoperative. It may be mentioned that Defendant No. 2 filed a separate written statement, in which he admitted the allegations made by the Plaintiff.
(3.) A replication was also filed by the Company in which the allegations made by the Defendant were traversed and its own allegations made in the plaint were reasserted.;