D.V. Sehgal, J - (1.) MESSRS Bombay Oil Mills Private Limited, Bombay, consigned five barrels of coconut oil having a gross weight of 180(sic) K/Gs on 26th June, 1970, from Carnal Bridge Goods Station Bombay of the railways to be delivered to Plaintiff -Respondent No. 1 at Patiala. The goes were no doubt booked at the owner's risk The barrels were made of steel sheets and were in sound condition and no adverse remarks as to their condition were entered in forwarding note by the railway employees at the time of booking Respondent No. 1 took delivery of the barrels of coconut oil on 31st January, 1970, at Patiala and noticed that there was a cut 2 inch wide at a height of 4 inches from the bottom of one of the barrels which was found empty The railway employees at Patiala checked the damaged drum and issued a certificate to that effect The loss caused was assessed as under: JUDGEMENT_73_LAWS(P&H)1_1986.htm On the claim made by the Plaintiff, the General Manager, Northern Rail way, failed to pay damages for the loss occurred to the Plaintiff The Chief Commercial Superintendent (Claim) Northern Railway, instead rejected the claim The Plaintiff thus filed the instant suit for recovery of Rs 1575/ - along with interest at the rate of 12%(sic) per annum, the total claim in suit being Rs. 2,100/ The Union of India owning and representing Northern Railway. New Delhi, and Western Railway, Bombay, through their respective General Managers resisted the suit They denied the fact that the Plaintiff is a private limited company or that Om Sarup through whom the suit was filed, was its Managing Director. It was alleged that there was some latent defect in the drum which apparently could not be discovered and as such no adverse remarks could be given at the time of booking of the consignment. It was contended that the drum was found leaking from the bottom and thus there was no misconduct or negligence on the part of the railway. The legality of the notice served on the Defendants was also disputed It was also alleged that the suit was not within time. After trial, the learned Sub Judge 1st Class, Patiala, vide his judgment and decree dated 30th August, 1975, decreed the Plaintiff's suit for Rs 1575/ as damages. On appeal, the learned District Judge, Patiala, upheld the judgment and decree of the trial Court and dismissed the appeal vide his judgment and decree dated 5th November, 1976 The Union of India, owning the representing Northern Railway, New Delhi, Defendant, thus preferred the present regular second appeal.
(2.) I have heard the learned Counsel for the Appellant at length. His main contention is that the consignment was booked with the Railway at the owner's risk It was, therefore, for Respondent No. 1 to prove that there was any negligence or misconduct on the part of the servants of the Appellant He contended that the loss bad occurred due to the leakage of the barrel and not because of any alleged misconduct on the part of its employees. The evidence brought on the record has been discussed threadbare by the Courts below and a firm finding of fact was recorded that the coconut oil from the barrel was not lost due to leakage but due to deliberate creation of a cut or a hole measuring 1 -1/2 inch during transit, for which the Appellant was squarely liable. In view of this finding of fact, the case law referred to by the learned Counsel is absolutely of no avail to the Appellant. The learned Counsel for the Appellant next contended that On Sarup did not have the authority on behalf of the company -Respondent No. 1 to file the instant suit. A copy of the general power of attorney executed on behalf of the company appointing Om Sarup as its general attorney was placed on record as Exhibit P 15. The original power of attorney was also brought in court No objection whatsoever to its due execution and authenticity was raised at the time of its production There is a presumption of due execution and authenticity of a power of attorney. No doubt this presumption is rebuttable, but no evidence whatsoever has been brought on record by way of rebuttal A general attorney of the company has the authority to institute suit on its behalf and in fact this power has been specifically given to Om Sarup through the power of attorney Exhibit P -15. No separate resolution, as contended by the learned Counsel for the Appellant, was required to be passed by the company for institution of this suit There is thus no force even in the second contention of the learned Counsel for the Appellant I, therefore, affirm the judgments and decrees passed by the Courts below.
(3.) CONSEQUENTLY , this appeal is dismissed with no order as to costs.;