TATIA, J. - (1.) THIS is an appeal against the Judgment dated 5. 5. 81 by which suit of the plaintiffs Dalpat Singh and Virendra Singh against the respondents was dismissed for claim of Rs. 13,125/ -.
(2.) AS stated above, the suit was filed by plaintiffs Dalpat Singh and Virendra Singh alleging therein that plaintiff No. 2 was working as Manager in the Tea Estate in West Bengal for the last twenty years and after he left the service in the month of january 1974, plaintiff No. 2 booked 72 packages of house-hold goods from Binnaguri Railway Station no North Frontier Railway to be carried to Bhilwara on Western Railway via Lacknow, Agra, Achnera and Ajmer route vide invoice R. R. No. 083034 dated 9. 1. 74 in wagon No. N E 51642. The above wagon was loaded on 9. 1. 74 at the above station in the presence of plaintiff No. 2's servants and his ASsistant manager Sh. A. S. Maroo before the then ASsistant Station Master and his staff at Binnaguri. The gates of wagon were locked on both the sides by different size of big padlocks and were wrapped with cloths, stitched and sealed with wax by the plaintiff No. 2 before the ASsistant Station Master, Binnaguri Railway Station. Thus goods were to be received by plaintiff No. 1 who was the elder brother of plaintiff No. 2 and the plaintiff No. 2 is the owner of the goods whereas plaintiff No. 1 was only person who was to receive the goods obviously on behalf of plaintiff No. 2. According to the plaintiff, the above wagon no. NE 51642 reached at Bhilwara on 14. 2. 74 after very long time. Plaintiff No. 1 was called by Railway staff who had the keys of the wagon and the same was opened in his presence on 14. 2. 74, upon which it was found that locks of the rear side of the wagon was missing and the seals were found tampered with. On opening the gate of the wagon the goods were found disarranged and half of the wagon was found empty. The packages were unloaded on the platform, they were found short of eighteen packages. Out of 72 packages 54 packages were received at the destination station. The plaintiff submitted a list of 72 packages. The plaintiff also stated in the plaint that list of missing packages were submitted to the Station Master, Bhilwara on 15. 2. 74 by the plaintiff No. 1. It is also submitted that Station Master, Bhilwara gave certificate dated 2. 3. 74 certifying the short delivery of 18 packages. The plaintiff in his plaint gave details of the articles which were found missing an valued the above goods which is Rs. 10,500/- only. The plaintiff No. 1 submitted a claim for the short delivery of goods alongwith a list of short packages with valuation to the Station Master Bhilwara on 11. 3. 74. Thereafter the plaintiff served a notice under Sec. 78-B of the Railways Act on the defendants Railway Administration through their counsel on 18. 5. 74 which was received by plaintiff, but since the defendants failed to make payment of the above amount on lost goods booked at Binnaguri Railway Station, therefore the present suit was filed by plaintiffs for grant of decree for Rs. 13,125/- alongwith interest @ Rs. 1/- per cent and also claimed the cost of suit. The defendant-respondents submitted written statement to the claim of plaintiff in the plaint. In the written statement, it is stated that number of packages were given by the consignor in his forwarding note as 72 and on that basis, the Railway Receipt was prepared. It was admitted the wagon was locked on both sides, but also it is submitted that wagon received intact at destination. At the same time in same para No. 5 of the written statement it is states that when the goods were counted they were found only 54 in number. The defendants submitted that at the time of delivery, the consignee neither produce the list of 72 packages booked no produced the list of 18 packages booked nor produced the list of 18 packages delivering short and the list was given to the Station Master after one month i. e. on 14. 3. 77. The defendants in their written statement submitted that missing packages were containing electronic instruments, crockery and glass-were which fall under the category of "excepted Articles" and therefore, suit of the plaintiff is barred under Sec. 77 of the Indian Railways Act. It is also stated in the written statement that at the time of booking, plaintiff did not declare the value. It was admitted specifically that plaintiff produced the list of Short delivery packages to the Station Master and also admitted that notices were received by the respondents and therefore submitted that plaintiffs are not entitled for any relief therefore, the suit of the plaintiffs be dismissed. The trial Court framed as many as 8 issues in which issue No. 1 was with respect to whether Railway issued railway receipt on the basis of forwarding note? Issue No. 2 is whether the plaintiff No. 1 was a person who received the goods and plaintiff No. 2 sent the goods and issue No. 3 is with respect to the defence of defendant that there was no space in the wagon for keeping 17 more packages and the list submitted by plaintiff was submitted after one month. Issue No. 4 is with respect with to claim of plaintiff as claimed in para No. 9 of the plaint wherein the plaintiff gave description of the lost goods alongwith its value. Issue No. 5 is with respect to the fact whether suit of the plaintiff is barred under Sec. 77-B of the Indian Railways Act and issue No. 6 is with respect to entitlement of interest and issue No. 7 is with respect to the validity of notice served by the plaintiff to the defendants and issue No. 8 is of relief. The plaintiff No. 1 appeared as PW-1, plaintiff No. 2 as PW- 2, plaintiff witness A. S. Maroo as PW-3; whereas defendant examined witness DW-1 Amar Chand.
(3.) AFTER hearing the arguments, trial court, dismissed the suit of the plaintiff. It was held by the trial court that the plaintiff failed to prove the value of goods while deciding issue No. 4 and on the basis of decision given on issue No. 3 held that plaintiff failed to prove which 18 packages were missing and it was also found that rivet and seal were found intact. In view of the decision given on issue No. 5, trial Court held that in view of Sec. 77-B, plaintiff is not entitled for value of item nos. 3,4 and 5 and thereafter dismissed the suit of the plaintiff. A bare perusal of issues framed by the trial Court and the findings recorded on issues, according to learned counsel for the appellant, findings cannot be allowed to stand in view of very many reasons. According to learned counsel for the appellant, when there are trust-worthy documentary evidence alongwith oral statement of the plaintiff and plaintiff's witnesses which are not even rebutted by the defendants, then the case of plaintiff is fully proved with respect to the fact that total 72 packages were booked by the plaintiff No. 2 and 18 packages were found missing particularly in view of certificate EX. 4 dated 2. 3. 74 issued by even competent officer of the respondent. According to learned counsel for the appellant, when the respondents themselves have issued a certificate of missing articles, then findings recorded by trial court on issue No. 3 cannot be allowed to stand. According to learned counsel for the appellant, finding on issue No. 3 is based on assumptions and not on the basis of evidence available on record. Learned counsel for the appellant further submitted that no dispute was raised by defendant- respondent with respect to value of the goods or the goods given in para No. 9 of the plaint or they were not transported through Railway. A bare perusal of written statement would reveal that there is no specific denial of the facts and also there is no evidence in rebuttal; not only this, but there is no cross- examination of the plaintiffs about the value of goods shown in the plaint. The learned counsel for the respondents vehemently submitted that the trial court rightly dismissed the suit of the plaintiff and also submitted that goods which were alleged to have been booked were admitted in the plaint itself that they were covered under Schedule II of the Railways Act, 1890 and therefore, the suit for recovery of value of above goods is not maintainable in view of sub-Sec. (3) of Sec. 77 of the Act of 1890. It is also submitted by learned counsel for the respondents that plaintiff failed to prove the actual cost of the goods and also failed to prove that goods were not infact loaded in the wagon. ;