DOMINION OF INDIA AS OWNER OF E I RLY AND E P RLY Vs. ADO SHAW AKLU SHAW

JUDGEMENT

(1.) These two appeals arise out of two money suits filed by the same plaintiff-respondent against the defendant-appellant for damages. First Appeal No. 423 of 1950 arises out of Money Suit No. 113 of 1947 which was valued at Rs. 2,400 only. First Appeal No. 404 of 1948 arises out of Money Suit No, 114 of 1947 valued at Rs. 6,432. Both the suits were heard together by Mr. S.M. Karim, Subordinate Julge, Dhanbad, and they were governed by the same judgment. Both the suits were decreed with costs. The defendant, Dominion of India, as owner of the East Indian Railway Administration and the Eastern Punjab Railway Administration as it was called then filed, two appeals. Against the judgment and decree passed in Money Suit No. 113 of 1947 an appeal was filed before the District Judge of Purulia which was subsequently transferred to this Court and was numbered as First Appeal No. 423 of 1950. First Appeal No. 404 of 1948, however, was filed by the Dominion of India directly in this Court. Both these appeals have been heard together and they will be governed by the same judgment. Both the money suits related to consignment of a number of bags of potatoes from Kendaghat station on the Kalka-Simla line to the railway station Jharia. Money Suit No. 113~of 1947 related to a consignment of (125 bags (250 maunds) of potatoes booked on 14th September, 1946, from Kendaghat to Jharia under receipt No. 40604. Money Suit No. 114 of 1947 related to a consignment of 201 bags (402 maunds) of potatoes booked on 14th September, 1946, from Kendaghat to Jharia under railway receipt No. 39249. Both the consignments reached Jharia station wrist October, 1946, at about 8 a.m. The consignments of both the wagons were unloaded at about 10 a.m. and the plaintiff took delivery of the same at about 2 p.m. after assessment of the percentage of loss. It appears that when the consignments reached Jharia and were unloaded at the station platform it transpired that some of the potatoes had decayed during transit. According to the case of the plaintiff, 30 per cent, of the consignment which was the subject-matter of Money Suit No. 113 of 1947 had become wholly unfit for human consumption. The plaintiff in Suit No. 113 of 1947 claimed damages at the rate of Rs. 32/- per maund in respect of 75 maunds of rotten potatoes. Thus the claim in that suit amounted to Rs. 2400.

(2.) The claim made in Money Suit No. 114 of 1947 was in respect of 201 maunds of potatoes which, according to the plaintiff, had become completely unfit for human consumption, and the damage claimed in that suit at the rate of Rs. 32/- per maund amounted to Rs. 6,432.

(3.) In paragraph 5 of the plaint in Money Suit No, 113 of 1947 the plaintiff charged the Railways concerned with wilful negligence, carelessness and misconduct and the particular charges levelled against the Railways were as follows :