ABDUL HAKIM Vs. JODHPUR RAILWAY

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs in a suit for recovery of damages from the defendants-respondents.

(2.) A marble statue weighing 108 mds. and 13 seers packed in gunny bags and straw was consigned by Badrinarain Malpani on 9th December 1939 from Makrana on the then Jodhpur Railway for being carried to Palitana on the then Bhavnagar State Railway. The consignee was 'self. It was alleged by the appellants that the Station Master accepted the goods for carriage on 9th December 1939 but gave the Railway Receipt No. 694729 to the consignor on the 11th December 1939. It was also alleged that the statue had been consigned at railway risk and the highest freight payable had been offered to be paid. Badrinarain endorsed the Railway Receipt to Abdul Gani, who in turn transferred it to Varma & Co. Varma & Co., transferred it to their agent Abdul Hakim. It was alleged that the statute was loaded in an open wagon and while the wagon was running between Kuchaman Road and Gudha on the then B.B. & C.I. Rly. the consignment caught fire. The Station Master Gudha detached the wagon and extinguished the fire. But on the morning of 12th December 1939 the Station Master again noticed fire in that wagon and by the time the fire was extinguished the statue had broken into pieces. Abdul Gani had also consigned 84 marble blocks weighing 112 mds. and 37 seers on 10th December 1939 from Makrana under Railway Receipt No. 694730 to Palitana and this railway receipt was also finally endorsed in favour of Abdul Hakim. Both these consignments had been loaded in the same wagon. The two consignments reached Palitana and were offered to the consignee but as the statue had become useless and marble blocks had been spoiled the consignee refused to accept them and the present suit for compensation in the sum of Rs. 10,296/9/- was instituted in the court of District Judge, Jodhpur. Abdul Hakim and two other persons proprietors of Messrs. Varma & Co. are plaintiffs in the case while the Jodhpur Railway, Bhavnagar State Railway and the B.B. & C.I. Rly. are defendants. Owing to the taking over of the Jodhpur and Bhavnagar Railways by the Rajasthan and Saurashtra States and thereafter by the Union of India, the respondent in the case is the Union of India as representing the former Jodhpur Railway, Bhavnagar State Railway and the B.B. & C.I. Rly.

(3.) LEARNED counsel for the respondent urged that the Railway Receipt Ex. P. 3 was the contract between the parties for carnage of goods and on that Railway Receipt there was an endorsement by a seal in big letters that the consignment was being carried at owner's risk and therefore on the fact of the contract the railway was not responsible for damage caused by fire. The plaintiffs' reply to this argument is that the Railway Receipt had not been delivered to the consignor till the 11th December and the consignor had therefore no occasion to object to such an endorsement having been made on the Railway Receipt. It may be mentioned that this reply is not correct, although it had been set up even during the correspondence prior to the institution of the suit. In connection with the proof of the price of the statue the plaintiffs have produced two documents Ex. P. 1 and Ex. P. 2. Ex. P. 1 is a receipt by Abdul Gani passed in favour of Varma & Co. for Rs. 7511/- as the price of the statue and is dated 7th December 1939. It is mentioned in this document that Abdul Gani would receive a further sum of Rs. 401/- on account of customs duty and loading charges on delivery of the railway receipt. Ex. P.2 is dated 9th December 1939 and purports to be a receipt for Rs. 401/-executed by Abdul Gani in favour of Varma & Co. and it is specifically mentioned that this money had been received by Abdul Gani after delivery of the Railway Receipt to Varma & Co. This document proves beyond any doubt that the railway receipt had been given to the consignor on the 9th December 1939 and he gave it to Abdul Gani who passed it on to Varma & Co and received Rs. 401/- as agreed to by document Ex. P. 1.