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PATNA HIGH COURT
Rai and Misra JJ.
Dominion Of India As Owner Of E.I.Rly.And E.P.Rly.
Versus
Ado Shaw Aklu Shaw
Appeal from Original Decree No. 404 of 1948 ;
Decided On : AUGUST 09, 1956
RAILWAYS ACT - RISK NOTE FORM C - INTERPRETATION - LIABILITY OF RAILWAY ADMINISTRATION - CONSIGNMENT OF POTATOES - DELAY IN TRANSIT - MISCONDUCT - DAMAGES.
Fact of the Case:
Plaintiff filed two money suits against the defendant, Dominion of India, for damages caused to consignments of potatoes during transit by rail. The consignments were booked under Risk Note Form C, which exempted the Railway Administration from liability for damage arising from the use of open wagons. The plaintiff alleged that the Railway Administration was negligent in not providing proper wagons, causing undue delay in transit, and failing to take proper care of the consignments.
Finding of the Court:
The court held that the Railway Administration was not bound to carry the consignments in open wagons throughout the route, as the execution of Risk Note Form C only authorized the use of open wagons at the sender's request. The court also found that there was no undue delay in transit or misconduct on the part of the Railway Administration. Therefore, the plaintiff was not entitled to damages.
Issues: 1. Whether the Railway Administration was bound to carry the consignments in open wagons throughout the route under Risk Note Form C? 2. Whether there was undue delay in transit or misconduct on the part of the Railway Administration? 3. Whether the plaintiff was entitled to damages?
Ratio Decidendi: 1. The court interpreted Risk Note Form C as authorizing the use of open wagons only at the sender's request, and not as a binding obligation on the Railway Administration to carry the consignments in open wagons throughout the route. 2. The court found that there was no evidence of undue delay in transit or misconduct on the part of the Railway Administration. The detachment of the wagons at Moradabad for two days and the use of ordinary goods trains instead of fast goods trains did not amount to misconduct. 3. Since the Railway Administration was not liable for the damage to the consignments, the plaintiff was not entitled to damages.
Final Decision: The court set aside the judgment and decree of the lower court and allowed the appeals filed by the defendant, Dominion of India. The plaintiff was ordered to pay the costs of the appeals.
Rai, J.
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 :
"(i) The consignment was abnormally delayed in the way.
(ii) Potatoes were not properly kept and wagoned keeping in view that they were perishable articles and required proper care and caution in arranging them in the wagon carrying the same.
(iii) Being perishable articles the consignment should have travelled by through trains. The wagon carrying the consignment was not the usual apt and appropriate wagon in which such articles are usually transported.
(iv) It is further understood that the wagon carrying consignment was not travelled through the usual and wanted route.
(v) The plaintiff reserves his right to argue other grounds of negligence and misconduct which might appear from the records placed by the Railway at the trial and the plaintiff calls upon the Railway to disclose and place on the record all documents and materials showing how the consignment was dealt with throughout the journey from the beginning to the end."
4. The plaintiff of Suit No. 114 levelled the following charges of wilful negligence, carelessness and misconduct against the railways concerned in paragraph 5 of the plaint
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