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HIGH COURT OF PATNA
H. MAHAPATRA, TARKESHWAR NATH, JJ.
Union of India
Versus
Motilal Kamalia
A.F.O.D. Nos.263 and 264 of 1956
Decided On : 14-09-1961
RAILWAY - Non-delivery of goods - Liability of railway administration - Endorsement of railway receipts - Consideration - Insurance - Liability of insurance companies - Interest - Award of interest for period preceding suit.
Fact of the Case:
The plaintiffs, traders carrying on business in the name and style of Messrs Sri Rampratap Kamalia Mills, filed two money suits in the Court of the first Additional Subordinate Judge, Gaya, for recovery of money by way of damages for non-delivery of two consignments at Forbesganj, a station on the Assam Railway, which had been booked from Paimar railway station on the East Indian Railway to be carried at railway risk. The defendants were the Union of India as representing the East Indian Railway, the Oudh and Tirhut Railway and the Assam Railway, two insurance companies, and two other persons. The plaintiffs alleged that the defendants Sohanlal and Jugal Kishore, who carry on business at Warsaliganj in the name of Sitaram Radha Kishun, booked nine bags of black pepper at Paimar Railway Station on the 25th September, 1950, under invoice No.3, and railway receipt No.611192 to be carried to Forbesganj. On the 9th October, 1950, the deceased Balchand Saraogi, another trader at Gaya, booked a consignment of 16 bags of black pepper at Paimar Railway Station for carriage to Forbesganj at railway risk under invoice No.4 and railway receipt No.611193. The bags in both the consignments were new double gunny bags securely packed, the stitched portions being painted in green. The first consignment bore on the bags private marks as SRWRS (25) and the second PBBCS. The railway marks of the consignments were respectively 701 and 707. The first consignment was insured with Messrs National Fires and General Insurance Company of Calcutta for the transit. The railway receipt of the second consignment was endorsed by Balchand Saraogi in favour of Sitaram Radha Kishun who got the consignment insured with Messrs Gladstone Lyall and Company of Calcutta, Both the Railway receipts were again endorsed in favour of the plaintiffs for valuable consideration by the firm Sitaram Radha Kishun.
Finding of the Court:
The court found that the railway administration had failed to prove that the content of the consignment at Paimar was Chilli and not black pepper. The court also found that the transactions of black pepper between the different firms before it came to the hands of the plaintiffs have been proved quite satisfactorily. The court further found that the railway administration and their servants dealing with the consignments at different stages were not guilty of any fraudulent conduct, and they had taken all possible care and precaution about the consignments, and there was no misconduct or negligence on their part in any way. The court also found that the plaintiffs were entitled to claim damages from the railway administration for the non-delivery of the goods.
Issues: 1. Whether there was non-delivery of the two consignments at Forbesganj? 2. Whether the plaintiffs have any right to claim damages for such non-delivery.
Ratio Decidendi: 1. The court held that the railway administration had failed to prove that the content of the consignment at Paimar was Chilli and not black pepper. The court also found that the transactions of black pepper between the different firms before it came to the hands of the plaintiffs have been proved quite satisfactorily. The court further found that the railway administration and their servants dealing with the consignments at different stages were not guilty of any fraudulent conduct, and they had taken all possible care and precaution about the consignments, and there was no misconduct or negligence on their part in any way. The court also found that the plaintiffs were entitled to claim damages from the railway administration for the non-delivery of the goods. 2. The court held that the plaintiffs were entitled to claim damages from the railway administration for the non-delivery of the goods.
Final Decision: The appeals were partly allowed. The decrees passed in the two money suits were varied to the extent that the liability of the insurance companies was limited to the sums not exceeding the amount for which they insured the consignments, namely, Rs.16,350 in the case of Gladstone Lyall and Company Limited, and Rs.9,000/- in the case of the National Fire and General insurance Company Limited. The plaintiffs were allowed costs of both the courts in proportion to their success in the appeal against defendant No.1 only. In both the appeals there was only one hearing fee. Defendant No.1 (Union of India) was allowed 90 days time from the preparation of the decree in this court to pay the decretal dues in both the cases.
MAHAPATRA, J.:- In both the appeals, the Union of India as representing the East Indian Railway, the Oudh and Tirhut Railway and the Assam Railway, is the appellant. They were the defendant No.1 in two money suits in the Court of the first Additional Subordinate Judge, Gaya, numbered as Money Suit No.3/2 and 4/1 of 1952/1956. The suits were filed first in the Court of the Subordinate Judge 1st Court, Gaya, but during the trial they came before the 1st Additional Subordinate Judge at that place. That explains the two different numbers given to each of the two suits. The plaintiffs in both the suits were Sri Motilal Kamalia and Sri Kashi Prasad Kamalia, sons of Sri Rampratap Kamalia, who were traders carrying on business in the name and style of Messrs Sri Rampratap Kamalia Mills at Warsaliganj in the district of Gaya. They impleaded also two insurance companies, Messrs. National Fires and General Insurance Company Limited of Calcutta in the former suit and Messrs Gladstone Lyall and Company Limited of Calcutta in the latter. Two other persons, Sohanlal Saraogi and jugal Kishore Jain were also common defendants in the two suits. Balchand Saraogi, who was expunged on account of his death, was another defendant in the second suit. The plaintiffs laid both the actions for recovery of money by way of damages for nondelivery of two consignments at Forbesganj, a station on the Assam Railway, which had been booked from Paimar railway station on the East Indian Railway (now known as Eastern Railway) to be carried at railway risk.
Their allegations were that the defendants Sohanlal and Jugal Kishore, who carry on business at Warsaliganj in the name of Sitaram Radha Kishun, booked nine bags of black pepper at Paimar Railway Station on the 25th September, 1950, under invoice No.3, and railway receipt No.611192 to be carried to Forbesganj. On the 9th October, 1950, the deceased Balchand Saraogi, another trader at Gaya, booked a consignment of 16 bags of black pepper at Paimar Railway Station for carriage to Forbesganj at railway risk under invoice No.4 and railway receipt No.611193. The bags in both the consignments were new double gunny bags securely packed, the stitched portions being painted in green. The first consignment bore on the bags private marks as SRWRS (25) and the second PBBCS. The railway marks of the consignments were respectively 701 and 707. The first consignment was insured with Messrs National Fire and General Insurance Company of Calcutta for the transit. The railway receipt of the second consignment was endorsed by Balchand Saraogi in favour of Sitaram Radha Kishun who got the consignment insured with Messrs Gladstone Lyall and Company of Calcutta, Both the Railway receipts were again endorsed in favour of the plaintiffs for valuable consideration by the firm Sitaram Radha Kishun.
On getting the information of arrival of the consignments at Forbesganj the plaintiffs sent their man to take delivery who, however, found that the bags which had really been booked at paimar had not reached there and in their stead 25 other bags without the private marks on any of them, with contents like Chilli seeds and saw dust, were offered to be delivered to the plaintiffs. They had to refuse that and, informed their grievance to railway station-master at Forbesganj on the 14th November, 1950 and the 19th December, 1950. They lodged their claim with the railway administration as well as the insurance companies. As they had no redress they brought the present suits.
2. Three sets of written statements were filed, one on behalf of Sitaram Radha Kishun another by the Insurance companies, and the third and main, on behalf of the Union of India representing the railway administration. Sitaram Radha Kishun laid support to the plaintiffs case. They only alleged that they had been impleaded unnecessarily. The defence of the insurance companies was that the plaintiffs were not the endorsees in due course and, as such, not entitled to any b
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