Judgement Key Points

SALIL KUMAR DATTA, J.

( 1 ) THIS is an appeal by the Union of India against the judgment and decree of reversal decreeing the plaintiff's suit for compensation for damages in transit of a consignment of mangoes.

( 2 ) ACCORDING to the plaint, a consignment of 451 baskets of mangoes was booked on May 13, 1956 at Coconada port for delivery at Shalimar. Normally the time taken for delivery was 5/6 days but the consignment, in the instant case, was seriously delayed in transit due to the negligence of the railway with the result that the consignment arrived at destination on May 25, 1956 in damaged and decomposed condition. Assessment delivery was taken and damage assessed by the Railway was 75%. The plaintiff accordingly suffered loss for Rs. 2875-2-0. Requisite notices under the law were served on the General Managers of the Railways concerned and as the amount claimed was not paid the present suit was instituted by the plaintiff as the consignee, for valuable consideration.

( 3 ) THE defendant, the Union of India, contested the suit by filing a written statement wherein the alleged liability was denied and it was also stated that the delay if any, was due to a strike by the Khurda Road Station guards and as such the Khurda Road Station was rot able to take the train during the time. The delay, if any, was thus unavoidable and was not due to negligence or misconduct of the railway employees. The wagon holding the suit consignment arrived at Waltair on May 15, and left Palasa on 20th to reach Bhadrak on 22nd. It left Kharagpur on 24th reaching destination on the following day i. e. May 25, 1956. The damage was due to the bad condition of the goods and inherent vice therein. The notices were not legal or valid while the damage claimed was excessive. In the premises the defendant prayed for dismissal of the suit.

( 4 ) THE suit was tried on evidence before the learned Munsif who held that suit was maintainable by the plaintiff and further on concession that requisite notices were legal and valid. It was however found that there was unavoidable delay and the consignment got damaged because of inherent vice. The damage claimed was fair but in the view that was taken as above, the suit was dismissed.

( 5 ) AN appeal was preferred by the plaintiff against the said decision and the appellate court held that the strike at Khurda Railway Station was not sole reason for such delay. The finding of the trial court as to the inherent defect in the goods was held to be based on conjecture and assumption and was set aside. The court also found that 5/6 days was the usual time for such transit and it was held in the circumstances that the delay was caused due to carelessness and negligence on the part of the railway. The appeal was, accordingly, allowed and the suit was decreed for the amount claimed. The present appeal is by the Union of India against the said decision.

( 6 ) MR. A. K. Basu, the learned counsel appearing for the appellant has contended that the appellate court erred in not considering the provisions of Section 74-C of the Indian Railways Act after amendment of 1949 which governed the case. The court further erred in not holding that in absence of any evidence by the plaintiff that there was misconduct or negligence on the part of the railways, the onus in respect whereof lay with the plaintiff, the railways were not liable for the amount claimed in the suit. Mr. Basu also contended that the plaintiff was further required to prove that the delay, if any, caused the damage to the consignment which was not done. The suit therefore, should have been dismissed.

( 7 ) MR. C. Tondon the learned Advocate appearing for the plaintiff-respondent contended that the railway was to prove that there was no negligence on its part, as the movement of the wagon was within its special knowledge; that the railway was to prove that it took reasonable care of the consignment as a bailee as also provided in Section 76. In the instant case, the

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