1. 1. This appeal is directed against the judgment and decree dated 8.2.1989 passed by the Additional District Judge, Sikar in Civil Suit No. 7/87, whereby the suit for damages preferred by the plaintiff-appellant against the defendants-respondents has been dismissed.

2. The material facts giving rise to the present appeal are summarised thus :

M/s. Dungarmal Shyam Sunder of Surajgarh district Jhunjhunu entered into an agreement with M/s. Yaladam Lakshmaih & Co., Madras to purchase 160 bags of millet for consideration of a sum of Rs. 16,000/-. It is alleged that before the goods were actually transshipped from Tindivanam Railway Station, the plaintiff-appellant purchased the ownership of the goods after making full payment to M/s. Dungarmal Shyam Sunder. Accordingly, the original seller at Tindivanam was instructed to direct the goods for delivery to the plaintiff-appellant at Sikar. The goods were dispatched from Tindivanam for Sikar vide railway receipt No. 739095 dated 12.9.1978 in railway wagon no. 2604. The goods were not delivered by the railway to the plaintiff- appellant at the destination within the reasonable time. The plaintiff- appellant contacted the authorities of the Railway at Sikar time and again but, the authorities informed that the goods have not reached the destination so far. On 19.1.1979, the plaintiff-appellant was informed about the arrival of the goods at Railway Station, Sikar. Instead of wagon no. 2604, the goods were brought to Sikar in wagon on 31326. A slip pasted outside the wagon disclosed that during transit some accident had taken place somewhere between Railway Stations Dalauda. and Mandsaur, therefore, the goods were transshipped to wagon No.31326. Apparently, the goods were in highly damaged condition, therefore, suspecting foul play, the plaintiff-appellant claimed open delivery. The railway agreed to open delivery only after receiving a sum of Rs. 2055/- as demurrage. The amount was deposited by the plaintiff-appellant. During the course of open delivery, the bags were found in torn condition and the goods in highly damaged condition. Most of the consignment was no more fit for corksumption of even animals what to say for human consumption. On open delivery, the assessment of the damages was made by the railway authorities and for this purpose the damaged goods were categorised in three grades. The quantity of the goods in the different grades, percentage of damage and the loss in terms of money were determined as under:-

The goods were found short by 33.84 qunitals, value whereof was quantified at Rs. 3779.08. Thus, the plaintiff-appellant claimed that he was entitled for the damages quantified at Rs. 13,512.20. The plaintiff-appellant also claimed interest w.e.f. 12.9.178 to 11.10.1980 @ 1% per month quantified at Rs. 3378/-. The plaintiff-appellant served a notice through his counsel on the authorities of the railway under Section 80 of the Civil Procedure Code read with 78-B of the Indian Railways Act, 1890. Since, the notice was not responded, the plaintiff-appellant preferred a suit for recovery against the defendants-respondents before the District Judge, Sikar.

3. The suit was contested by the defendants-respondents by filing a written statement on behalf of defendant No.1 Union of India through the General Manager, Western Railway wherein while transshipment of the goods from Tindivanam for destination Sikar vide railway receipt No. 730935 dated 12.9.1978, in wagon no.2640, was admitted by the defendants-respondents, the ownership of the goods of the plaintiff-appellant was denied. It was admitted that the goods reached the destination at Railway Station, Sikar on 20.1.1979, however, it was stated that the goods train in which the goods were loaded from Tindivanam met with an accid