In order to fasten liability on railways for shortage/damage to goods, the plaintiff must first prove actual loss or damage and then shortage/damage certificate is to be looked into for determining the measure of damages.

S. K. MOHANTY, J.

( 1 ) THIS defendant's appeal arises out of a suit for damages in respect of 81 consignments of wagon loads of cement dispatched by the plaintiff company by railways to different destinations as per the schedule attached to the plaint.

( 2 ) PLAINTIFF's case, in brief, was that all the consignments were booked to self to different destinations and while taking delivery at the destination stations, shortage and damages to the consignments were detected. Plaintiff thereupon took delivery against damage / shortage certificates. It is alleged that the shortage / damage was in transit due to fault and negligence of the railways. Plaintiff thereupon issued statutory notices under the Indian Railways Act and as they bore no fruit, further issued notices under Section 80 of the Code of Civil Procedure. In spite of such notice plaintiff's claim was not settled and therefore, it brought the suit for realisation of Rs. 17,430. 42 paise, being the value of the goods damaged and short delivered; along with interest of Rs. 261 / -.

( 3 ) WHILE contesting plaintiff's claim, defendant contended that all the consignments were booked in full wagon loads, loaded by the plaintiff in its railway siding and the wagons were received at the destinations station with seals in tact and were unloaded by the plaintiff. Thus the railways never personally handled the goods. As such, the alleged loss or damage to the goods was due to plaintiff's negligent handling or the goods being in defective condition or having been defectively packed and for such reasons, the defendant cannot be made liable. It is further contended that the damage / shortage certificates issued by the railways besides being without prejudice, do not amount to acknowledgment of defendant's liability and in above facts, plaintiffs suit basing on the certificates is liable to be dismissed.

( 4 ) THE learned Subordinate Judge came to find that the suit consignments were booked under railway risk, and disbelieving the defence evidence that the wagons reached the destination stations in tact on the ground of issue of shortage certificates, held that the damage/ shortage to the goods was caused through negligence of the railways. Ultimately the learned Subordinate Judge allowed plaintiffs claim for which original damage / shortage certificates had been filed and

accordingly decreed plaintiffs suit in part for Rs. 9,858. 48 paise with future interest at 6 per cent per annum. The present appeal is directed against such decree.

( 5 ) MR. Pal for the defendant-appellant argued that the wagons having reached destination station with seals in tact and plaintiff having not led any evidence to show the weight of the goods, their condition and if they were properly packed at the time of despatch, plaintiffs suit basing on damage / shortage certificate should have been dismissed. He submitted that in this connection, the learned Subordinate Judge has wrongly cast the onus on the defendant of proving the above aspects at the time of loading and should not have jumped to the inference of damages during transit merely basing on the certificate.

( 6 ) IT is not disputed at the hearing that the suit consignments, 81 in number were booked on different dates between 1970 and 1972, there is a railway track from Bargarh Railway Station to the plaintiff's factory and at its siding the cement bags in question were loaded in fully covered leak-proof wagons by the plaintiffs people, and all the consignments were sent in full wagon-loads.

( 7 ) P. W. 1 claims to be a Clerk in the Sales Department in plaintiffs factory. He further claims that previously he was in charge of railway loading and that at the time of loading of the suit consignments, the goods Clerk of the Railway was present to check the condition of the goods, number of bags and other details. According to him, after loading the Railway Seal Man seals the wagons after satisfaction of the Booking Clerk. As against above evidence,