The Railway Administration is not liable for the shortage of goods loaded at the consignor's siding without supervision by the railway staff.

BEHERA, J.

( 1 ) THE suit instituted by the plaintiff respondent against the Union of India, represented through the General Manager, South Eastern Railway, who is the appellant herein, for recovery of a sum of Rs. 31,556. 82 paise on account of short delivery by the Railway Administration has been decreed by Mr. D. C. Guru, Subordinate Judge, Sambalpur, accepting the claim that the plaintiff respondent, being the owner of a consignment of 1122 pieces of aluminium ingots booked under railway receipt No. 335024 dated June 15, 1972 from Renukoot to Sambalpur after being checked by the Railway Administration, suffered shortage of 252 pieces of aluminium ingots weighing 5412 Kgs. When the consignment reached the Sambalpur Railway Station without the original seal and rivet for which the plaintiff had demanded open delivery and the Railway Administration had granted shortage certificate (Ext. 5), which, according to the findings of the learned Subordinate Judge, was owing to the negligence and misconduct on the part of the Railway Administration and their servants, while rejecting the case of the defendant-railway that the suit consignment was a wagon load booked under the 'l/u' condition by Hindusthan Aluminium Corporation Limited at their siding and unloaded by the plaintiff and that the loading had not been superivsed by the railway staff and the wagon had been sealed at the plaintiffs siding and, therefore, whatever had been loaded by the consignor had been delivered to the plaintiff and the defendant carrier was not responsible for the alleged shortage. The cases of both the parties pleaded by them have been set out in details in the body of the impugned judgement. Both the sides had relied on oral and documentary evidence. The plaintiff-company had examined one witness and the Railway Administration had examined two witnesses. Ext. A is the original railway receipt and Ext. 5 is the shortage certificate.

( 2 ) IT has been contended by Mr. Pal for the appellant that the learned Subordinate Judge has unreasonably held on the basis of Exts. A and 5 and the evidence on record that the defendant-railway was responsible for the alleged shortage and in view of the provisions made in S. 73, Railways Act (IX of 1890) (for short, 'the Act'), no liability can be fixed on the Railway Administration, in the absence of evidence showing that the goods had actually been delivered to the Railway Administration and the loading had been supervised by the railway staff at the siding of the consignor where the wagon had been loaded. It has been submitted on behalf of the respondent that the findings recorded by the learned Subordinate Judge cannot be assailed and are legal, reasonable and proper on the facts and in the circumstances of the case.

( 3 ) THE only witness examined on behalf of the respondent-company is its Claims Assistant dealing with the railway consignments and the claims of the plaintiff-company. He has no idea about the actual loading of the wagon at the consignor's siding at Renukoot. He is the person who had gone to take delivery of the consignment at Sambalpur and according to him, the seals of the wagon were not intact for which he demanded open delivery. He has spoken about the notices under S. 78-B of the Act and S. 80, Civil P. C. Ext. A is the original railway receipt and he has testified that the plaintiff's man was present when the aluminium ingots were loaded at Renukoot. That person of the plaintiff who was said to be present at the time of loading has not been examined on behalf of the plaintiff-respondent. As deposed to by P. W. 1 himself, the plaintiff has not mentioned in the claim notice that the original seals of the wagon were not intact.

( 4 ) D. W. 1 for the Railway Administration is the Senior Assistant of the Punjab National Bank. His evidence is not of much consequence in so far as the contentions raised by the learned counsel for both the sides are concerned. D. W. 2 for the Railway Administration wa