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1988 Supreme(Ori) 9
High Court Of Orissa
K. P. MOHAPATRA
UNION OF INDIA - Appellant
Versus
KHETWAT OIL MILLS - Respondent
First Appeal 186 Of 1975
Decided On : 01/20/1988
A.S.Naidu, B.Pal
A notice under S. 78-B of the Indian Railways Act can be served either on the General Manager or the Chief Commercial Superintendent of the railway concerned, and service on the Chief Commercial Superintendent is deemed to be service on the railway administration.
Headnote:
RAILWAY - LIABILITY - SHORTAGE OF GOODS IN TRANSIT - NOTICE UNDER S. 78-B OF THE INDIAN RAILWAYS ACT - SERVICE ON CHIEF COMMERCIAL SUPERINTENDENT - VALIDITY - INTERPRETATION OF S. 140 OF THE ACT - COMPENSATION - PRICE OF GOODS NOT DELIVERED - PRICE OF GUNNY BAGS - PROPORTIONATE RAILWAY FREIGHT.
Fact of the Case:
Plaintiff, a registered partnership firm, purchased 160 bags of mustard seeds from a vendor in Gujarat and arranged for their transportation by rail to Baripada Railway Station. The goods were booked under railway risk rate, and the plaintiff's vendor endorsed the railway receipt in the plaintiff's name. Upon taking delivery of the consignment, the plaintiff found that 70 bags were missing and some of the remaining bags were torn and damaged. The plaintiff served statutory notices under S. 78-B of the Indian Railways Act and S. 80 C.P.C. on the South Eastern and Western Railways, claiming compensation for the shortage and damage.
Finding of the Court:
The court held that the plaintiff had title to the goods, that there was proper service of statutory notices under S. 78-B of the Act and S. 80 C.P.C., and that the plaintiff was entitled to compensation for the shortage and damage. However, the court excluded the claim for the price of 20 gunny bags.
Issues: 1. Whether the plaintiff had title to the goods? 2. Whether there was negligence on the part of the railway? 3. Whether notices under S. 78-B of the Act and S. 80 C.P.C. were served on the South Eastern Railway? 4. Whether the money value of the loss sustained by the plaintiff was established?
Ratio Decidendi: 1. The court found that the plaintiff had title to the goods based on the evidence of the plaintiff's witness who was present when the goods were purchased and loaded, the beejuck showing the sale of the goods to the plaintiff, and the entry in the Rokod showing payment of the sale price. 2. The court inferred negligence on the part of the railway from the fact that the goods were properly packed and loaded at the starting station but were received short and damaged at the destination station, and the railway did not adduce any evidence to prove that proper care and caution were taken during transit. 3. The court held that the notices under S. 78-B of the Act and S. 80 C.P.C. were duly served on the South Eastern Railway, as they were received by the Chief Commercial Superintendent (Claims) and the General Manager of the railway, respectively. The court relied on S. 140 of the Act, which provides that a notice under S. 78-B can be served either on the General Manager or the Chief Commercial Superintendent of the railway concerned. 4. The court found that the money value of the loss sustained by the plaintiff was established based on the shortage certificate issued by the railway and the evidence of the plaintiff's witness.
Final Decision: The court allowed the appeal in part and decreed the plaintiff's suit for Rs. 16,552.36 with proportionate costs throughout and future interest at the rate granted by the trial court.
K. P. MOHAPATRA, J.
( 1 ) THIS appeal is directed against the judgement of the learned Subordinate Judge, Baripada, passing a decree in favour of respondent No. 1 for a sum of Rs. 17,260. 10 claimed as compensation for shortage of goods in transit with the appellant.
( 2 ) THE case of respondent 1 (plaintiff) is that it is a registered partnership firm having its oil mill at Baripada. It purchased 160 bags. of mustard seeds, each bag weighing 85 kg. , from Ambelal Madhab Das and Co. of Raja Bazar, Unjha, in Gujarat at the rate of Rs. 254/- per quintal inclusive of taxes and incidental charges as per beejuck dt. 15-9-1973 (Ext. 1), the total price being Rs. 34,091-00. The plaintiff's agent delivered the aforesaid 160 bags to the Western Railway (respondent 2) at Unjha Railway Station for transport on rail to Baripada Railway Station within the jurisdiction of the South Eastern Railway (respondent 1 ). The goods were booked under invoice No. 27 and railway receipt No. 351708 dt. 15-9-1973 at the railway risk rate, the consignor and the consignee of the consignment being the plaintiff's vendor Ambelal Madhab Das and Co. The goods were loaded being duly packed in gunny bags and were kept within the wagon properly secured with dunnage under the supervision of the plaintiff's agent and the employees of the Western Railway posted at Unjha Railway Station. The plaintiff's vendor endorsed the railway receipt in the name of the former and sent the same through the State Bank of India which was released by the plaintiff on full payment of the price of the consignment. On 7-11-1973 at the time of taking delivery of the consignment, it was found that out of 160 bags of mustard seeds, only 90 bags were available inside the wagon, the rest 70 bags missing. Out of the 90 bags, a few were torn and loose and a part of the contents missing or otherwise damaged, Therefore, the plaintiff was forced to take short delivery of the consignment, the shortage being estimated at 60 quintals and 34 kgs. of mustard seeds. A shortage certificate (Ext. 3) was granted by the employee of the South Eastern Railway at Baripada Railway Station. It is averred that the shortage occurred on account of the negligence of the railway in dealing with the consignment while on transit, as a result of which the plaintiff sustained loss. In order to recover compensation, notices under S. 78-B of the Indian Railways Act (Exts. 4 and 4/a) (hereinafter referred to as 'the Act') and under S. 80 C. P. C. (Exts. 7 and 7/a) were served on the Chief Commercial Superintendent (Claims) and the General Manager of the South Eastern and Western Railways which were duly received and acknowledged by them. As the claim was not settled, the plaintiff claimed the price of the goods lost in transit, price of the gunny bags and the proportionate railway freight, all amounting to Rs. 17,320. 10, as per the statement in Schedule 'b' of the plaint.
( 3 ) THE suit was contested and written statement was filed by the South Eastern Railway (defendant 1 - appellant ). It was stated that the suit was hit by S. 69 (2) of the Indian Partnership Act. The plaintiff had no title in the goods. Whatever goods were loaded by the sender were delivered to the plaintiff and so the South Eastern Railway was not responsible for any loss. Statutory notices under S. 78-B of the Act and 80 C. P. C. were not served on the railway. The claim was also exaggerated.
( 4 ) THE learned Subordinate Judge held that the suit was not hit by S. 69 (2) of the Indian Partnership Act, the plaintiff had title to the goods, there was proper service of statutory notices under S. 78-B of the Act and 80 C. P. C. and the plaintiff was entitled to compensation. Accordingly, excluding the claim of Rs. 60/- representing the price of 20 gunny bags, he passed a decree for the balance amount of Rs. 17,260. 10 with proportionate costs and future interest.
( 5 ) MR. B. Pal, learned counsel appearing for the appellant, raised the following co
