A railway is not liable for damage or loss of property unless written notice is given to the Station Master before delivery and removal of the property from the railway premises.

N.K.Kapoor, J.

1. This is unsuccessful plaintiffs first appeal against the judgment and decree dated 14.5.1979 of Sub Judge 1st Class, Jalandhar, whereby plaintiffs suit for recovery of Rs. 21960.73 as damages for short delivery of goods has been dismissed.

2. It is the case of the plaintiff that it had booked steel black sheets 24.020 M.T. at Tata Nagar South Eastern Railway Station for delivery at Jalandhar Cantt, Railway Station of Northern Railway vide Railway Receipt No. 986105 Invoice No. 1118 of 19.2.1975. This consignment was booked in wagon No. 43043-SE after complying with Rule P-41 and the weighment having been taken by the Railway Staff as per remarks made on the railway receipt and the wagon in question which arrived at Railway Station, Jalandhar, on 14.3.1975 in broken condition. According to the plaintiff, bundles were found to be in broken condition and so a request was made to the defendants for weighed delivery but this request was declined and so goods were received under protest. Subsequently, on weighing the same it was found that there was short delivery of 11.030 M.T. steel sheets.

3. The defendants in their written statement while admitting the booking of goods and their delivery in the same condition, have, however, controverted all the allegations of the plaintiff and have contested the suit on a number of grounds.

4. On the pleadings of parties, following issues were framed:-

(1) Whether there was a short delivery of 11.030 M.T. sheets worth Rs. 21960.73 of steel black sheets by the defendants? If so, to what effect? OPP.

(2) Whether the notice Under Section 80 of CPC served by the plaintiff is invalid? OPD

(3) Whether the notice served by the plaintiff Under Section 78-B of the Railways Act is invalid? OPD

(4) Whether the plaintiff has got locus standi to institute the present suit? OPP

(5) Whether the present suit against the General Manager of the defendant is bad and not maintainable? OPD.

(6) Relief.

5. The trial court while examining the material issue regarding short delivery of sheets made specific reference to Rule 138 of the Goods Tariff No.34-Part I (Volume I) which is to the effect, "The Railway shall not responsible for any damage to, or loss of property unless notice of such is given in writing to the Station Master before delivery and removal from the Railways premises of the property or of the package or packages, the contents or parts of the contents of which are alleged by the claimant to be damaged or lost of the rest of the consignment, a portion of which is alleged by the claimant to be lost (as the case may be)" and so held that since no such notice was given by the plaintiff while taking delivery, the objection of short delivery is an after-thought and so much reliance cannot be made on the weighment made without associating any one from the defendants so as to burden the defendant, with the present liability. The trial court accordingly decided issue No.1 against the plaintiff. Under issue No.2, the court came to the conclusion that copy of notice Exhibit P-4 does not disclose the cause of action on the basis of which the present suit has been instituted. Accordingly, the court held the notice Exhibit P-4 to be invalid. This issue was also decided against the plaintiff. Issue No.3 was decided against the defendant. Under issue No.4, the court held that it is only the consigner who is competent to institute the suit for damages for short supply of goods. Since the present suit has been filed by the consignee, the same is not maintainable. Issue No.5 was found to be redundant. Resultantly, the suit of plaintiff was dismissed.

6. With a view to seek reversal of the judgment and decree of the trial court, counsel for the appellant argued that the, court below erred in placing implicit reliance upon Rule 138 of the Goods Tariff No.4-Part I (Volume-I) to deprive the plaintiff of its legitimate claim for damages on account of short supply of goods booked with the defendants.