The liability of a railway company for damages to goods in transit is not extinguished by the payment of compensation by an insurance company to the consignor, as the railway company remains primarily liable for the damages.

H. N. SETH, J. :- Being aggrieved by the judgement and decree dated 26th of Sept. 1967, passed by the Civil Judge, Deoria decreeing the suit filed by Deoria Sugar Mills Ltd., for recovery of a sum of Rs. 37,860.94 Paise, the Union of India has come up in appeal before us.

2. Briefly stated, the facts giving rise to the present appeal are that on or about 29th Feb., 1952 one Oriental Transport Service, acting for and on behalf of and as agent of the plaintiff, Deoria Sugar Mills Ltd., handed over a consignment of Sugar Mills Machinery consisting of vacuum creating Unit to the Central Railway at Victoria Dock for being carried at Railway Risk rate to Deoria Sadar, a station on the North Eastern Railway which is owned by Union of India. According to the plaintiff, the said consignment reached Deoria Sadar on or about 11th of July, 1952 in such a badly damaged and broken condition that the machinery had become totally useless. The plaintiff was thus deprived of the use of the said machinery and had suffered loss and damages amounting to Rs. 37,860.94 Paise (Rupees 30,005.81 actual costs of consignment, Rs. 7,424.69 P. towards the freight and clearing charges paid to Oriental Transport Service and Rs. 440.44 P. insurance charged). Thereafter the plaintiff laid a claim with the Union of India for the aforesaid amount at Calcutta within the original jurisdiction of Calcutta High Court. As the defendant did not pay the said amount, the plaintiff served a notice under S.80 of the Civil P.C. which was duly delivered to and accepted by the defendant at Calcutta within the original jurisdiction of Calcutta High Court. Eventually on 7th of May, 1953, the plaintiff filed Suit No. 1945 of 1953 for recovery of the aforesaid amount on the original side of Calcutta High Court. The Calcutta High Court by its judgement and decree dated 6th June, 1966 dismissed the suit on the ground that it has no jurisdiction to try it. The plaintiff then filed the present Suit No. 19 of 1966 on 25-7-1966 in the court of Civil Judge, Deoria and claimed that as he had been, between 7-5-1963 and 29-6-1966 prosecuting with due diligence. Suit No. 1945 of 1953 before Calcutta High Court which for defect or want of jurisdiction was unable to entertain it, it was, while computing period of limitation for filing the present suit, entitled to the benefit of S.14 of the Limitation Act and it should be taken that the present suit had been filed within the limitation prescribed therefor.

3. The defendant, Union of India contested the suit on the ground that the plaintiff had no cause of action against defendant. According to defendant, after the consignment reached the destination, a notice under Ss.55 and 56 of the Railways Act was sent to the plaintiff asking it to take delivery of the goods. The plaintiff, however, refused to take the delivery and the said consignment is still lying at the Railway premises at Deoria Sadar, North Eastern Railway at plaintiffs risk and responsibility. The North Eastern Railway was throughout ready and willing to deliver the goods on payment of railways dues and charges. The consignment lying at the destination was of considerable value and under the law the plaintiff should have removed the same and in case of damage it should have sued the defendant for the balance; that the suit was bad because the Central Railway on which consignment had been booked had not been made a party. Further the defendant had already realised the amount of damages if any from the Insurance Company. The cause of action for filing the present suit did not survive and that in any case, the plaintiff was not entitled to the benefit of Section 14 of the Indian Limitation Act and the present suit was barred by time.

4. The trial court, after discussing the evidence produced in the case, came to the conclusion that the consignment of machinery booked on behalf of the plaintiff at Victoria Dock, a station on the Central Railway reached Deoria Sadar, North Easter