Bajranglal Agarwala vs Union of India (UOI)

Bose, J.—This is an appeal from a decision of G.K. Mitter, J., dismissing the Plaintiff''s suit for compensation for non-delivery of a certain consignment of goods entrusted to the railway for carriage. The Appellant''s case is that one Rajani Kanta Haldar who was the owner of a consignment of 88 bales weighing 308 maunds of raw jute booked the said consignment from Poradah station to Naihati station on the East Indian Railway covered by railway receipt No. 299256, dated October 30, 1948. The railway receipt was endorsed and transferred to the Plaintiff Appellant for valuable consideration by Rajani Kanta Haldar at Calcutta. The Defendant Railway Administration, however, failed and neglected to deliver the said consignment of jute covered by the said railway receipt and it is alleged that this non-delivery or loss of the goods is due to the negligence and/or default of the Railway Administration and/or their Servants and agents. The Appellant, therefore, claims damages for non-delivery which is assesses at Rs. 13,036-9 which is composed of two items - Rs. 12,936 being the price of the 308 maunds of jute and Rs. 100-9 being the freight paid in respect of the booked consignment. The case of the Respondent is that the consignment was booked subject to the terms and conditions of risk Note ''C which was executed in respect thereof and under this risk note ''C the consignor had elected to send the goods in open trucks and agreed and undertook to hold the Railway Administration harmless and free from all responsibilities for destruction or deterioration or damage to the said consignment which might arise by reason of the consignment being conveyed in open wagons. The case of the Respondent, further is that this consignment while being conveyed in such open truck was involved in an accidental fire along with two other open trucks. Thereafter offer was made to give delivery of the salvaged jute to the Appellant, but the Appellant wrongfully refused to take delivery thereof. The charge of negligence or default on the part of the railway is repudiated by the Respondent and they also deny their liability to pay any damages. At the hearing before the learned trial Judge the issues that were raised were as follows:

Is the Plaintiff entitled to sue?

Was there any default or negligence on the part of the railway administration as alleged by the Plaintiff?

3(a). Was the consignment booked subject to the terms and conditions in Risk Note ''C''?

(b). If so, can the Defendant be liable for any damages that might have arisen from the consignment being carried in an open wagon?

Was the Plaintiff''s refusal to take delivery of the goods wrongful?

What is the quantum of damage, if any, suffered by the Plaintiff?

Has this Court jurisdiction to try the suit?

Was a proper notice u/s 80 of the Code of Civil Procedure

To what relief is the Plaintiff entitled?

The answers given by the learned trial Judge to the issues were as follows:

The Plaintiff is not the proper person to bring this suit.

No evidence has been adduced in this case and it is not possible to come to any conclusion on this.

3(a). The answer is in the affirmative.

(b) On the evidence adduced I cannot hold that the railway company must be exempted from liability because of the execution of the risk Note ''C''. It is true that the goods were loaded in open trucks and that jute goods which are easily combustible would be lost through fire caused by sparks from engine. But there is no evidence that the fire was caused as a result of such sparks and therefore I cannot hold that the Defendants must be exempted from liability merely because risk Note ''C'' was executed.

Issues 4 and 6 were not pressed and therefore no answer is given. With regard to issue No. 5 the learned ''trial Judge stated "If I held in favour of the Plaintiff I would have awarded him damages to the extent of Rs. 13,036-9.

Issue No. 7: Mr. Mukherjee took the point that the cause of action as mentioned in the notice u/s 80 was that of an endorsee. He also took the point that the notice was addressed not to the General Manager but to the Dominion of India through the General Manager. I think that the latter point has no substance because it was served on the General Manager. As regards the former point, it is certainly not without substance.

In view of his findings with regard to issues 1 and 7 the learned Judge came to the conclusion that the suit must be dismissed.

The principal contention of the Appellant before us is that the finding of the learned Judge with regard to issue No. 1 is not correct and he should have held that as purchaser and owner of the goods at the time of the loss the Appellant was competent to maintain the suit. Learned Counsel for the Appellant in support of this argument has taken us through the oral evidence which was given by the Plaintiff in this case, as also the evidence of one Srikanta Saha, an employee of Rajani Kanta Haldar from whom the Appellant had purchased the goods. The learned trial Judge''s opinion with regard to the evidence of the Plaintiff has been that it is far from satisfactory and on the question of the alleged title of the Appellant to the goods in suit his view is that he has found it difficult to trace the title to the goods in the Plaintiff from the chain of events and facts that have been established before him by evidence.

The most important piece of evidence upon which reliance is placed on behalf of the Appellant on the question of the Appellant''s title to the goods is a receipt which is marked as Ext. B. This receipt is dated Calcutta, October 3, 1948 and reads as follows:

Rajani Kanto Haldar, Jute Merchant and Commission Agent. Received from Bajranglal Agarwalla at 122, Harrison Road, Calcutta, price of 88 bales jute 308 maunds at Rs. 42 per maund with Pakistan Export duty under under railway receipt No. 299256 of 30-10-48 Ex. Poradah to Naihati for Hukumchand Jute Mills amounting to Rs. 12,936 and railway freight paid Rs. 100-9 total Rs. 13,036-9. Money received in cash at 12, Harrison Road, Calcutta, on 31-10-48.

Sd. Rajani Kanta Haider,

31-10-48.

A good deal of cross-examination was directed with regard to this receipt to establish that the receipt is not a genuine document, and it has been brought into existence to support the case of the Appellant as laid in the plaint. Although it is stated in the receipt that this entire sum of Rs. 13,4 *-9 was pain in cash, there is no corroborative evidence produced to show that in fact such a large sum of money passed in cash from the hands of the Appellant to Rajani Kanta Haldar who was the consignor and the original owner of the jute bales in question. The Appellant was specifically asked whether he maintained any books of account from which it would appear that any such sum was in fact paid by him to Rajani Kanta Haldar on account of the price of these jute bales. His answer is that as the volume of business done by him every year is very small, he does not take the trouble of maintaining any books of account. He has, however, suggested in course of his evidence given before this Court that the brokers who were engaged by him in connection with the transaction being a firm of the name of Sewnarain Kesordeo maintained books of account in relation to their business. But no attempt was made to get these books produced before the court in support of the case of the Appellant that he had purchased these goods and had sold these identical goods to Hukumchand Jute Mills through these brokers. As I have pointed out already, the Appellant took steps to procure the attendance of Srikanta Saha, an employee of Rajani Kanta Haldar, for the purpose of giving evidence in support of his case. This Srikanta Saha came into the witness box only to prove that the receipt (Ext. B) had been executed by Rajani Kanta Haider at Calcutta and the entire sum of Rs. 13,000 and odd was paid in cash in his presence and both Rajani Kanta Haldar and the witness had counted the money with their own hands. Curiously enough, however, no books of account of Rajani Kanta Haldar have been produced before the court to corroborate the evidence that as a matter of fact a sum of Rs. 13,000 and odd had been received by Rajani Kanta Haldar on account of the price of the consignment and it had been credited in his books of account. There can be no question that if the books of account of Rajani Kanta Haldar or the books of the broker, Sew Narayan Keshardeo had been produced and such books contained entries with regard to these payments or the goods then such fact would have gone considerably in the way of establishing the truth of the case of the Appellant that he is the owner of ''the jute goods in suit. It is also to be noted that this receipt Ext. B was not disclosed in the affidavit of documents which had been filed on behalf of the Appellant nor was it disclosed at any subsequent stage before the hearing of the case started but it was disclosed and produced for the first time at the hearing of the suit when the fact of the ownership of the Appellant with regard to the goods in question was directed by the learned Judge to be established before him by evidence. It is further to be noticed that no man from the firm of Brokers Sew Narayan Keshardeo or Hukumchand Jute Mills who were alleged to have purchased the goods from the Appellant was called as a witness to support the case of the Appellant. The railway receipt which has been tendered in evidence and marked Ext. A shows that a rubber stamp of Hukumchand Jute Mills Ltd. was put on this railway receipt and a signature appears under this rubber stamp and the words "Managing "Agents" also appear in rubber stamp. But there is no evidence to show as to when or how this rubber stamp came to be put on this document. The Appellant''s case is that this rubber stamp was put with the object of endorsing the railway receipt in his favour but it is significant to note that the endorsement is not purported to be made in favour of the Plaintiff Appellant. If it can be regarded as an endorsement at all, it is an endorsement in blank. The railway receipt also bears the rubber stamp of Bajranglal Agarwalla and prefixed to that the letters "a/c" appear. There is also no evidence as to how and when and why this rubber stamp came to be put on this document. It will thus appear that the learned Judge''s comment that the title of the Appellant to the goods has not been clearly and satisfactorily established by evidence on record is amply justified. The Learned Counsel for the Appellant laid a good deal of stress on the fact that in the correspondence that passed between the Appellant and the railway administration with regard to the claim that had been put forward by the Appellant in respect of the goods in suit shows that the railway administration had accepted and treated the Appellant being the owner of the goods and they have admitted the Appellant''s title to the goods and, therefore, it was not open to them to turn round and take up the attitude at the trial that the Appellant was not the owner of the goods and had, therefore, no right to maintain the suit. But the simple answer to this contention of the Appellant is that since the Appellant had advanced a claim for compensation, in respect of the goods which had been burnt by fire, the railway administration had to deal with this question which had been raised and they had to give whatever answer they wanted \\to give to the Plaintiff''s letters and they had also to make such offers as they thought were reasonable to make in the facts and circumstances of the case. But we find it difficult to hold that the replies given to the letters of the Appellant by the railway can be construed as amounting to an admission of title of the goods. Since no other person had come forward to make any claim, the railway administration naturally dealt with the Appellant as the person who was entitled to the goods. The Learned Counsel for the Appellant also relied strongly on the letter which was written on November 5, 1948 on behalf of Rajani Kanta Haldar to the officer-in-charge, G.R.P., E. I. Railway, Ranaghat, to show that from the very beginning it was the Appellant who was assenting his title to the goods in suit. He had drawn the attention of the court to the fact that the letter was signed on behalf of Rajani Kanta Haider by the Appellant''s sister''s son and the address of the sender of the letter was given as "c/o Bairanglal Agarwalla, 122 Harrison Road, "Calcutta". But a reference to the body of the letter itself shows that "the letter states categorically the fact that the consignment of jute in question belonged to Rajani Kanta Haider. The expression which finds place in the letter is "my above consignment". Moreover, the mere fact that the letter was signed on behalf of Rajani Kanta Haider by the Appellant''s sister''s son and the address was given as c/o Bajranglal Agarwalla. cannot in any way be regarded as conclusive of the Plaintiff Appellant''s title to the goods. There can be no doubt that if the Appellant was really the owner of the goods and had purchased the goods on October 31, 1948, as alleged by him and that he had paid the very large sum of Rs. 13,000 and odd as consideration for this purchase, it was quite easy for him to produce more satisfactory evidence before this Court in support of his title to the goods in question. But as in our view the Appellant has not satisfactorily established his case, we feel constrained to hold that he has failed to establish his title to maintain the suit for compensation for non-delivery of the goods. Our decision on this point is sufficient to dispose of the appeal but as the question with regard to the sufficiency of the notice u/s 80 of the CPC has been raised before us and has been argued on both sides, we think it desirable that we should record our views on the question raised.

The learned advocate for the Appellant has contended that the finding of the learned Judge on this issue is not quite correct. I have quoted in an earlier part of this judgment, the finding of the learned Judge on this issue. It appears that the learned Judge was under the impression that the case as made in the notice u/s 80 of the CPC was not the same as that made in the plaint. But it appears to us upon a scrutiny of the statements in the notice and the allegations in the plaint that there is no real variance between the pleading and the notice. The facts stated in the notice are substantially the same as stated in the plaint. In the notice dated February 9, 1949, the following paragraph appears as para. 2 under the heading "Cause of Action":

That my client is the holder of the aforesaid R/R in due course for valuable consideration by virtue of the endorsement at Calcutta.

In para. 2 of the plaint, we find the following allegation:

The said railway receipt was endorsed and transferred to the Plaintiff for valuable consideration by the said Rajani Kanta Haider at Calcutta within the said jurisdiction.

It will thus appear that both in the notice u/s 80 as also in para. 2 of the plaint, the case sought to be set up is that the Plaintiff Appellant had paid valuable consideration for the railway receipt and in exchange for that he had got a transfer of the railway receipt in his favour and there was also an endorsement on such railway receipt which was made in Calcutta. Although the wordings of the notice and the statement made in para. 2 of the plaint are not absolutely identical, the substance of the case as set up in the notice and the plaint appears to us to the same. We, therefore, hold that the learned Judge was in error in finding that there was variance between the notice and the pleading in this case.

Mr. Mukherji, Learned Counsel for the Respondent, also contended that the finding of the learned Judge with regard to issue No. 3(b) is not correct and the learned Judge should have held that by reason of the execution of the risk Note ''C'', the railway administration was exempted from the liability in respect of the claim of the Appellant. The argument that is put forward in support of this contention is that the very terms in which the risk Note ''C'' is worded affords the railway administration protection from the claim for compensation as has been put forward by the Appellant. It appears to us that answer to this argument is furnished by the observations of the Court of Appeal in the case of Rallia Ram Dingra v. The Governor General of India-in-Council (1944) 48 C.W.N. 55. Gentle, J. made the following observations with regard to this point at issue at p. 559:

In my view, this risk note does exempt the Railway from loss caused by its servants'' negligence or misconduct but to a limited extent, namely, to loss which may arise by reason of the consignment being carried in the open wagon. It doss not exempt them from all responsibility. I will explain this by an example. A train composed of open trucks and covered wagons collides through the negligence of a servant of the Railway and the whole freight in the train is damaged. In respect of the open trucks, the Railway is covered by risk note ''C'' which in that case would not save the Railway from liability inasmuch as it mattered not whether the goods were in an open truck or were in a covered truck; the cause of the damage being negligence which is quite distinct from damage being occasioned by the goods being packed in open vehicles in which they were carried and being in no way connected with it; in such case the Railway would be liable" The exemption must relate to damage which arises from the goods being carried in an open truck.

To take another instance-if a fire originates due to hot axle in the open wagons and the goods in the open wagons are burnt as a result of such fire could it be said that the loss or damage arose by reason of the goods being carried in the open wagons? The answer must be in the negative. The fire caused by hot axle can burn or damage goods whether they are being carried in open wagons or in covered wagons. The reason for the. damage or loss is the defective axle and not the openness of the wagons. Therefore, it appears that the risk note ''C'' only affords a limited protection, not a protection which is available to the railway in all cases and under all circumstances, and unless it is established that the railway administration is entitled to avail themselves of the protection of the particular or special terms of the risk note, we do not think that the railway can claim any exemption in respect of their liability for loss or damage to the goods. This disposes of all the points raised in this appeal. But in view of our finding that the Appellant has not been able to establish his title to the goods and his right to maintain the suit, this appeal must fail and it is accordingly dismissed with costs of this Court and ''the Court below. Certified for two counsel.

P.B. Mukharji, J.

I agree.