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Judgment
Govardhan, J.—Plaintiff is the appellant. The averments in the plaint are briefly as follows:
The plaintiff booked from Bhilai Steel Plant. Bhilai, a consignment of 55.800 Metric tonnes of Pig Iron in Wagon No. ER 103784 in Railway
Receipt No. A. 463507. The consignment is to be delivered to the plaintiff at Baiyyappanahalli HSL siding at Bangalore. The consignment was
booked at Railway risk rate. As on 29.4.1975, the consignment has not reached Baiyyappanahalli. Therefore, a claim under S. 78-B of the Indian
Railways Act was made and served on the defendant. The consignment reached Baiyappanahalli on 20-5-1975 m Cr. Box 89198. The
consignment has been transhipped en route . The plaintiff therefore requested the defendant at Baiyyappanahalli to reweigh the material before
delivery. The materials were reweighed. It was found to weigh 38.520 Metric Tonnes of Pig Iron as against the booked quantity of 55.800 Metric
tonnes resulting in a shortage of 17.280 Metric tonnes. The value of the same is Rs. 12,960/- as per invoice No. 79 raised by the Bhilai Steel
Plant. The weighment has been checked and witnessed by the Railway Staff at the booking point. An endorsement also has been made to that
effect in the Railway Receipt. The original Railway Receipt has been surrendered to the defendant when delivery was taken. The defendant is
negligent in not having delivered the goods in tact and in full. The defendant is therefore liable to the plaintiff for a sum of Rs. 12,960/- being the
value of the shortage of goods. In spite of a claim under S. 78-B of the Indian Railways Act and several reminders sent to the defendant, the
defendants have only intimated that the matter is under enquiry. Therefore, a notice under S. 80 of CPC was also issued and served on the
defendant. Hence the suit.
The defendant in their written statement contends briefly as follows: The consignment was booked from Bhilai Steel Plant, Bhilai subject to the
condition ''Loading and unloading'' by owner. The consignor has loaded the consignment into the wagon with his own labour. Loading was not
supervised by the Railway Staff and the condition of the consignment was also not known to them. The consignment was transhipped en route
from wagon No. ER 193784 into wagon No. 89198 and carried to the destination and delivered to the party on 20th May 1975. The defendant is
not liable for the shortage since the consignment was loaded by the senders at their private siding and loading was not supervised by the Railway
Staff. The wagon has been sealed in the presence of the senders. The plaintiff is put to strict proof of actual loss suffered by producing his account
books. This suit is liable to be dismissed.
On the above pleadings, the trial Court has held that the quantity loaded in the wagon is not 55.800 Metric tonnes and there is no shortage and
as such the plaintiff is not entitled to a decree and dismissed the suit with costs.
Aggrieved over the same, the plaintiff has come forward with this appeal.
The point for consideration is: Whether the plaintiff has not established that there was shortage on account of the negligence on the part of the
defendant and whether the plaintiff is not entitled to a decree?
Point:-On 22-1-1975, the plaintiff has loaded at Bhilai a consignment of pig iron under Railway Receipt No. A 463507 invoice No. 79 to be
delivered to the plaintiff at Baiyyappanahalli siding at Bangalore is admitted. It is also admitted by the defendant that the consignment has reached
the destination in Wagon No. 89198 on 20-5-1975 and since the same is a different wagon, the plaintiff sought for re-weighment and when the
materials were reweighed, it was found to weigh only 38.520 Metric tonnes as against the booked quantity of 55.800 Metric tonnes. According to
the plaintiff, the shortage to the suit consignment was only on account of the negligence on the part of the defendant since the weighment was
checked and witnessed by the Railway Staff at the booking point and it has been endorsed in the original Railway Receipt itself. The Original
Railway Receipt under the original of Ex. B-1 has an endorsement as loading not supervised, weighment witnessed is not disputed by the
defendant. The plaintiff claims that since the weighment has been witnessed by the Railway staff, the Railway is liable for the short delivery. The
defendant contends that since the loading was not supervised by them, they are not liable for the value or the alleged short delivery of goods. In the
written statement, the Railway has not disputed the correctness of the weighment either at the place of loading or at the place of destination. It is
only during the course of the argument, the Learned Counsel appearing for the respondent would make a plea that the consignment is a wagon
load and the loading was also done by the consignor and therefore, it cannot be stated that the actual weight of the goods loaded was 55.800
Metric tonnes. But, this argument is not tenable since a specific endorsement has been made in the Railway Receipt under the original of Ex. B-1 to
the effect that the weighment has been witnessed by the Railway. When the Railway witnessed the weighment of the consignment, it is their duty to
see that the entire materials weighed is loaded in the wagon. It is more so, when the Railway contend that the loading was done by the consignor in
their private siding, it is not without any purpose that the officials of Railway has witnessed the weighment. If the Railway had witnessed the
weighment and then did not choose to witness the loading of the goods weighed, it is not open for them to contend that loading was not supervised
by them and therefore they are not liable, since the failure to supervise the loading is an act of negligence on the part of the Railway.
The Learned Counsel appearing for the respondent would also argue that it is only a ""said to contain Railway Receipt,"" and therefore, it cannot
be stated that the Railway has accepted the weighment mentioned in the Railway Receipt. This argument of the Learned Counsel appearing for the
respondent is not tenable since what is meant by ''said to contain'' can only be to the effect that the Railway was not aware of the nature of the
consignment and not the weight mentioned in the Railway Receipt. As far as the Railway Receipt is concerned, it has an entry which is unqualified
with regard to the weight of the consignment loaded into the wagon cannot be disputed at all. So also, at the time of the delivery also, what was the
weight of the consignment is not disputed and cannot be disputed by the Railway on account of the re-weighment certificate issued. The trial Court
has held that the Railway has not given any open delivery and therefore, it cannot be stated that the re-weighment certificate is evidence of short
delivery. This stand taken by the trial Court is erroneous since the question of giving open delivery would arise only in cases where the goods are
damaged. It is only to prevent the Railway from making a claim that the goods were delivered without any damage, open delivery certificate is
given to establish that the consignment was in a damaged condition at the time of delivery. In the present case, the case of the plaintiff is short
delivery and not any damage to the suit consignment. Therefore, it cannot be stated that on account of the fact that there was no open delivery
certificate, the plaintiff cannot make a claim.
The trial Court has also found fault with the plaintiff for not producing the Stock Register and examination of any person at the place of loading
and has come to the conclusion that the plaintiff has not loaded 55.800 Metric tonnes When the Railway Receipt has an endorsement to the effect
that the weighment has been witnessed by the Railway Staff, there is no necessity for producing any Stock Register or Loading Register by the
plaintiff. The trial Court has presumed that there is a Loading Register and Stock Register available at the plea of loading But, P.W. 1 has only
stated that there may be a Loading Register and a Stock Register at the place of loading viz. Bhilai. When the evidence of P.W. 1 has not shown
that these Registers were available there is no question of drawing any adverse in reference on account of the non-production of those documents.
The conclusion arrived at by the trial Court on account of the non-production of the Stock Register and Loading Register is therefore erroneous
and has to be set aside. In conclusion, I wish to emphasize that when once the Railway issues a Railway Receipt, in which there is an endorsement
to the effect that weighment has been witnessed by them, it is not open for the Railway to dispute the weighment mentioned in the Railway Receipt
on the ground of non-super vision of the loading and on the ground on non-production of the Loading Register by the consignor. Therefore,
considering all these aspects, I am of opinion that the plaintiff has established that there is a short delivery of 17.280 Metric tonnes of pig iron
whose value as per the invoice is Rs. 12,960/- and the defendant has to be made liable for the same. I therefore hold on the point accordingly. In
the result, the appeal is allowed setting aside the judgment and decree of the trial Court and the suit is decreed as prayed for with costs throughout.