The Tata Iron and Steel Company Ltd. vs The General Manager, Northern Railway and Others

N.K. Kapoor, J.—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.

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.

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.

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 u/s 80 of CPC served by the plaintiff is invalid? OPD

(3) Whether the notice served by the plaintiff u/s 78B 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.

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 Railway''s 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.

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. According to the counsel, as per practice, goods on receipt are weighed in the yard in the presence of representatives of Chamber of Commerce and in case any shortfall is found, claim based on the same is lodged with the authorities which inevitably is considered and granted. Here in the present case too, a verbal protest was lodged with the Station Master while taking delivery of goods and, in fact, delivery was taken under protest. On subsequent weighing the goods, necessary claim for damages on account of shortage of material booked was duly lodged with the authorities and before filing the suit even a notice u/s 80 of the CPC was served upon the defendants calling upon them to admit the claim of the plaintiff. According to the counsel, since weighment was made in the presence of the representatives of Chamber of Commerce, Chandigarh, the version set up by the plaintiff ought to have been accepted by the court. Reliance by the court on Rule 138 of the Goods Tariff is wholly misleading. Accordingly, judgment and decree of the court below deserves to be reversed.

Having heard learned counsel for a while and on reappraising the evidence, oral as well as documentary, adduced by the parties; I am of the view that the present appeal being devoid of merit deserves to be dismissed. Booking of steel black sheet at Tata Nagar South Eastern Railway Station for delivery at Jalandhar Cantt. Railway Station is not in dispute. The fact that the goods reached the Railway Station and the delivery was made by the Station Master to the plaintiff is also not under challenge. Herein after the parties differ. According to the plaintiff, goods were received under protest as the plaintiff found the bundles to be in a broken condition. This version has been contested by the defendants. The evidence adduced by the plaintiff does not prove its assertion that the bundles were in broken condition or that delivery was taken under protest. Precisely for this reason, the trial court declined to place any reliance upon, this earlier assertion of the plaintiff and rightly so. This being so, it can be inferred that no such protest was lodged by the plaintiff at the time of taking delivery. So any subsequent weighment of the goods even in the presence of any of the representatives of Chamber of Commerce cannot clothe the defendants with any liability especially when the defendants have not been associated with this weighment. In fact, reliance placed by the trial court on Rule 138 of the Goods Tariff clinches the issue. As per this rule, railway cannot be held responsible for any damage or loss of the property unless notice of such is given in writing to the Station Master before delivery and removal from the railway''s 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 etc. No such protest was lodged by the plaintiff before taking the delivery. This being the position, the trial court rightly found no merit in the plea of the plaintiff regarding his claim for awarding of damages. I find no ground to vary or reverse the well considered judgment of the trial court.

The appeal being devoid of merit is consequently dismissed. No order as to costs.