Union of India (UOI) and Another vs Shree Emporium and Another

V. Kanagaraj, J.—This appeal suit is directed against the judgment and decree dated 30-4-1985 rendered in O.S. No. 386 of 1981 by the

Court of Principal Judge, City Civil Court, Madras thereby decreeing the suit filed by the respondents herein for recovery of a sum of Rs. 44,300/-

together with interest thereon at 9% per annum from the date of suit and for costs, as prayed for.

The plaint averments are that the first plaintiff sent a consignment of seven cases of textile goods, valued at Rs. 44,330/- inclusive of packing and

forwarding charged to M/s. Mahaveer Das and Brothers, Sahara Bazaar, Calcutta, as evidenced by bill dated 30-8-1977; that the consignment

was insured with the second plaintiff as per the Insurance policy dated 31-8-1977 and the same was entrusted to the first defendant Southern

Railway on 31-8-1977 for safe carriage by passenger train and delivery at Sahara Bazaar Railway Station of South Eastern Railways; that the

parcel Way Bills have been sent through the Syndicate Bank, Madras for clearance, booking the consignment as ""self at the railway risk rate; that

since the documents were not retired by the consignee, the first plaintiffs Special representative visited Sahara Bazaar and learnt that the

consignment was not available at the destination and therefore, the first plaintiff issued notice u/s 78-B of the Indian Railways Act dated 10-10-

1977 to the defendants; that the second plaintiff made good the loss sustained by the first plaintiff and got a letter of subrogation dated 16-2-1978

from the first plaintiff with a special power of attorney; that after issuing notice u/s 80, CPC to the defendants on 8-7-1980, the plaintiffs have

come forward to file the suit for the recovery of the said sum being the loss occasioned on account of the non-delivery of the consignment.

In the written statement filed by the first defendant which had been adopted by the second defendant, they allege that the consignment reached

its destination on 3-9-1977, and on the basis of the parcel way bill, in good gaith, they delivered the goods to Sri Bijoy Dose for Mahaveer Doss

and as such the defendants are not responsible that the first plaintiff has not paid percentage charges for textile goods, which falls under the group

of excepted article, and as such, the defendants are not responsible for any loss. The defendants would also dispute the quantum of loss suffered

by the plaintiffs and the issuance of notices u/s 78-B and 140 of Indian Railways Act.

On the above pleadings, the trial Court would frame six issues which are :

Did the defendant deliver the suit consignment against the document of title, viz., Railway Receipt to the owner of the consignment?

Is the defendant absolved from liability u/s 78-B of the Indian Railways Act?

What is the value of the suit consignment non-relivered?

Was there compliance of provisions of Section 78-B of the Indian Railways Act?

Was there valid suit notice u/s 80, CPC duly served on the defendant?

To what relief is the plaintiff entitled?

Having framed the above issues, the lower Court would conduct a trial in which three witnesses have been examined on the part of the plaintiffs

as P.Ws. 1 to 3 and the defendants would examine two witnesses for oral evidence as D.Ws. 1 and 2. So far as the documentary evidence is

concerned, 41 documents would be marked as Ex. A1 to Ex. A. 41 on the side of the pliantiffs and 11 documents would be marked on the part of

the defendants as Ex. B1 to Ex. B11. The Court below, in appreciation of these evidence placed on record in the context of the pleadings, would

ultimately decree the suit as prayed for with costs. It is only challenging the decree as passed by the lower Court, the defendants have come

forward to prefer the above appeal suit on certain grounds as brought forth in the grounds of appeal.

During arguments, the learned counsel appearing on behalf of the appellants/ Railways would submit that textile goods were sent in seven cases

from Madras Central to Sahara Bazaar and there was no possibility of the Sahara Bazaar railway station to know as to who is the consignee and

that they delivered the goods in good condition to the intended consignee; that the case of the plaintiff is one of non-delivery; that there cannot be a

suit for wrong delivery, that is the consignment had been delivered, but to a wrong person; that Ex. A. 2 refers to Mahavir Doss and Brothers; that

regarding whether it was delivered to right person or wrong person, no case could be registered; that Ex. B. 3 bears rubber stamp of the booking

station, whereas the same is not there in Ex. A. 3; that the freight charges are very important more than the items of goods; that Ex. A. 3 freight

charges shows an amount which is not correlating with Ex. B. 3; that the delivery had been done in good faith and there was no possibility for the

railways to know as to who the consignee was.

The learned counsel for the appellants would further argue that u/s 77-B of the Railways Act, provisions have been made ""with respect to the

responsibility of Railway Administration as a carrier of articles of special value"" that if the value of the articles exceeds Rs. 500/-, the Railway

administration shall not be responsible for the loss, destruction or damage or deterioration, unless the person sending or delivering parcel or

package to the administration caused its value and contents to be declared in writing at the time of the delivery and a percentage is paid on the

value so declared by way of compensation for the increased risk and in such event if the parcel or package is lost, or destroyed or damaged or

deteriorated the compensation recoverable shall not exceed the value so declared. At this juncture, the learned counsel would cite a judgment

rendered by the Apex Court in Union of India (UOI) Vs. West Punjab Factories Ltd., : wherein it is held that ""the mere fact that the consignee is

different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to

goods has passed to the consignee has to be decided on other evidence, ordinarily, it is the consignor who can sue if there is damage to the

consignment, because the contract of carriage is between the consignor and the railway administration. Where, however, the property in the goods

carried has passed from the consignor to consignee, the latter may be able to sue. Whether title to goods has passed from the consignor to the

consignee depends on the facts of each case.

The learned counsel would cite yet another Judgment cited from M. S. Pugalagiri Nadar and Sons v. Union of India reported in M.S. Pugalagiri

Nadar and Sons Vs. The Union of India (UOI), , wherein it is held that ""when damage to the goods had occured, it is incumbent on the person

claiming conpensation to establish by evidence that he had been put to actual loss by reason of damage"".

Continuing to argue, the learned counsel would point out that the original of the registration copy of the firm must be placed before the Court

and not the xerox copy of it; that in the case in hand, the plaintiffs have first produced the xerox copy of the registration and later the original; that

u/s 69(2) of the Partnership Act, if the plaintiff has to prove that it is a registered firm, he has to file two documents. At the time of filing the suit he

would file the extract of the Register of Firms and would cite a judgment rendered by the Nagpur Bench of the Bombay High Court in Kapurchand

Bhagaji Firm v. Laxman Trimbak reported in AIR 1952 Nagpur 57 wherein it is held that ""unless the firm is registered and the persons suing are or

have been shown in the Register of Firms as partners of the firm, no suit to enforce a right arising from a contract shall be instituted in any Court by

or on behalf of a firm against any third party"". Citing the above judgment, the learned counsel would exhort that, if a suit is filed by a partnership

firm, one of the partners should sign on behalf of the firm and to prove that he is a partner, he must get the extract from the Register of Firms to the

effect that he has not ceased to be a partner in the due course or retired.

Regarding the actual loss, the learned counsel would point out that it has been admitted by the plaintiff that there was an advance from the

consignee under the invoice in Ex. A-2. At this juncture, the learned counsel would cite a judgment of this Court rendered in Union of India v.

Tiruchi Metal Works, reported in (1989) 104 MLW 214 wherein it is held: ''mere circumstance of the Railway Administration admitting that

damage had been occasioned will not entitle consignee to obtain a decree for compensation without proof of actual loss.'' The mere fact that the

consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether

title to goods has passed to the consignee has to be decided on other evidence.

Citing the above judgment, the learned counsel would point out that it is not a case of non-delivery and that the Railways are not admitting the

non-delivery at all and it is a delivery in good faith made, and would pray to set aside the judgment and decree passed by the lower Court.

On the part of the learned counsel appearing on behalf of the respondents, he would argue that in the case in hand, the consignor continues to

retain title; that it is Section 73 of the Railways Act, which is relevant in respect of goods carried by Railways; that the other relevant Sections are

Section 78-B of the Railways Act whereunder notice has to be given in six months and u/s 80, C.P.C. also notice is to be Issued within three

months. Citing from the deposition of P.W. 1, the learned counsel would cite two judgments, the first one reported in Firm of Chabildas Manikdas

and Brothers, Hyderabad Vs. The Union of India, : and the second one reported in Punjab National Bank Vs. Beniprasad Maheshwari and

Others, :

So far as the first judgment cited above is concerned, it is held therein that ""under Section 73 as amended in 1961, the liability of the Railway

Administration is the same as that of the common carrier of goods"". In the other judgment cited above, it is held that: ""Except in cases where any

cause out of the causes enumerated in Clauses (a) to (1) of Section 73 is present, the responsibility of the railway as carrier is absolute."" On such

arguments, the learned counsel would conclude saying that the lower Court has properly dealt with the subject and there is absolutely no necessity

on the part of this Court to interfere with the judgment delivered by the lower Court and would ultimately pray to dismiss the appeal.

In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both,

what comes to be known is that it is a case filed by the respondents herein against the Union of India owning the Southern Railways and South

Eastern Railway Administration for the recovery of a sum of Rs. 44,300/- together with interest and costs on account of non-delivery of the textile

goods sent to the said value from Madras Central to Sahara Bazaar, Calcutta, by the first plaintiff duly insured with the second plaintiff Insurance

Company. On the part of the Railways, they would admit that the consignment reached the destination on 3-9-1977 but the same had been

delivered on 9-9-1977 on the basis of Ex. B-3, parcel way bill to Sri Bijoy Dose for Mahavir Doss and as such they are not responsible for any

compensation. However, the plaintiff would plead that the goods have not been delivered at the destination in spite of the endorsement of the

consignment with Southern Railways is an admitted fact under the Ex. A-3 parcel way bill dated 31-8-1977. It is the case of the plaintiffs that in

these circumstances, since the entire goods sent have not been properly delivered issuing proper notices and realising the value from the second

respondent with whom the goods were insured on grant of Letter of Subrogation in favour of the second plaintiff, they both have come forward to

file the suit claiming the said value of the goods with interest and costs.

In these circumstances, the point that arises for determination in the above appeal suit is, whether the lower Court is right in decreeing the suit

as prayed for with costs and wheher it requires interference by this Court as sought for in the appeal?

A careful perusal of the judgment rendered by the lower Court would show that the trial Court has not only traced the pleadings by parties in

support of their respective cases, but also framing proper issues as extracted in para 4 supra on questions of facts and law, has conducted a

thorough trial wherein on the part of the plaintiffs, three witnesses have been examined for oral evidence and on the part of the defendants, they

have also examined two witnesses and 41 documents have been marked on the part of the plaintiffs and on the part of the defendants, they have

also marked 11 documents of which the crucial document is Ex, A-3, the parcel way bill receipt (Railway Receipt) dated 31-8-1977 and Ex. B-3

dated 31-8-1977. Ex. A-3 is the bill given to the plaintiffs for the goods consigned and Ex. B-3 is the bill retained by the defendants. Some minor

discrepancies would be pointed out in these two, documents by the learned counsel for the appellant. But, they do not seem to be the deciding

factors of the suit. Even those other legalities argued on the part of the appellants cannot in any manner go to establish that the appellants have

delivered the goods in favour of the consignees of the plaintiffs at the destination point. In short, it is not the case of the defendants that they

delivered the goods to the right person as it is required under law and as per the agreement in between the Railways and the respondents, but

simply they come forward to say that the consignment reached its destination on 3-9-1977 and it was delivered on 9-9-1977 on the basis of Ex.

B-3, parcel way bill in good faith to one Sri Bijoy Dose for Mahavir Doss and as such they are not responsible. This is not the manner in which the

Railways owned by the Central Government should have acted. The appellants should come forward to prove to the effect that they delivered

goods to the right person at the destination. It is almost an admitted case on the part of the appellants that the goods were not delivered to the right

person. Mere delivery said to have been effected in favour of somebody who came forward to claim the goods without having the right to claim the

same or without proper authenticity is not sufficient to hold that the appellants have acted bona fide and in good faith as it is pleaded on their part.

On the contrary, a strong plea has been put up on the part of the plaintiff to the effect that the goods were not delivered to the right person claiming

the same with such authenticity of record and therefore, since undelivered good have been insured with the second plaintiff Insurance Company,

recovering the money and issuing the Letter of Subrogation, they both have rightly come forward to claim the loss that has been occasioned to the

extent of Rs. 44,300/- with interest and costs.

The lower Court having gone into the oral and documentary evidence, dealing the same issue by issue and certain issues jointly, would

ultimately arrive at the conclusion to hold that the oral and documentary evidence let in on both sides show that the defendants were negligent in

delivering goods to a wrong person on the basis of Ex. B-3, a Bogus Railway Receipt and would decree the suit as prayed for with costs. The

Court below has taken much strain to assess the authenticity of Ex. B-3 in paragraphs 10 to 12 and having a clear discussion in the context of not

only the other important document Ex. A-3, but also the oral evidence made available and assessing the circumstances would ultimately arrive at

the decision as aforementioned to disbelieve Ex. B-3 and brand the same as bogus document thereby arriving at the conclusion that the goods have

been delivered to a wrong person. The appellants have failed to show as to how those decisions arrived at by the lower Court branding Ex. B-3 a

Bogus document are perverse so as to show the genuineness proved on the part of the appellants on evidence and in true meaning of the

connected provisions of law.

The learned counsel appearing on behalf of the appellant has taken much strain to cite many Judgments that he has cited which have been

extracted supra pertaining to the legal position which have been well clarified in those Judgments. But the Judgments and the clarifications rendered

to the legal provisions in other cases to suit the facts of their case are not going to prove the facts pertaining to the case in hand and therefore, when

on facts, the case is dissected, it comes to be proved that the goods have been delivered negligently by the appellants in favour of wrong persons

based on Ex. B-3, bogus Railway receipt, none of the judgment cited by the learned counsel for the appellants is going to come to the rescue of

the appellant since they are not applicable to the facts of the present case since it is a confirmed case of the plaintiffs that the goods entrusted have

not been supplied at the destination as it is the agreement in between the parties besides other understanding.

The lower Court has also gone into the other aspects such as the value of the consignments, the provisions of Section 78-B of the Indian

Railways Act, and the validity of Section 80, C.P.C. notice served on the defendants and would remark that these issues have been framed

without any reference to the documentary evidence available on record; that under Ex. A-2, invoice, the goods have been insured and the second

plaintiff paid the value of the goods and it got subrogated to the rights of the plaintiff under Ex. A-8 on the Letter of Subrogation and therefore,

would find that the value of the goods consigned has been correctly stated in the plaint. For Section 78-B of the Indian Railways Act, pertaining to

issue No. 4, the lower Court citing Ex. A-6 acknowledgment would find the provisions of 78-B of the Indian Railways Act, have been complied

with. Likewise, for Section 80, C.P.C. notice also as it forms issue No. 5, citing Ex. A-12 and Ex. A-13, postal acknowledgments, the lower

Court would find that valid notices u/s 80, C.P.C. have been served on the defendants.

For the main issue number one, whether the defendant delivered the consignment against the document of title, namely, Railway receipts to the

owner of the consignment, the lower Court would take much strain to assess the truth and on a clear decision held from para 10, would ultimately

find that the defendants failed to take proper care and caution before delivering the consignment based on Ex. B-3 and therefore, they have

delivered the goods to a wrong person on a bogus receipt and would answer this issue also in favour of the plaintiff and would ultimately decree

the suit as prayed for.

In all respects, the Judgment of the lower Court is a consistent judgment taking care of all the aspects involved in this case, both facts and law,

wherein right and valid conclusions have been arrived at by the trial Court requiring no interference by this appellate forum as it is argued on the

part of the learned counsel appearing for the appellants. No infirmity or inconsistency is seen anywhere throughout the judgment and the manner in

which the conclusions have been arrived at by the Court below and there is absolutely no necessity for this Court to make any interference into the

well considered and well merited judgment rendered by the lower Court.

In result, (i) the above appeal suit is without merit and the same is dismissed.

(ii) The judgment and decree dated 30-4-1985 rendered in by the Court of Principal Judge, City Civil Court, Madras, is confirmed.

(iii) In the circumstance of the case, there shall be no order as to costs.