1.By means of filing this appeal under section 96 of the Code of Civil Procedure, 1908, the appellants, who are original defendants, have questioned the legality and validity of judgement and decree dated March 28, 1978 rendered by the learned Civil Judge (S.D.) - Jamnagar in Special Civil Suit No.69 of 1974.
2.The respondent is a registered partnership firm and carries on business at Jamnagar. It had purchased four bundles of G.P.Sheets from Hindustan Steel Ltd, Rourkela (Orissa) and the same were dispatched to the respondent firm from Bundamunda to Jamnagar under invoice No.07635 dated 24/07/1973 for Rs 60,182.17 ps through the appellants under R.R. No.A-186868, invoice No. C-04 dated 19/07/1973 and wagon No.CRCV 29172. The consignment arrived at Jamnagar on October 10, 1973, but while taking delivery of the goods, it was found by the respondent that the goods were in loose condition and badly damaged. Therefore, the respondent declined to take delivery of the goods unless the damages were paid. However, with a view to arriving at an amicable settlement with the appellants, the respondent firm agreed to take delivery of consignment after proper assessment damages and weighment. Accordingly, railway administration, in presence of independent panchas, officers of the appellants and respondent, assessed the damages on November 09, 1973. As per the assessment report, damages were calculated at 20%, which according to the plaintiff came to Rs.12,061.43ps. The case of the respondent was that the respondent firm had suffered loss of Rs 12,061.43 ps because of willful default, negligence and misconduct on part of the railway administration. The respondent therefore served the notice upon the defendants on February 13, 1974 under section 78(B) of the Indian Railways Act and under section 80 of the Code of Civil Procedure, calling upon them to make good the loss. The appellants failed to comply with the notice and therefore, plaintiff instituted Special Civil Suit No.69 of 1974 in the Court of learned Civil Judge (S.D.) Jamnagar and claimed decree for the amount of Rs 12,061.43 ps with running interest at the rate of 1% per month and costs.
3.The appellants contested the suit by filing the written statement at exh.11 and denied the averments made in the plaint. The appellants averred that the respondent was not the owner of the suit goods and therefore, suit was not maintainable. It was stated in the Written Statement that the suit consignment was loaded by the consignor in its siding and as the loading was not supervised, the respondent was not entitled to the decree claimed in the plaint. It was pleaded that the wagon dispatched from Bundamunda had arrived at Kankaria, but it was impossible to tranship them from B.G.wagon to M.G. wagon by means of crane and therefore, the goods were transshipped by manual labour at Sabarmati after getting bundles unpacked, but due care and caution was taken and no damage to the goods had taken place either in transit or during transshipment and therefore, the suit was liable to be dismissed. It was asserted that the suit consignment had arrived at the destination directly without being interrupted enroute and the goods were neither found to have been damaged nor any water was found in the M.G. wagon, as a result of which, the respondent was not entitled to claim damages. The appellants pleaded that though the respondent claimed that packing requirements were complied with, in fact, they were not complied with by the consignor, as a result of which, suit against the appellants was not maintainable. In the alternative, it was contended that the alleged damage to the goods was caused due to inherent vice and bad quality of goods, for which the appellants should not be held liable. Lastly, it was averred that appellants did not prove the actual damage claimed in the suit and therefore, the suit was liable to be dismissed.
3.The learned Judge framed seven issues for determination at exh.14. The respondent, in order to prove its case, examined the following witnesses :
(1)Lalit Mohan Shashi Mohan, who was at the relevant time serving with Hindustan Steel Ltd, at exh.29.
(2) Narendrakumar Harjivandas, partner of the respondent firm, at exh.32.
The appellants also examined the following witnesses in order to prove their case :
(1) Chandramohan Jagmohanlal Bhattnagar, who was serving as Chemist and Metallurgist, Western Railway, at exh.45.
(2) Niharendu Charuchandra, who was discharging his duties at Rourkela Railway Station, at exh.50.
(3) Harendrasingh Tilaksingh, Divisional Personnel Officer, Western Railway, at exh.51.
(4) Gulam Mustafa Dastgir Shaikh, who was working as Transshipment Clerk, at Sabarmati, at exh.53.
(5) Devendrasinh Ratansinh, who was working at Jamnagar Railway Station, at exh.58.
(6) Babulal Gurudayalsinh Soni, who was working as Goods Clerk, at Jamnagar, at exh.60.
(7) Vijaykumar Radha Raman Bhargav, who was the associate member of the Institution of Mechanical Engineers, London, at exh.62.
Relevant documents were also produced by the parties in support of their respective claims. After taking into consideration the documentary and oral evidence, the learned Judge held that the respondent firm, which is a duly registered partnership firm, had purchased four bundles of G.P.Sheets from Hindustan Steels Ltd, Rourkela and at the time of delivery of the consignment, the sheets were found badly damaged and in a rusted condition, but the delivery was taken on assessment of damages and weighment. The learned Judge concluded that the respondent was the owner of the consignment and entitled to file the suit. It was also held that though four bundles of sheets were not checked by the appellants at the time of loading, the consignor had complied with all packing requirements at the time of loading. The learned Judge concluded that damage found to the suit goods was not because of the inherent vice and bad quality of the goods, but because of negligence on part of the appellants and the respondent was therefore entitled to the decree claimed.
4.In view of the above referred to conclusions, the learned Judge allowed the suit and passed decree in favour of the respondent firm for an amount of Rs.12,036.43ps together with the costs of the suit as well as future interest thereon at the rate of 6% per annum from the date of suit till realisation from the properties of the appellants - railway administration, giving rise to the present appeal.
5.Mr R.M. Vin, learned counsel for the appellants has taken me through the entire evidence on record. It was submitted that the respondent has failed to prove that it was the owner of the consignment in question and therefore, decree should not have been passed in its favour. It was argued that the consignor i.e. Hindustan Steels Ltd., Rourkela had not complied with packing requirements at the time of loading and therefore, the appellants should not have been held liable. What was emphasized on behalf of the appellants was that there was no negligence on part of the appellants while dispatching the goods from Bundamunda to Jamnagar and therefore, the appeal deserved to be accepted. It was stressed that the goods were damaged because of the inherent vice and bad quality of goods and therefore, the decree passed against the appellants deserve to be set aside and quashed. It was submitted that the respondent failed to prove actual loss suffered by it and therefore, the appeal should be allowed.
6.Mr B.R.Shah, learned Sr. Advocate appearing for the respondent submitted that the evidence of Narendrakumar Harjivandas, at exh.32, shows that the respondent was the owner of the consignment in question and therefore, the respondent was entitled to file the suit. It was stressed that from the testimony of Harendrasinh Tilaksinh at exh.51, it is abundantly clear that if packing conditions are not complied with, it is mandatory to make a note to that effect in the forwarding note and as the forwarding note is not produced by the appellants, an adverse inference should be drawn against the appellants and it should be held that the packing requirements were complied with by the consignor at the time of loading consignment. It was pleaded that even otherwise the evidence of Lalit Mohan Shashi Mohan, who was serving in Hindustan Steels Ltd proves that the packing requirements were complied with by the respondent at the time of loading the consignment. It was asserted on behalf of the respondent that the respondent firm suffered loss only due to the negligence on part of the appellants and therefore, the learned Judge was justified in passing the impugned decree against the appellants. It was emphasized that loss mentioned in the plaint is proved by the respondent and having regard to the facts of the case, appeal should be dismissed in absence of good ground.
7.The fact that the respondent firm is a registered firm under the provisions of Indian Partnership Act is not in dispute. This fact is proved by the respondent through the evidence of its partner Narendrakumar Harjivandas, who has produced true copy of the relevant extracts and entry from the Registrar of Firms indicating registration of firm under the provisions of Indian Partnership Act. The certificate issued by the competent authority is a true copy given under the seal and signature of the Registrar of the Firms, which is not challenged in cross-examination of witness Narendrakumar Harjivandas. Having regard to the facts of the case, I am of the view that the learned Judge has rightly held that the respondent has proved that it is registered under the provisions of Indian Partnership Act and the suit is maintainable by it.
8.In order to prove the fact that packing requirements were duly complied with at the time of loading, the respondent has led evidence of Lalit Mohan Shashi Mohan , who was at the relevant time, serving in Hindustan Steel Ltd. vide exh.29. The witness has testified before the Court that the goods in question were consigned under his personal supervision and in his presence. The witness has informed the Court as to how the goods are packed by mechanical process and chromated (salted) so that they may not get rusted. His evidence shows that the goods, after lifting by means of crane, were put before wagon and covered with gunny bags and polythene to protect them from water. His evidence shows that polythene was also used while packing the goods and four strips were fixed over the goods and thereafter, the goods were kept in wooden blocks, which were ultimately placed in B.G. Wagon. His evidence further shows that, after loading the goods, the train checker was called and he had checked the packing and after issuance of certificate by him, the wagon was permitted to move. In cross-examination, the witness has denied the suggestion that he was not in a position to state as to whether zinc coating applied to the sheets was as per the standards laid down by Indian Standards Institute. The witness has stated that he had no documentary evidence to show that he was present when actual loading of the suit goods took place. The witness has denied the suggestion that he was testifying falsely to avoid liability of Hindustan Steel Ltd, Rourkela towards respondent. Though this witness is searchingly cross examined, nothing is brought on the record of the case to discredit his version regarding packing requirements having been not complied with at the time of loading the goods. The appellant has examined Niharendu Charuchandra at exh.50 to prove that packing conditions were not complied with at the time of loading the goods. Though this witness has asserted that he was working at the relevant time as Goods Clerk to supervise the weighment, it is evident that he had not supervised loading of the goods done by the consignor i.e. Hindustan Steel Ltd, Rourkela. In his cross examination, the witness has in terms admitted that, if packing conditions prescribed by the Railways are not complied with, it is mandatory to make a note thereof in the forwarding note. The forwarding note is not produced by the appellants on record of this case and therefore, it will have to be held that it was not mentioned in the forwarding note that packing conditions were not complied with by the consignor at the time when goods were loaded in the wagon. Having regard to the evidence led by the parties, the learned Judge has rightly come to the conclusion that packing conditions laid down by the Railway were fully complied with by the consignor. Therefore, the said finding recorded by the learned Judge is hereby confirmed and upheld.
9.The evidence of Narendrakumar Harjivandas, partner of the respondent firm, at exh.32 makes it absolutely clear that, at the time of taking delivery of the goods, the goods were found to be in loose condition and badly damaged. The respondent therefore had refused to take delivery of the goods, unless damages were paid to it. However, with a view to arriving at an amicable settlement with the appellants, the respondent firm had agreed to take delivery of the goods after proper assessment of damages and weighment. Evidence of Narendrakumar exh. 32 read with assessment report exh.38 make it abundantly clear that the goods were badly damaged due to rusting when they arrived at Jamnagar Railway Station. The appellants have not led any evidence to show that the officers of the Railway Administration had exercised due care and caution in respect of the goods while they were in transit. Though the appellants have examined eight witnesses, not a single witness has stated as to how the B.G. wagon No.29172 which contained the consignment, was dealt with in transit from the Packing Station to Sabarmati, where the goods were transhipped. Admittedly, the railway administration took nearly 83 days to send the B.G. wagon from Packing Station to Jamnagar. It is evident from the evidence of Narendrakumar who is the partner of the respondent firm that, in normal course, such consignment would reach Jamnagar within 20 days. The abnormal and unusual delay in transit of goods is not explained by any of the witnesses examined by the appellants. The appellants' witness Gulam Mustafa, at exh.53, who was working as a Goods Clerk, at Sabarmati at the relevant time, has stated that the packing of the consignment was examined by him and thereafter, the goods were transhipped. He has also admitted that the G.P. Sheets had white stains and therefore, he had sent telegram to the competent authority at Bundamunda which is produced at exh.54. A bare look at exh.54 makes it abundantly clear that the suit consignment was found badly affected by rusting. Another witness Babulal Soni who is examined by the appellants at exh.60, has stated that suit consignment was found damaged while unloading the goods and it was in loose condition without any packing material. According to him, on noticing the damage to the suit goods, he had sent wireless message to the authorities. The evidence of witness Chandramohan Jagmohanlal examined on behalf of the original defendants at exh.45 makes it clear that zinc coating applied on G.P.sheets was heavy and having adequate thickness and rusting would not have started even in wet atmosphere. As the appellants have failed to adduce any evidence to show that due and proper care was taken of the goods while in transit, it will have to be held that damage was caused to the goods because of the negligence on part of the railway administration. The railway is a common carrier with foresight. It is expected to carry the goods or animals of the consignor with the care with which a man of prudence would carry his own goods or animals. Such carrier knowing the perishable nature of the goods, is bound to carry the goods without unavoidable delay so that the goods may not be damaged or deteriorated due to delay or detention in the transit. The legislature in its wisdom therefore while making the railway liable as a common carrier thought it fit to introduce a provision by enacting section-76 in the Indian Railways Act, 1890. Having regard to the language in which section 76 was couched, it is evident that it applied to all cases of liability of the railway for compensation where the goods were damaged or deteriorated as a result of delay or detention in transit. The law presumes that when the railway undertakes to carry the goods, the goods must reach the destination station without deterioration, if the same are carried in normal or usual time. Any time spent in excess of that is termed as delay and if such delay results in deterioration of the goods, the railway is bound to show that the delay was caused without negligence or misconduct on its part. As noted earlier, no explanation is offered by any of the witnesses examined on behalf of the appellants - original defendants as to why delay of nearly three months had taken place in dispatching the goods to the destination station. Having regard to the nature of evidence led by the parties, no exception can be taken to the finding recorded by the learned Judge that the goods purchased by the respondent firm were damaged because of negligence on part of the railway administration and therefore, the said finding is hereby upheld.
11.The submission that the respondent has not proved the loss suffered by it and therefore, the appeal should be allowed, is devoid of merits. As noted earlier, the delivery of the goods was effected under a Panchnama after proper assessment of damages and weighment. The panchnama was prepared in presence of independent witnesses as well as officers of the appellants and respondent. The panchnama is produced on the record of the case at exh.38 , wherein damages are assessed at 20%. Relevant entry from the delivery book maintained by the appellants which is produced at exh.48 also shows that 1650 sheets were found damaged, whereupon the assessment of damages was fixed at 20% in presence of panchas. Witness Babulal at exh.60 examined on behalf of the appellants has also deposed before the Court that the suit consignment was found in damaged condition at the time of unloading at Jamnagar. In view of the clinching evidence led by the respondent, it becomes evident that the respondent had suffered loss claimed in the suit and the respondent had proved the same. In fact, the contents of exh.38 are based on visual examination of goods. Under the circumstances, the finding recorded by the learned Judge that the respondent firm proved that there was damage to the goods to the extent of 20% is eminently just and proper and therefore, the said finding is hereby confirmed.
12.The appellants have led no evidence to show that damage caused to the goods was because of its inherent vice and bad quality. On the facts and in the circumstances of the case, I am of the view that no error is committed by the learned Judge in passing the impugned decree in favour of the respondent firm and therefore, the appeal is liable to be dismissed.
13.It may be noted that this appeal was directed to be heard alongwith First Appeal Nos. 582/78 to 585/78 and those appeals are also dismissed by the Court (Coram : N.J. Pandya, J.) vide judgement dated January 12, 1995.
14.For the foregoing reasons, I do not find any merits in this appeal. The appeal, therefore, fails and is hereby dismissed. However, there shall be no order as to costs.
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