Perumal Mudaliar vs The South Indian Railway Company, Limited

Horace Owen Compton Beasley, Kt., C.J.—This is really a comparatively simple case although a great deal has been made of it here, and

certainly one part of the case, although it does not affect the matter, give rise to a considerable amount of discussion. With that I will deal later.

The suit was filed by the petitioner against the South Indian Railway Company claiming a refund of an excess charge levied by the company at

Podanur on a consignment of 200 bags of cocoanut oil-cakes and also a charge made for demurrage as well. There was also a claim for interest.

The bags were consigned at Rajahmundry on 20th September, 1932, the destination of the consignment being Podanur. The bags arrived at

Podanur and on 27th September, 1932, a sum of Rs. 159-14-0 was tendered as freight for the bags by the petitioner to the Railway Company.

The company refused to deliver the consignment to the petitioner, unless an excess charge of Rs. 90-8-0 was paid and also a smaller sum of Rs.

7-15-0 for demurrage. On 29th September, 1932, the amount of excess charge and demurrage was paid by the petitioner under protest and

delivery of the bags taken. The goods when they were put on the railway for carriage at Rajahmundry were certified by the consignor in the risk-

note as being ""intended for manurial purposes and for inland use only, not intended for shipment."" A declaration (Ex. III) was also given by the

consignor to the following effect:

This is to certify that the consignment of 200 bags oil-cake booked under invoice No. 3 of 20th September, 1932, Rajamundry to Podanur and

loaded in E.I.R.C.G. No. 27300 is for manurial purposes and for inland only and not intended shipment.

As before stated, the consignment arrived at Podanur and the Railway Company, having reason to suppose that these oilcakes were not going

to be used for the purpose set out in the certificate but as cattle-fodder, under Rules 15 and 20 of the South Indian Railway Company, Ltd.,

Goods Tariff, Part I, reclassified the consignment and called upon the consignee to pay the excess charge which the Railway Company are entitled

under Rule 20 to levy. The question in the lower Court was whether in fact there had been an incorrect description of the consignment given by the

consignor at Rajahmundry. The question of description is one of considerable importance because if the oil-cakes were intended for the purposes

of manure as was stated, the consignment would have applied to it a lower rate, namely, the C-FF rates, whereas, if the oilcakes were for other

purposes, a higher rate, namely, that ultimately levied by the Railway Company, would have to be applied. The learned District Munsif after

hearing the evidence of the petitioner''s witnesses which he describes as not being very convincing, held that the petitioner had not established his

case, namely, that these goods were correctly described in the certificate and the declaration to which I have already referred. He accordingly

dismissed the suit. Then a further point was taken, namely, that the Railway Company was not entitled after the acceptance of the declaration at

the'' forwarding station to reclassify the goods consigned. Upon this point he was in favour of the Railway Company and obviously quite rightly,

having regard to Rules 15 and 20 to which I have already referred and I imagine every common sense principle. Here it has been contended that

there was no evidence before the District Munsif upon which he could hold that there had been a misdescription of these goods at Rajahmundry; in

other words, the learned District Munsif was bound to accept the plaintiff''s oral evidence and that of his own witnesses upon this point, there being

no evidence at all to the contrary called on behalf of the Railway Company. It is here that the matter to which I first referred at the beginning of my

judgment arises. At the trial the following documents were put in and marked as Exhibits on behalf of the Railway Company, namely, a report

made by a Claims Inspector of the South Indian Railway to the company touching this matter setting out the result of his enquiries and the opinions

of others and his own with regard to the use of cocoanut oil-cakes in Coimbatore and elsewhere. This report was marked as Ex. VI. Two letters

were put in, Exs. VII and VII-A, the former being from the Chief Commercial Superintendent of the Railway Company to the Director of

Agriculture, Madras and the latter being the reply from the Director of Agriculture giving his opinion upon the question put to him touching the

matter of these oil-cakes. I am amazed to see that those documents were allowed to be exhibited without the writers of them being called to give

evidence if they were tendered, as apparently it is contended they were, as forming the opinion of experts. But Ex. VI, the report of the Claims

Inspector, cannot be regarded as expert evidence on the question as to the use of oil-cakes since the report is based purely upon hearsay

evidence, though the opinion of the Director of Agriculture is certainly the opinion of an expert, but this evidence being only documentary, is clearly

inadmissible. The evidence of experts must be given in the ordinary way. Subject to certain exceptions-those exceptions being amongst others the

certificates of the Imperial Serologist touching the matter of blood-stains and of the Chemical Examiner, which are made admissible in evidence by

themselves-it is quite obvious that the opinion of an expert must be given orally and that a report merely or certificate by him cannot possibly be

evidence. Unless he goes into the witness-box and gives oral evidence, there can be no cross-examination of the expert at all. Most amazingly

these documents were allowed to be marked as Exhibits without any sort of objection by the pleader for the petitioner, and had he raised the

objection which it was his duty and right to do, then the Railway Company would have been given time, I have no doubt, to call the experts in

question. No such objection was ever taken; and, quite apart from that, even without an objection, it seems to me that the learned District Munsif

was quite wrong in allowing those documents to be marked at all as Exhibits in the case. This matter-no objection having been taken to the

evidence-I thought at one time would justify me in remanding the case for a further finding of fact after the respondent company had been given an

opportunity of putting forward the evidence in the regular way by means of witnesses. But having gone through the evidence adduced on behalf of

the petitioner, I entirely agree with the learned District Munsif that the petitioner did not show that the certificate Ex. Ill given was a correct one and

that the description that the goods were intended for use as manure was a correct description. He could have shown this by producing evidence to

show that the oil-cakes had in fact been, put to that use but, although the evidence was given two years after the consignment was taken delivery of

at Podanur, no such evidence was forthcoming. The plaintiff was bound to prove that this particular consignment was used for the purpose of

manure. It would not have availed him-and in fact his evidence did not go to anything like that length-to show that some other consignment of

cocoanut oil-cakes had been used for that purpose. As I read the evidence, account books were kept but no account books were produced in

order to show that this consignment was used for the purpose of manure or was sold to somebody for use for that purpose. No evidence whatever

worthy of the name has been called to show how that consignment was dealt with by the petitioner after he had taken delivery of it. On the facts,

therefore, the petitioner failed to prove his case. On the question of law, I am clearly of the opinion that the learned District Munsif was right in

holding that the Railway Company was entitled to reclassify the goods in the manner it did. I had presented to me an argument which completely

ignored Rules 15 and 20 of the South Indian Railway Company, Limited, Goods Tariff, Part I and proceeded to the length of stating that when

once a Railway Company has accepted goods and the certificate and the declaration made as to the nature, quality and description of the goods,

then thereafter even if the Railway Company discovers that the certificate is false and the description is wrong and that the goods ought to have had

applied to them a higher rate, it is not entitled to charge the higher rate. Quite apart from the fact that this amazing proposition is not supported by

any authority in point, were that to be the law, then fraud would be made easy. For example, a person could consign goods enclosed in a securely

packed chest and give to them a certain description and without opening the case the Railway Company would be unable to say at the time the

consignment is made whether the goods answer to the description or not. If the Railway Company accept the goods as being of that description, it

does so on the assumption that the description is correct. If it finds that the description is otherwise, it is entitled to its remedy. Apart from this

obvious right there are Rules 15 and 20. Rule 15 lays down that the Railway reserves the right of re-measurement, re-weighment, re-classification

and re-calculation of rates, terminals and other charges and correction of any other errors at the place of destination and of collecting any amount

that may have been omitted or under-charged and that no admission is conveyed by a Railway receipt that the weight as shown therein has been

received or that the description of goods as furnished by the consignor is correct. How the argument addressed to me could possibly be presented

with any hope of success in view of the latter words of this rule I cannot understand. Rule 20 provides that if on arrival at destination it is found that

the goods have been improperly described and that a lower rate than that correctly applicable has been thereby obtained, charges at double the

highest rate in force, viz., 9th clause, will be levied calculated on the entire distance over which the consignment has been carried. I may here

mention that no double rate was in fact levied by the company but all that the company did was to levy the rate which is properly applicable to that

particular consignment, it being a consignment which could not be carried under the C-FF rates. This disposes of the case entirely. Both on the

facts and upon the law the petitioner''s suit rightly failed and this Civil Revision Petition must be dismissed with costs.