Union of India (UOI) and Others vs Bihar State Co-Operative Marketing Union Limited

Prabha Shanker Mishra, J.—The defendants Union of India, representing the Railway administration of N. E. Railway, Eastern Railway, North Eastern Railway and Ors. have appealed against the judgment and decree of the court of the 7th Additional Subordinate Judge, Motihari who has reversed the judgment and decree of the court of the Munsif, Motihari and granted a decree for a sum of Rs. 4,957.56 paise in favour of the plaintiff-respondent, Bihar State Co-operative Marketing Union Ltd., a society registered under the Bihar and Orissa Co-operative Societies Act.

3,800 bags of urea, each bag containing 51 kilograms were booked by the respondent''s Manager of Mokameh branch to Motihari. At Motihari the consignment was found short of weighment. The respondent-society took delivery of the same with shortage on 24-3-1972. As alleged, the consignment was pilfered and damaged (110 bags were pilfered, cut and damaged and 25 bags were missing) showing a loss of 5640 Kilo grams of Urea. A short certificate No. 556215 dated 14-4-72 was granted accordingly by the Motihari Railway station authority alleging that a loss of Rs. 4957.56 paise was caused to the respondent-society due to misconduct, negligence and carelessness of the Railway administration in transit. The respondent-society claimed the said amount and served the notice required under the law upon the Railway administration. The defendants have, as alleged, failed to respond and hence the society-respondent instituted the suit claiming the said amount.

The appellants in their return in the suit, besides other matters, stated that there were two consignments of chemical ferliser (urea) booked from Vishakhapatnam Port to Mokameh Junction in Broad guage wagons with remarks of-bags having hook holes and contents dropping. Invoice No. 134/A /R/R No. 170861 dated 14-3-1972 contained 950 bags of Urea and invoice No 133/A.R.R. No. 170860 dated 14-3-1972 contained 2850 bags of urea. The goods were loaded in three Broad Suage wagons No. SE 53839, S. E. 67385 and S. E. 67117. At Mokameh they were re-booked for Motihari under fresh Railway receipt being invoice No. 5 R.R. 0624/5 dated 19-3-1972 on original loading with original label from the yard. The consignor did not open the wagons at Mokameh. The same sealed wagons from Vishakhapatnam port were re-channelised to Motihari. The defendent-appellants, thus, maintained that the weighment of each bag was not necessarily 51 kilograms since there was no inspection of the bags containing urea at Mohameh, the condition recorded at original booking remained attached to the consignment. They also disclosed in their return that four bags were opened for transhipment to meter guage wagons at Garhara Station, which were detected to be torn and badly stacked. They maintained accordingly that they had no responsibility, if there has been loss in the consignment due to defective packing in disregard of tariff rules. They were not liable for the damages or loss in the consignment.

The learned Munsif accepted the defendants-appellants case and dismissed the suit. The learned 7th Additional Subordinate Judge, Motihari has, however, reversed the said judgment.

Mr. A. B. Ojha, learned Counsel appearing for the appellants, has not questioned the findings of the courts below on the question of service of notice and/or the shortage found in the consigments by the courts below. He has, however, contended that the plaintiff-respondent had to establish the quantity of urea despatched in the wagon by legal evidence. In the absence of any such proof, no presumption can be drawn from the Railway Receipt, Bijak and forwarding notes that the urea loaded at the starting station in the railway wagons weighed as claimed by the plaintiff-respondent-Society. He has further contended that the consignor shall have to show that defective and leaking wagons for the carriages of goods were supplied to him at the despatching station. Merely on the goods found short after reaching the destination, no inference can be drawn against the Railway. learned Counsel for the respondent, on the other hand, has contended that the Railway had to check at the starting station, in the instant case at Mokameh, from where the urea was re-booked, whether it weighed as claimed or not. Having once accepted the weighment supplied by the consignor, it is bound to deliver goods as shown to have been booked and entrusted to it. The short delivery in the instant case has been acknowledged in the receipt granted by the competent authority of the Railway at Motihari. The Railway is bound to acknowledge the shortage accordingly.

In the instant case the respondent-society appears to have taken open delivery at the destination station Motihari). On weighment of urea, shortage of 5640 kilograms was accordingly found. While delivering the urea at Motihari, a shortage certificate was accordingly granted. The plaintiff respondent-society, however, treated the consignment originating at Mokameh and treated weighment shown in the invoice and R.R. at Mokameh disclosing the actual weighment. It said nothing about the booking at Vishakapatnam port, not even it stated that the original booking contained remarks of bags having hook holes and contents dropping. It, in fact, made no mention of the original booking and transportation by Railway from Vishakhapatnam port to Motihari junction.

In Union of India v. Chotelal Shewanath Rai AIR 1937 Pat. 244. a Division Bench of this Court has said that in order to determine the actual shortage, it is necessary for the plaintiff-respondent to prove the quantity of the goods loaded at the sending station. It is not clear from the facts of the instant case and the evidence noticed by the courts below, whether the consignment was despatched under L/U, meaning that the loading and unloading had to be done by the sender or his agent. But at the same time it is clear that from the place from where the consignment originated, the leakage was already noticed and recorded. In Dominion of India v. Firm Museram Krishun Prasad AIR 1950 Nag 85. it has been noticed that Rule 15 Part I of the Goods Tariff provides inter alia that the weight given in the railway receipt and the forwarding notes is merely inserted for the purpose of estimating the railway charges and that there is no admission of the railway about the weight shown therein. In that case 255 bags of coconut were booked from the despatching station and it was noticed at the destination station that there were only 251 bags. It was mentioned in the railway receipt that 255 bags of conconut were consigned. The court held that by mentioning the weight in the railway receipt, the railway did not admit the correctness of the statement. In Union of India v. S. P. L. Lekhu Reddiar AIR 1956 Mad. 176. also a similar view has been taken. In this case 200 bags of white toor was despatched from the sending station. At the destination station only 189 bags were delivered. So there was shortage of 11 bags. The court held that the railway was not liable for the loss as there was no admission on the part of the railway that the wagon contained 200 bags in spite of the entry to that effect on the railway receipt because the loading was done by the party and not by the railway administration. The view taken by the Nagpur and the Madras High Court has been approved by the Supreme Court in the case of Takhatray Shivdatrai Mankad Vs. State of Gujarat, . In these and quite a few other cases, the courts have taken consistently the view that the quantity of the goods booked at the sending station has to be established before any responsibility is fixed upon the railway administration.

Even assuming that the plaintiff-respondent society delivered to the railway the number of bags as claimed, each weighing as asserted, it shall be further necessary, in my considered opinion, for the consignor to prove that after delivering the goods, it entrusted to the railway the entire quantity of urea which remained in the railway''s hand at its risk during transportation. In other words, it has to be shown by the plaintiff that the consignment was booked at the railway risk. There in no such pleading or proof. In fact there is no evidence at all that the consignment was booked at railway risk. By merely proving that when the wagon reached its destination, it was found in a defective state or that the goods delivered were short and alleging that the shortage was on account of pilferage, misconduct or negligence of the railway, the consignor cannot succeed in showing that the loss has been caused due to the misconduct of the railway servants and/or their negligence. In Chotelal Shewnath Rai''s case (supra) this Court has followed the principle enunciated in the case of B.N. Ry. Co. Vs. Moolji Sicka and Co., . and other cases decided by this Court and emphasised that the plaintiff must establish by positive evidence that it was owing to some defect in the wagon in which the goods were loaded that injury was caused. By merely proving that when the wagon reached its destination, it was found in a defective state and/or that there was a short delivery, the plaintiff does not discharge the onus which lies heavily upon him to prove the misconduct of the railway servants.

There is no plausible answer to any of the two contentions raised on behalf of the appellants. There is no material shown to me on behalf of the respondent to take a contrary view. The appellants'' case has to succeed in my judgment for the said two reasons.

In the result, this appeal is allowed, the judgment and decree of the learned 7th Additional Subordinate Judge in Money Appeal No. 14/1 of 1979/80 are set aside. The judgment and decree of the learned Munsif, Motihari in Money Suit No. 117 of 1976 are affirmed, There shall be no order as to costs.