Union of India (UOI) vs Gauri Shanker Badri Narain

Ramratna Singh and Shambhu Prasad Singh, JJ.—This appeal is directed against the judgment and decree of the learned Second Additional Subordinate Judge of Darbhanga, setting aside the judgment and decree of the learned Munsif of Darbhanga, who dismissed the plaintiffs'' suit for recovery of a certain amount as compensation for loss caused to a consignment of 151 bags of flour booked at Marufganj out-agency in Patna City, for carriage to Sakri railway station, under a Railway receipt dated 19-8-1957. The plaintiffs, who were the purchasers for value, could not get delivery of the consignment from the consignor for a long time and they then sent their servant (P.W. 4) for making enquiry. It transpired during the enquiry that the consignment had been unloaded at Muzaffarpur and kept there on the railway platform uncovered, uncared for an exposed to rain and sun. This was in October, 1957. On 19-11-1957 the plaintiffs, on receiving information from P.W. 4, wrote a letter to the Regional Traffic Superintendent. Muzaffarpur, drawing his attention to the condition of the goods lying there. On some action having been taken on the same date by the Regional Traffic Superintendent, the goods were moved to Sakri railway station where the same arrived on 26-11-1937. The plaintiffs then claimed assessment delivery and the same was made by the railway authorities at Sakri on the 21st January, 1958. After notice u/s 80 of the Civil Procedure Code, the present suit was instituted on the 13th March, 1959.

All these facts were admitted except the title of the plaintiffs in the goods. The Union of India asserted that the suit was barred by limitation and that the plaintiffs had no title to the goods. The plea regarding question of compensation and other matters were also taken; but the same were not raised either in this Court or in the lower appellate court and it is, therefore, unnecessary to mention the same.

Both the courts below found, on the basis of documentary as well as oral evidence, that the title to the goods was in the plaintiffs and, therefore, the plaintiff-firm were entitled to sue. On the question of limitation the trial court was of the view that, inasmuch as the plaintiffs were aware through their servant about the damage to the goods at Muzaffarpur Railway station in October, 1957, the suit was barred by limitation-the period of limitation prescribed under Article 30 of the Indian Limitation Act, 1908, being one year from the date when the loss or injury to the goods occurred. The lower appellate court, however, was of a different view, mainly on the basis of Ext. 3, the assessment delivery signed by Claims Inspector.

Regarding the right of the plaintiffs to sue the Union of India for compensation, there is a concurrent finding of fact by both the courts below that the title to the goods was in the plaintiffs, and Mr. Bose did not challenge this finding of fact. In Union of India (UOI) Vs. West Punjab Factories Ltd., it was held that 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 the consignee, the latter may sue; and whether title to goods has passed from the consignor to the consignee depends on the facts of each case. In the instant case, of course, the plaintiffs were not the consignor nor the consignee. One Ramkishun Sah was the consignor and the consignment was made to self as consignee. But both the courts below have found, on the basis of reliable evidence, that the title to the goods had been transferred by the consignor to the plaintiffs, soon after the consignment had been booked. In view of the aforesaid decision of the Supreme Court, it must be held that the plaintiffs were the owners of the goods and they were entitled to sue the Union of India for compensation.

Mr. Bose, however, seriously challenged the finding of the lower appellate court on the question of limitation. He submitted that the loss or injury to the goods occurred sometime in October 1957 -at the latest on the 31st October, 1957-when P.W. 4 came to know-about the damage to the bags consigned, at Muzaffarpur railway station, and therefore, the period of one year prescribed by Article 30 must be counted from that date; and if this contention be correct, then the suit was certainly barred by limitation, even if two months are added on account of the notice u/s 80 of the Code of Civil Procedure, to the said period. In this connection the observations of the lower appellate court in paragraph 10 of its judgment are reproduced below :--

The learned Munsif has not considered the fact that, although the goods had deteriorated in October, 1957, because the bags had been drenched in rain, they were likely to deteriorate further if delivery was not made at once. The deterioration of flour was not complete in October, 1957. It is evident from the fact that when assessment delivery was made on 21-1-58 the deterioration only to the extent of 75% in 80 bags, 60% in 40 bags and 25% in 31 bags was found. As the Hour bags had been drenched and maggots, were breeding, the goods would go on deteriorating as time would pass. This is a matter of common experience. I am unable to accept the argument of the learned Advocate for the respondent that the deterioration or damage to the goods was complete in October, 1957 and that the goods were in the same condition when they arrived at Sakri on 26-11-57 as they were in the condition at Muzaffarpur. Even when the consignment arrived at Sakri no delivery was made to the plaintiff till 21-1-58. During this period the flour must have deteriorated further. The plaintiff could know the extent of damage to the goods only when the assessment delivery was made on 21-1-58. Therefore, the time will run from 21-1-58 when the damage to goods was complete and the plaintiff could know the extent of damage....

The percentage of the deterioration mentioned above is taken from Ext. 3. Mr. Bose, however, relied on the allegations in the plaint and the evidence of P.W. 4, in support of his contention that the plaintiffs were aware some time in October, 1957, about the damage to the goods. In paragraphs 6, 7 and 8 of the plaint, it is stated that during enquiry by P.W. 4 it transpired that the goods had been kept on the platform of Muzaffarpur railway station "uncovered, uncared for and exposed to rain and sun"; the servant of the plaintiffs, i.e., P.W. 4 also found the flour in the bags of the said consignment "rotten and maggots bred in them as well as foul and obnoxious smells were emitting out of them". The plaintiffs immediately thereafter, by a letter dated 19-11-1957, informed the Regional Traffic Superintendent about the aforesaid facts. This letter has not, however, been produced by the Union of India. In paragraph 6 of the written statement, the Union of India said that the "alleged nondelivery, loss, destruction or deterioration of the goods in question is not admitted and the plaintiffs is put to the strict proof of his claim." Regarding the condition of the bags at Muzaffarpur, P.W. 4 said in his examination-in-chief that at Muzaffarpur he saw the flour bags being drenched in rain and they had become rotten and there were maggots in the bags. In his cross examination the witness said that he could not say on which dates he reached Muzaffarpur on two occasions; he could not say if there was any identification marks on the bags. He did not count the entire number of bags lying in Muzaffarpur goods-shed. He could not say what goods they contained and to whom they belonged; the flour had become unfit for human consumption and it was smelling bad smell; there were maggots too. He could not say how many bags were smelling.

The evidence of P.W. 4 reproduced above clearly shows that whatever he told his master about the condition of the consignment in question at Muzaffarpur railway station, was only by guess and by a look at the bags lying in or near the goods shed. In other words, he came to know in a general way that the goods were damaged but he did not and could not know the exact nature of the injuries and the quantum thereof on which alone damage could be assessed and claimed. The statements made in paragraphs 6 and 7 of the plaint, referred to earlier, also speak of the general condition of the bags containing the flour and not the exact condition thereof. There is no evidence on behalf of the Railway about the condition of the consignment at Muzaffarpur or even at Sakri railway station before the date when the assessment was made. The observations of the learned Subordinate Judge, are, therefore, absolutely justified and the same cannot be questioned on any ground whatsoever.

The view taken by the learned Subordinate Judge is supported by a decision of the Supreme Court in Jetmull Bhojraj Vs. The Darjeeling Himalayan Railway Co. Ltd. and Others, . In that case a consignment of. 259 bales of cloth had been booked at a railway station on the then Great Indian Peninsula Railway to a railway station on Darjeeling Himalayan Railway on May 10, 1946. Only 169 bales of cloth, however, reached the destination on or about June 7, 1946. There was some correspondence with the consignee and the officers of the Darjeeling Railway administration. The consignee-plaintiff wrote a letter on December 21, 1946 to the Railway authorities that they had come to know that the remaining 90 bales had subsequently arrived at Giellekhola "in a very damaged condition". In another letter dated January 29, 1947, the plaintiff-appellant wrote that the cloth had arrived Giellekhola nearly one month back in "hopeless condition". In the plaint of the suit the plaintiff stated: "Before the receipt of those bales at Giellekhola in December, 1946, it was not possible for the plaintiff to know about the aforesaid damaged condition of those bales, but no sooner the same arrived, the fact that the same arrived in hopelessly damaged condition was brought to the notice of the railway authorities concerned". On these facts, the majority judgment of the Supreme Court observed:

...Now when goods are consigned by a consignor he would not be in a position to know the precise date on which the loss or injury has occurred. In Union of India (UOI) Vs. Amar Singh, , this Court has held that the burden would be on the railway administration who want to non-suit the plaintiff on the ground of limitation to establish that the loss or injury occurred more than one year before the institution of the suit. No attempt has been made on behalf of the D.H. Railway to show that the damage in fact occurred more than one year before the suit was instituted. All that is said on their behalf is that the appellant knew in December, 1946 that the consignment appeared to be damaged. In this connection reliance is placed on Ext. B which is a letter addressed by the appellant to the D.H. Railway on December 21, 1946. What is stated there is that the consignment has arrived at Giellekhola in ''a very damaged condition''. This has reference to the outer covering or the package and not to the contents. Moreover, delivery was given nearly two months after this and it is not possible to say whether the damage which was noticed at that time had already been caused before December 21, 1946 or was caused thereafter. The D.H. Railway which had the custody of the goods could alone have been in a position to say, if at all, as to when the damage was caused. Upon the material before us it is not possible to say that the suit was instituted beyond one year of the accrual of the cause of action....

Mr. Bose tried to distinguish this decision of the Supreme Court and submitted that on the evidence before their Lordships the plaintiff did not know the condition of the contents of the bales of cloth, while in the instant case P.W. 4 could and did know the condition of the contents of the bags of flour. The pleadings as well as the evidence of P.W. 4 on this point have been summarised earlier and we are satisfied that neither P.W. 4 nor the plaintiffs could know the exact nature and extent of the damage done to the different bags of flour and whatever P.W. 4 said about the condition of the bags, and the plaintiffs'' report on information received from P.W. 4, was with reference to what outwardly appeared to P.W. 4. Hence, on principle the decision of the Supreme Court applies to the instant case and there is no material to make the decision inapplicable to this case.

Mr. Kanhaiyaji, who appeared on behalf of the plaintiff-respondents relied on a Division Bench decision of the Madras High Court in M. Sultan Pillai and Sons, a registered partnership firm Vs. The Union of India (UOI) and Others, in support of the view taken by the court of appeal below. In that case a consignment of Beedi tobacco was despatched by rail on the 24th July 1956. The plaintiff, who was the consignor of the goods found the same wet on arrival and, therefore, did not take delivery. On the 1st September, 1956, the plaintiff wrote to the Chief Commercial Superintendent of the railway that the consignment arrived at its destination after a pretty long time and that almost all the bags were found damaged due to rains as the bags had been loaded in an old wagon exposed to sun and rain, and told the Commercial Superintendent that since the bags were damaged the plaintiff was not in a position to take delivery of the consignment. On the plea of the railway on the question of limitation, in view of what was stated in the plaintiff''s letter dated 1st September, 1956, their Lordships of the Madras High Court observed:

...There is no doubt evidence in this case that prior to the open delivery, the plaintiff had come to know, in a general way, that the tobacco had been wetted and damaged. But the exact nature of the injury and quantum thereof on which alone he could claim damages, was known to him only when the goods were examined after opening each bag and ascertaining its condition....

Their Lordships, therefore, counted the period of limitation from the date of open delivery when the goods were examined after opening each bag not the date of the letter dated 1-9-1956-and decreed the suit after setting aside the decree and judgment of the lower court which had dismissed the suit. The aforesaid observations of their Lordships aptly apply to the facts of the present case and, if we may say so with respect, we entirely agreed with them. Mr. Bose tried to distinguish this case, because it related to Beedi and not to edible goods like flour; but there is no distinction in principle.

Mr. Bose ultimately relied on the decision of Mr. Justice Bennet of the Allahabad High Court in Secy. of State Vs. Neaz Ali Hamid Ali, . In that case a consignment of 30 bags of rice was sent to the plaintiffs from Saharanpur to Agra and arrived on the 3rd August, 1931. There was a letter dated the 5th August, 1931, from the plaintiffs to the defendants alleging that the consignment had been found badly damaged and in deteriorated condition owing to the wilful negligence of the railway authorities. The damage was stated to have been caused by water to the consignment of rice and there was no suggestion in the plaint or in the judgment of the lower court that further damage was caused at any later date. His Lordships said that it was clearly shown by admission of the plaintiffs'' letter of 5th August, 1931 that the loss had occurred prior to that date and, therefore, the period of limitation was counted from that date and the suit was time barred. This was a judgment in civil revision and it is not clear from this judgment whether there was any evidence on the record that the plaintiffs in that case were aware or not, before the open delivery of the goods on the 15th August, 1931, of the exact extent of the damage to the goods for which the plaintiffs could sue the railway for compensation. Moreover, in the instant case, the decisions of the Supreme Court and the Division Bench of the Madras High Court, referred to above, are more appropriate.

On the facts of the instant case, the period of limitation has to be counted from the 21st January, 1958, the date of the open delivery and two months have to be added for the notice u/s 80 of the Civil Procedure Code. As the suit was instituted on the 13th March, 1959, it was not time barred.

In the result, the appeal is dismissed with costs and the judgment and decree of the court of appeal below are affirmed.