(1) This is an appeal preferred by the Union of India representing the Eastern Railway from a decree made against it by the Civil Judge at Belgaum for a sum of Rs. 20,316-11-3 in favour of one Allahabad Faizulhukka Pathan who is the respondent in this appeal.
(2) The plaintiff in whose favour the decree was made consigned from Nipani out-agency on the then M. and S. M. Railway, 106 bags of tobacco under a railway receipt which is marked as Exhibit 50. Nipani out-agency was in the District of Bengaum. The consignment was made on 20-4-1948. These goods were consigned to the State of Behar to a place called Jhajha which was on the Eastern Railway. The relative Risk Notes which were taken in forms 'A' and 'b' are marked Exhibits 67 and 68.
(2-A) It is undisputed It is undisputed that 90 of those 106 bags reached Jhajha Station on 22-5-1948 and the remaining 16 bags arrived on 17-6-1948.
(3) It is indisputable and it is borne out by the entries made in Exhibit 50, the railway receipt which had been despatched to one Ibrahim who was a businessman at Calcutta, by the plaintiff, that between 25-5-1948 and 30-8-1948. Ibrahims representative was asking for the delivery of the goods which had arrived at Jhajha but was being told by the Goods Clerk of that railway station that the goods had not arrived.
(4) The evidence in the case discloses and it is also admitted by the defendant, that the reason why Ibrahim's representative was not delivered the tobacco was that the 106 bags of tobacco were wrongly marked with No. 1 whereas they should have borne No. 4, which was the number of the invoice relating to the consignment. It is stated that wrong marking was done by a servant of the Railway administration at Nipani. So it was that the goods Clerk at Jhajha declined to give delivery of the tobacco to Ibrahim's representative who has been examined as P.W. 2. This, the Goods Clerk did in spite of the fact that P.W. 2 pointed out to him that it was clear in the circumstances of the case that the number which had been marked on the bags was a mistake for the correct number. It is not disputed that on all the 106 bags the name of the plaintiff had been written and that except for the wrong number on those bags there was other clear evidence that those bags were the bags consigned by the plaintiff from the Nipani out-agency.
(5) It is clear from Exhibit 50, the railway receipt, that P.W. 2 made an attempt to get delivery of the tobacco at least on 23 occasions and on each occasion the Goods Clerk wrote the letters 'N. R' on that railway receipt, the two letters being an abbreviation for the words 'not received'.
(6) It was only on 23-6-1948 that the Station Master of Jhajha wrote the letter Exhibit 70 to the Station Master, Nipani, in which he asked for clarification as to the consignment which had been wrongly marked and as to whom it should be delivered. He followed up that letter by a further letter Ext. 71 addressed on 25-7-1948 and a third letter Exhibit 72 addressed on 16-8-1948. It was as late as on 23-8-1948 that the Station Master, Nipani informed the Station Master at Jhajha by forwarding a copy of the communication which he had addressed to that effect to the Chief Commercial Manager of Benares that the 106 bags which had been wrongly marked had really to be delivered to Ibrahim, and that they could be so delivered.
This letter is marked Ext. 73. This letter was followed up by another letter addressed on the next day to the Station Master at Jhajha to the same effect. This letter is marked Exhibit 74. Meanwhile, on 5-8-1948 Ibrahim wrote a letter Exhibit 51 to the Chief Commercial manager, Eastern Railways, Calcutta, Complaining of the refusal of the Station Master at Jhajha to deliver to him the tobacco and demanding delivery thereof. But no reply was received by Ibrahim to that communication.
(7) Even though the station Master at Jhajha was addressed Exhibits 73 and 74 on August 23 and 24, 1948 by which he was instructed to deliver the tobacco to Ibrahim, he did not offer to deliver the tobacco in that way to Ibrahim until 14-9-1948. But, meanwhile, Ibrahim presented by means of his letter Exhibit 54 addressed to the Chief Commercial Manager, Benares, a claim for a sum of Rs. 27,710/-which, according to him, represented the value of the tobacco the delivery of which had been wrongfully refused to him. This letter bears the date 28/30, August 1948.
It was 15 days after the presentation of this claim that the Station Master at Jhajha offered to deliver the tobacco to Ibrahim, but by his letter Exhibit 76 which he wrote on 4-10-1948, he refused to take delivery of the tobacco. After some further correspondence between Ibrahim and the Chief Commercial Manager of the Eastern Railway Ibrahim wrote Exhibit 48 on 18-4-1949, to the plaintiff pointing out to him that it was the plaintiff that had to prefer a claim for payment of compensation for the wrongful detention of the tobacco by the Railway administration and also intimating him that he would recover from the plaintiff such loss as he might have been exposed to as a result of the transaction which he had with him. On 9-6-1949 the plaintiff issued a notice to the Chief Commercial Manager of the Eastern Railway demanding payment of compensation of Rs. 27,710/-.
But even though it was the plaintiff that had issued that notice, strangely enough the Railway administration persisted in carrying on its correspondence with Ibrahim. On 22-8-1949, a letter was written by the Station Master of Jhajha under the provisions of Ss. 55 and 56 of the Indian Railways Act intimating him that the tobacco was lying at the risk of Ibrahim in the Railway Station at Jhajha and that suitable action would be taken against him for the recovery of the expenditure to which the Railway administration was exposed as a result of the neglect on the part of Ibrahim to take delivery of the tobacco.
(8) After a further notice was issued on 1-8-1949 by the plaintiff to the Railway administration which is marked Exhibit 63, the suit out of which this appeal arises was brought on 4-10-1949 in which the plaintiff claimed a sum of Rs. 20,316-11-3 by way of compensation with interest from the Railway administration.
(9) The case as set out in the plaint was that the tobacco was consigned by the plaintiff to Ibrahim and that the relevant railway receipt was forwarded to him in order that he might take delivery of the goods at the destination. The plaintiff's case was that as a result of the Railway administration refusing to deliver the tobacco to Ibrahim, although it was bound to deliver it as soon as the consignment was received in Jhajha Station, the tobacco had by the time the Railway administration offered to deliver on 14-9-1948 become utterly useless and unmarketable. The plaintiff charged the Railway administration with negligence and claimed re-imbursement to the extent of the entire value of the consignment by way of damages.
(10) This suit was resisted on behalf of the defendant on various grounds. It was contended that the plaintiff had no right to maintain the suit that no proper notice had been issued under S. 77 of the Railways Act, that it was the consignee Ibrahim that had improperly refused to take delivery of the tobacco, that in the absence of misconduct on its part the Railway administration was not, as provided by Risk Notes 'A' and 'B', liable to pay any compensation to the plaintiff, that there was no negligence or misconduct on the part of the administration, that the claim was excessive, and that the suit was barred by limitation. The learned Civil Judge negatived every one of those contention and made a decree in favour of the plaintiff.
(11) The above contention which were urged before the learned Civil Judge have all been reiterated before us by the defendant's learned advocate Mr. Nanjundiah was that the Railway administration was filly justified in declining to deliver the goods to P.W. 2 till 14-9-1948. Mr. Nanjundiah has urged before us that any carelessness such as might be attributable to the servants of the Railway administration in the marking of the bags of tobacco could not amount either to negligence or to misconduct.
That being so, and particularly since even the carelessness, if any, was not committed by any of the employees, of the Railway Administration in the Eastern Railway or by the Railway employees at Jhajha Station, it was contended that until and unless the Goods Clerk satisfied himself that the goods which were wrongly marked were really goods to the delivery of which the consignee was entitled, he could withhold the delivery of the tobacco without the railway administration becoming liable, as a result of such refusal to deliver to pay any compensation or damages.
(12) It appears to us that this contention is devoid of substance. Excepting the wrong number appearing on the bags the Goods Clerk at Jhajha Station had sufficient material in his possession on the basis of which he could have come to the conclusion without any difficulty whatsoever that the 106 bags which reached Jhajha Station between 22-5-1948 and 17-6-1948 related to the railway receipt Ext. 50 of which Ibrahim had become the endorsee.
(13) Mr. Nanjundiah has not disputed before us--and it is common knowledge--that a copy of the railway receipt which is usually prepared in triplicate would have been received by the Station Master at Jhajha by the time the goods reached that place. The bags themselves bore the name of the plaintiff as the consignor. Every other particular which would have appeared from the consignment which reached Jhajha Station would have made it clear to the Station authorities at Jhajha that the consignment which bore the wrong number was nevertheless the consignment referred to in the Railway receipt Exhibit 50.
(17) The Railway administration when was in the position of a carrier could not absolutely refuse, as it did in this case, to deliver the tobacco to Ibrahim on the presentation by him of the railway receipt Exhibit 50. It is true that the Station authorities at Jhajha could have intimated Ibrahim that delivery would be effected to him after satisfying themselves about the identity of the goods which had arrived in Jhajha. Such qualified refusal on the part of the Railway administration to deliver the goods to Ibrahim might have, in certain circumstances, been justified.
But in this case, as we have pointed out, there were no grounds at all for the employees at Jhajha for entertaining any reasonable doubt as to the identity of the goods, or as to their having been consigned under the railway receipt Exhibit 50. The refusal to deliver the goods to P.W. 2 on the presentation of the railway receipt could not therefore but be regarded as a wrongful refusal to deliver the goods to the person entitled to the delivery thereof.
It is well settled law that when a carrier wrongfully refuses to deliver goods to the person entitled to delivery thereof, he commits an act of conversion and in such a case, the rule of law on which Mr. Nanjundaiah strongly relied, that a consignee is bound to the delivery of the goods when the Railway administration offers to deliver them even if they are in a damaged condition when they arrived at the destination and that he should thereafter proceed to in respect of the injury caused to his goods can hardly have any application.
(18) The case before us resembles the case of East India Rly. Co. v. Baburam, AIR 1928 Lah 804. That was a case where 62 bags out of 64 bags of sugar of the plaintiff's consignment refused delivery. As the market rate was steadily falling the plaintiff served the railway company with notice claiming the value of the consignment from the railway. After the receipt of the notice the railway notified the plaintiff that 62 bags of his were lying undelivered at his risk incurring demurrage charges and if they were not removed within ten days the consignment would be auctioned as unclaimed property. The bags were accordingly auctioned and the plaintiff sued the company for the value of the sugar and interest.
(19) Their Lordships of the High Court of Lahore in coming to the decree which he claimed, pointed out that in the circumstances of that case since the railway company had no right to refuse delivery to the plaintiff, the failure on the part of the railway to deliver the goods to the plaintiff amounted in law to an act of conversion on the part of the railway with respect to the undelivered goods. Their Lordships therefore came to the conclusion that the plaintiff could recover from the railway the value of the goods of which delivery had been refused.
They depended in reaching that conclusion on an earlier decision of that Court in Haryana Court Mills Co., Ltd. v. B. B. and C. I. Rly. Co., AIR 1927 Lah 471 and another decision of the High Court of Allahabad in G. I. P. Rly. v. Radhaemal Manni Lal : AIR1925All656 . In the former case the railway had failed to deliver the machinery handed over to it for conveyance and was sued for the value of these goods. In reply the railway pleaded that the goods were ready for delivery without alleging that they had ever gone astray. It was held that as the railway company had not lost the goods but had been guilty of a detention coupled with neglect or refusal to deliver them up after demand, that refusal or neglect amounted to conversion and that the plaintiffs were entitled to the full price of the goods as damages.
In the latter case which was decided by their Lordships of the High Court of Allahabad, 7 out of 9 bags which had been consignment was twice refused by the Station Master but on two subsequent occasions the railway asked the plaintiffs to remove the seven bags which were theirs. The plaintiffs refused to do so and the bags were auctioned. It was held that the railway company after refusing to deliver the seven bags, retained them at their own risk, and that the plaintiffs were entitled to recover the market value of the goods and not merely the price which they had realised at the auction.
(20) If we may say so with respect, we entirely agree with the enunciation of the law in the above three cases. This is also the view authoritatively summed up in Halsbury's Laws of England, Volume IV (Simonds' edition) page 150, paragraph 396, where while referring to the duty of a carrier to deliver goods entrusted to him for transport, it has been stated as follows :
'As long as he deals with the goods merely as a carrier in the ordinary course of his business he is under no liability for conversion of the goods for he is bound to carry goods delivered to him for carriage; but if a demand for the goods be made by one who has a right to demand them, and the carrier refuses to deliver them to him on the ground that they belong to a third party, an action lies against the carrier. If the carrier delivers goods in the ordinary course, without notice that the consignee is not entitled to them, he is under no liability; and if he delivers the goods on demand, out of the ordinary course, to one who is entitled to the possession of them, he is under no liability. If the goods are demanded, the carrier may give a qualified refusal, so as to have a reasonable opportunity of acquainting himself with the facts of the case. If, however, he absolutely refuses to comply with the demand, then the right of property may be tried in an action against him; but he is entitled to interplead.'
Applying the above principles to the present case, it cannot be said that the refusal on the part of the railway authorities at Jhajha to deliver the tobacco to Ibrahim was a qualified refusal. It was an absolute refusal on their part to deliver the tobacco to him on entirely insufficient and inadequate grounds. It must also be held that there was unreasonable and inordinate delay on their part in obtaining clarification about the identity of the goods. There was equally unjustifiable delay in the offer which was ultimately made on 14-9-1948 to deliver the goods to Ibrahim. Ibrahim, in our opinion, was therefore entitled to decline to take delivery of those goods of which we must hold there had been a conversion in law by reason of their wrongful detention and by reason of the railway authorities wrongfully refusing to deliver them to Ibrahim.
(21) This is therefore a case in which the claim for compensation has to be sustained, but Mr. Nanjundiah, the learned advocate for the railway administration has urged before us that even so the claim, if any, could have been made only by Ibrahim and not by the plaintiff. This argument rested on what Mr. Nanjundiah though had been established by indisputable evidence in the case, viz., that Ibrahim had purchased the tobacco from the plaintiff and before it was consigned to Jhajha. While addressing this argument before us Mr. Nanjundiah found himself in considerable difficulty on more than one occasion. It is to be seen from the written statement produced on behalf of the railway administration that no such plea was urged in it.
All that was contended in the written statement was that the plaintiff had no right to maintain the suit. The basis of that contention was not disclosed in the written statement. It was not urged by the railway administration that the plaintiff had sold the tobacco to Ibrahim and Ibrahim and become the purchaser of that tobacco. But Mr. Nanjundiah has urged that there was abundant material in this case pointing to the conclusion that Ibrahim had become the purchaser of the tobacco and that the title to the tobacco had passed from the plaintiff to Ibrahim by the date of the despatch of the consignment from Nipani.
(22) As we have mentioned the railway receipt which was obtained by the plaintiff at Nipani outstation entitled the plaintiff himself to tae delivery of the consignment at Jhajha. The consignment was named as 'self'. The plaintiff however made a blank endorsement on the railway receipt and forwarded it to Ibrahim. In the plaint it was stated that this was done with the intention of enabling Ibrahim at Jhajha to take delivery of the consignment on his behalf. The learned Civil Judge understood the averment contained to para 2 of the written statement as amounting to an allegation that Ibrahim was the agent of plaintiff for the purpose of taking delivery of the tobacco at that end and that he was the plaintiff's agent in respect of the entire transaction.
(23) Mr. Nanjundiah tried to persuade us to hold that this was a misinterpretation of that part of the written statement; but we are not inclined to agree with him in that regard. In spite of the fact that the plaintiff made it clear that the railway receipt was sent to Ibrahim so that he could take delivery of the tobacco at Jhajha on behalf of the plaintiff, the railway administration did not, in the written statement produced by it, traverse that allegation or dispute it. We must therefore tae it that the endorsement on the railway receipt in favour of Ibrahim was made only for the limited purpose of enabling him to take delivery of the goods at Jhajha and that that endorsement does not establish the fact that Ibrahim had become the purchaser of the tobacco.
(24) Mr. Nanjundiah himself did not contend before us, and he made it very clear to us that he was not resting his argument that Ibrahim because the purchaser of the tobacco entirely upon the fact that the railway receipt had been endorsed in blank and forwarded to Ibrahim. His argument rested principally on the fact that there was other evidence from which we could deduce a sale by the plaintiff, to Ibrahim of the tobacco. He pointed out to us that Exhibit 88 which is an invoice sent to Ibrahim by the plaintiff states that Ibrahim had to credit to the account of the plaintiff the value of the tobacco consignment under exhibit 50.
It has been pointed out to us that the plaintiff charged Ibrahim with commission of 2 1/2 per cent. It has also been argued that Exhibit 48, the letter addressed by Ibrahim to the plaintiff contains an intimation to the plaintiff contains an intimation to the plaintiff that Ibrahim would hold the plaintiff liable for his loss. Much is made of the fact that the correspondence which was carried on before the institution of the suit in relation to the detention of the goods was all carried on for a considerably long time between Ibrahim and the Chief Commercial Manager.
(25) It seems to us that none of those circumstances can conclusively establish that the title to the goods, had, after the consignment was despatched from Nipani, passed to Ibrahim. It is well settled law that the question as to when the title to the goods stands transferred from a seller to a buyer, even in cases where it could be said there was a sale of the goods, depends upon the intention of the parties such as could be deduced from the terms of the contract, the conduct of the parties and the circumstances of the case.
The question therefore, whether Ibrahim became the purchaser or was merely an agent of the plaintiff was in this case a mixed question of law and fact. If it was the intention of the railway administration to establish that the plaintiff had become divested of his title to the tobacco and that he had sold the tobacco to Ibrahim and that the title to the tobacco had passed from the plaintiff to Ibrahim, it was incumbent on the railway administration to allege affirmatively those facts and to prove the transfer of title in the goods from the plaintiff to Ibrahim by trustworthy evidence. This the railway administration failed to do.
(26) On the contrary when the plaintiff issued the notice Exhibit 90 on 9-6-1949 demanding payment of compensation to him and when he followed it up by the notice Exhibit 63 which he sent to the railway administration on 1-8-1949, the railway administration did not repudiate his right to claim compensation or his title to the tobacco.
(27) In our opinion, we cannot properly differ from the finding of the learned Civil Judge that Ibrahim had not become the purchaser of the tobacco and that he was only constituted agent of the plaintiff to tae delivery of it at the destination station. That being so, the argument that the plaintiff was incompetent to make the claim against the railway administration has to fail, particularly since it is admitted that Ibrahim had not, by the time the suit was brought or at any time before it, paid any part of the sum of money which he was asked by the plaintiff to credit to his account under Exhibit 88.
(28) Mr. Nanjundiah's next contention which is closely connected with the contention which we have just now repelled was that the suit of the plaintiff had to fail on account of the omission on the part of the plaintiff to issue a proper notice under S. 77 of the Railways Act. The notice in this case which was issued within the period of six months within which it should have been issued, was Exhibit 54 and it was issued by Ibrahim. The earliest notice issued by the plaintiff was issued on 9-6-1949. Mr. Nanjundiah therefore contends that the omission on the part of the plaintiff to issue a notice within the period prescribed by S. 77 was fatal to the suit.
This contention has to fall if, as we have found, we can regard the notice Exhibit 54 issued by Ibrahim as a notice issued on behalf of the plaintiff as his agent. The plaintiff stated in his plaint that Ibrahim is used that notice on his behalf, and that allegation was not denied in the written statement produced by, the railway administration. The railway administration produced no other evidence on the basis of which we could come to the conclusion that that notice was not issued on behalf of the plaintiff. The circumstances of the case entirely justify the finding of the learned Civil Judge that that notice was issued by Ibrahim not because he was a purchaser of the tobacco but as the agent of the plaintiff and on his behalf.
(29) There is one more answer to the contention urged by Mr. Nanjundiah. This suit as we understand it, is a suit for payment of compensation for conversion of the goods belonging to the plaintiff. Section 77 of the Railways Act makes it necessary for a person claiming compensation from the railway administration to issue a notice under the provisions of that section when he claims compensation for loss, destruction or deterioration of the goods entrusted to the administration for consignment. But, the suit brought by the plaintiff is not suit for the recovery of compensation for loss, destruction or deterioration of the tobacco.
The tobacco was not lost, nor was it destroyed. Although there is considerable evidence in the case that the tobacco had become deteriorated or had perished by the time its delivery was offered on 14-9-1948, the cause of action on which the suit was mainly based is, according to Mr. Kotwal, the wrongful detention of the goods by the railway administration during the period preceding 14-9-1948, when its delivery was wrongfully refused. It appears to us that this is how we have to read the plaint in this case, although Mr. Nanjundiah urged before us that it is not stated explicitly in the plaint that there was a conversion of the goods by the railway administration.
It is true that that word has not been employed in the plaint when it was drafted but it has been stated in unmistakable language in the plaint that what the railway administration did after the goods arrived at Jhajha was to wrongfully refuse its delivery to the person who was plainly entitled to it. If those allegations are found in the plaint--as they are found in this case, there can be no difficulty in coming to the conclusion that the suit is for compensation for conversion and not one for compensation for loss, destruction or deterioration of the goods. A suit of that nature need not, it is clear, be preceded by a notice under S. 77 of the Railways Act. If any authority is needed in support of that view, it is to be found in AIR 1927 Lah 471 which follows a previous Full Bench decision decision of that Court in Hill Sawyers and Co. v. Secy. of State, AIR 1921 Lah 1. We must therefore overrule the contention urged on behalf of the defendant that the suit as brought had to be preceded by the issue of a statutory notice under S. 77 of the Railway act.
(30) It was next urged that the suit was barred by limitation. Mr. Nanjundiah has urged before us that the first consignment of the goods having arrived on 22-5-1948, and the second consignment having arrived on 17-6-1948, the suit for non-delivery thereof should have been instituted within a period of one year as prescribed by Art. 31 of the Limitation Act, and that the suit having been brought long after the expiry of that period, even after the deduction of two months relating to the statutory notice issued under S. 80 of the C.P.C. was time-barred.
This argument suffers from more than one infirmity. In the first place Art. 31 can have no application to a case where the suit is for recovery of compensation for conversion. That Article is applicable only to suits against a carrier for non-delivery of the goods entrusted to him. This is therefore not a suit governed by Art. 31 of the Limitation Act, but even if it had any application to the present case it is clear that Mr. Nanjundiah is not right in urging that limitation commenced with respect to 90 bags on 22-5-1948 and with respect to 16 bags on 22-5-1948 and with respect to 16 bags on 17-6-1948. On its own showing the case of the railway administration was that the goods could not have been delivered until clarification was obtained from the Station master at Nipani which was obtained only on 23-8-1948. And, if limitation is computed from that date the suit would undoubtedly be within time.
But we have no doubt that the Article of the Limitation Act applicable to this case is Art. 49 and if that Article is the article to be applied, the period of limitation within which the suit had to be brought was two years, the starting point being the date on which there had been a demand and refusal to deliver the goods to the plaintiff or his agent Ibrahim. Even if we can regard 22-5-1948, as the date on which the demand for the delivery of the goods had been made of which there was a refusal the suit was well within time.
(31) The only question that survives to be decided is as to the measure of damages. The learned Civil Judge was of the view that a sum of Rs. 19,257-13-3 was the value of the tobacco at the time of its consignment. Mr. Nanjundiah is quite right in urging before us that it is not the value of the goods at the time of consignment that represents the compensation payable to the plaintiff but that it is their value when they arrived at the destination that properly represents the compensation which could be awarded. Exhibit 99 is an entry in an account book which the plaintiff has maintained in which a sum of Rs. 17,494-2-0 is stated as the value of the tobacco which was consigned in this case. The tobacco admittedly, weighed 135 mds. and 7 seers. According to Ex. 99 the value of that tobacco was Rs. 138-7-0 per md.
The plaintiff's case was that he got this tobacco from one Faizulla and that the entry he made in his account on 6-5-1948 after receiving the bags of tobacco, shows the price of tobacco as Rs. 17,494-2-0. Plaintiff also examined three witnesses in regard to the ruling rates of tobacco at or about the time of the consignment. P.W. 3 gave evidence that in january 1948 tobacco of the variety which was consigned, viz., 'Jaradi' tobacco which was processed for the purpose of the preparation of 'beedies' was being sold between Rs. 60/-to Rs. 150/-per md. He also gave evidence that good 'jaradi' tobacco, as it was called, was being sold between Rs. 135/-to Rs. 150/-per md. P.W. 4 gave evidence that in 1948 the price of good tobacco was between Rs. 140/-and Rs. 150/-per md. P.W. 5's evidence was that 'jaradi' tobacco was being sold at rates varying from Rs. 70/-to 150/-per md. and good tobacco was worth Rs. 125/-to Rs. 150/-per md. P.W. 5's evidence was that he smoked the 'beedies' prepared out of the tobacco consigned under Ex. 50, and that he came to the conclusion that that tobacco was of the best quality.
Mr. Nanjundiah's criticism of the evidence of these three witnesses was that it was all oral and if their evidence was true it was easy for them to produce their books of account, especially having regard to the fact that they claim to have extensive transactions in tobacco. It cannot be said that this criticism is entirely unfounded. We are really surprised that the plaintiff did not summon any of these witnesses to produce their books of account. If the evidence available had only been that tendered by these witnesses it might have been perhaps different for the plaintiff to sustain his contention that the tobacco consigned by him was worth as much as these witnesses represent it was.
But fortunately for the plaintiff the railway administration examined an excise Inspector who was the only witness examined on behalf of the defendant to give evidence that the value of the tobacco consigned could not have exceeded Rs. 2000/-. D.W. 1 produced Ex. 85, for a permit for the transport of the tobacco without which it could not have been consigned from Nipani to Jhajha, exhibit 85 mentions the value of the tobacco in respect of which the permit was applied for as Rs. 20,000/-.
There is also an entry made in that application that the tobacco had been warehoused on March 11, 1948, and its processing for the purpose for which it was required had been completed on March 20, 1948, which means that the processing had been completed just about a month before the consignments was sent from Nipani to Jhajha. D.W. 1 admitted in his cross-examination that he could not state that the price mentioned in Exhibit 85 was excessive or incorrect. Although at one stage it was suggested on behalf of the railway administration that Exhibit 85 really mentioned the value of the tobacco as Rs. 2,000/-as can be seen from Exhibit 69, in which that figure was mentioned, it is no longer disputed before us that the figure contained in Exhibit 69 must be attributable to an inadvertent error. That it is such a mistake is clear from the fact that the duty recovered with respect to that tobacco was as much as RS. 8,342-4-0. It is inconceivable that tobacco worth Rs. 2,000/-would have been charged with a duty of Rs. 8,342-4-0.
(32) D.W. 1 gave evidence that the duty chargeable with respect to the tobacco varied from 1 anna to 12 annas per pound, which means that the highest rate of duty was chargeable only with respect to tobacco of the best quality. D.W. I admitted that the duty collected in the case of the plaintiff's tobacco was at 12 annas per pound, the implication of which would undoubtedly be that the plaintiff's tobacco, was of the best quality as spoken to by P. Ws. 4, 3 and 5.
Although as urged by Mr. Nanjundiah Exhibit. 99, the account book produced by the plaintiff was produced at a late stage and after the completion of his cross-examination and therefore it appears to us that that the entry in that account book is not entitled to any very great weight it is seen that the fact that the plaintiff has asked Ibrahim under Exhibit 88 to credit his account with a sum of Rs. 18,794-2-0 as the value of the tobacco is sufficiently strong material on the basis of which we can come to the conclusion that the sum of Rs. 2,000/-mentioned in Exhibit 69 could not but be regarded as clerical mistake. When Exhibit 88 was sent to Ibrahim the plaintiff could not have foreseen the conversion of the goods by the railway administration in May and June 1948 and there was thus no motive for the plaintiff to mention an inflated figure as the value of the tobacco in Exhibit 88.
(33) But it appears to us that we would not be justified in awarding to the plaintiff compensation amounting to Rs. 17,494-2-0 merely on the ground that that was the amount specified in Exhibit 88. Although the evidence given by the plaintiff's witnesses is that the best quality of 'jaradi' tobacco was being sold at Rs. 150/-per maund, it seems to us that the evidence given by P.W. 5 that good 'jaradi' tobacco was being by P.W. 5 that good 'jaradi' tobacco was being sold at Rs. 125/-to Rs. 150/-a maund can be regarded as acceptable. The proper finding that we should record in this case after a consideration of all the materials on record should be that the tobacco which was consigned by the plaintiff from Nipani was worth Rs. 125/-a maund at the time of its consignment.
It is true as Mr. Nanjundiah has urged that the compensation that we should award to the plaintiff is not the value of the tobacco at the time of its consignment but its value at the destination station. There is no evidence in the case that the rates of tobacco by the time the consignment reached Jhajha had come down or that tobacco at Jhajha was being sold at rates less than those at which they were being sold at Nipani. The railway administration produced no evidence that it was so. The compensation to which the plaintiff would therefore be entitled would be compensation calculated at Rs. 125/-per maund. The consignment, as we have mentioned, weighed 135 maunds and 7 seers, and so calculated the plaintiff would be entitled to a sum of Rs. 16,896-14-0 as damages from the defendant.
(34) We, therefore, modify the decree of the Court below and make a decree in favour of the plaintiff for a sum of Rs. 16,896-14-0. This amount shall carry current interest at six per cent per annum from the date of the decree of the Court below. The plaintiff will be entitled to recover his costs to the extent of his success from the railway administration, both in this court and in the court below. The railway administration will bear its own costs. Except for the modification which we have made in the decree of the court below, the appeal should, in our opinion be otherwise dismissed.