(1) The plaintiff who is the appellant here, instituted a suit for compensation for non-delivery of 154 baskets of betel leaves which he had consigned from Nellore a few to be delivered at Manmad and others at Nagpur. It is alleged inter alia that items 1 to 9 consisted of 277 baskets out of which 201 baskets were delivered to the consignee at the destination but 76 baskets were not delivered at all. Similarly items 10 to 13 which consisted of 78 baskets were sought to be delivered to the consignee in a damaged condition but he refused to receive. In normal course these baskets ought to have been delivered within three days from the date of the consignment but attempt was made to deliver after the lapse of six days, which had resulted in perishing of the betel leaves. On this basis the plaintiff claimed damages in all for 154 baskets at a certain rate.
(2) One of the defences was that the consignor has no locus standi to institute the suit. It was also pleaded that as the consignment was booked at the reduced rates. i. e. owner's risk rate, the plaintiff must prove that the Railway or its employee was guilty of negligence which resulted in loss to the plaintiff.
(3) The trail Court after recording the evidence dismissed the plaintiff's suit on the plea that the plaintiff who was merely a consignor could not have instituted the suit for damages, as he had sent the railway receipt in the name of the consignee. The trail court found that 76 baskets in reference of items 1 to 9 were not delivered and further found that the rate at which the plaintiff had claimed the damages is the adequate compensation which can be given in the case. It was however found that the plaintiff has failed to prove the negligence in respect of 78 baskets which reached the destination in a damaged condition.
(4) Dissatisfied with that judgment the plaintiff carried the matter in appeal. He was successful to the extent of getting a verdict from the Court of appeal that the railway is liable to pay compensation at the same rate even in regard to 78 baskets which had reached the destination in a damaged condition. The lower appellate Court however dismissed the plaintiffs suit holding that the consignor in the present case cannot institute the suit. The lower appellate Court rejected the contention of the defendant that the consignment was booked at the owner's risk as it thought that no evidence in support of that was filed by the defendant. The plaintiff consequently has brought this second appeal.
(5) Two contentions have to be considered in this case. The first contention is that the consignor in the circumstances of the case has locus standi to institute the suit and that the Court's below have erroneously held that he is not competent to lay the suit, the second contention being whether the plaintiff has discharged the burden of proving the negligence under section 74(c) of the Indian Railways Act.
(6) Now in regard to the first contention the Courts below relied upon M. S. M. Rly. Co. v. Rangaswami Chetty, AIR 1924 Mad 517, and dismissed the plaintiff's suit holding that the consignee alone can sue for loss caused by the non-delivery of the baskets and not the consignor. In order to appreciate the contention it is necessary to look into a few Sections of the Contract Act. It is not in dispute that according to Section 72 of the Indian Railways Act, the relationship of the consignor and the railway is that of the bailor and bailee. If that is so, section 148 defines the bailment in the following terms :-
' A 'bailment' is the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. the person delivering the goods is called the 'bailor'.
The person to whom they are delivered is called the 'bailee'.'
Section 151 which is referred to in section 72 of the Indian Railways Act enjoins upon the bailee to take as much care of the goods bailed to him as a man of ordinary prudence under similar circumstances would take of his own goods of the same bulk, quality and value as the goods bailed.
The liability of carriers, that is railway, as stated earlier, is governed by section 72 of the Indian Railways Act. It provides that for an injury to the goods delivered to it to be carried by the Railway is subject to the provisions referred to in Sections 151, 152 and 161 of the Contract Act. Now section 161 states that if by the default of the bailee the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. Untrammelled by any decision under the Act and looked at only from the provisions made applicable under section 72 of the Indian Railways Act, there can be little doubt that the Railway accepted the consignment as a bailee only from the consignor, who, according to the above definition, is a bailor. The railway therefore under Section 161 of the contract Act is liable for any loss occurred if the loss is due to the negligence of the Railway. The consignor therefore is the person who can institute the suit for realising the losses which he has suffered on account of the negligence on the part of the Railway. This statutory obligation on the part of the Railway vis-a-vis the bailor would be discharged only when losses are paid to the bailor either through the Court or outside the court, and wither to the bailor or to his representative. On principle as well as authority, it can, therefore, be stated that the bailor can certainly sue for any loss, destruction, or deterioration of goods, the bailee.
There are, however, some cases in which the consignee may also sue. I will deal with those cases presently. Nonetheless the contractual obligation which the Railway had incurred by accepting the bailment can be discharged only in reference to the bailor. It must be realised that in a contract of bailment of this type, consignee is not the party to the contract. He cannot therefore institute any suit on the ground of breach of the contract or negligence committed by the Railway in carrying out the terms of the contract. If at all he can sue, he can sue on the ground that he holds title in the goods consigned to him. That is very different than saying that the consignor who is the real bailor cannot sue at all. As far as the bailee is concerned, his responsibility under Section 161 contract Act to meet losses is to the bailor.
(7) The lower courts no doubt relies upon AIR 1924 Mad 517. It is not however, clear from the judgment as to what were the facts of that case. What appears from a reading of the judgment is only this that on a concession made in the argument so far as the goods bought from Kaveri Chetti were concerned, it was held that the plaintiffs could not lay any claim for damages. In regard to the other goods it was found that they were delivered to one Muniswami Chetty and the title in those goods had had already passed to him. The consignment of goods was done by the plaintiffs, but it was found that some of the goods never belonged to the plaintiffs, and it was also found that the plaintiffs when consigning the goods had acted only as agent of Muniswami Chetty. In these circumstances Philips, J. held that the consignee alone can sue for loss caused for non-delivery of goods after the goods had been delivered to the Railway Company for consignment.
I do not think that the said judgment is an authority for the proposition that the consignor in no case can institute the suit or in all cases where the goods are consigned it is the consignee who alone can sue for the loss.
The learned Judge for the proposition he laid down in that case relied upon Daws. v. Peck (1799) 8 T. T. 330 : Esp. 12 : 4 R. R. 675 (T. R. : Term Reports). A reading of that judgment would disclose that that case does not decide any thing like the one held by the Courts below. the facts of that case were that the goods were directed to be delivered to one Mr. Odey. It appears that on the direction of Mr. Odey the consignment was sent to him by the consignor through a particular carrier. The goods were either lost or damaged in the transit. It was contended in that case that the consignor can sue even in a case that the consignor can sue even in a case where the title in the goods had passed to the consignee and that the consignee, who had instituted the suit, had no locus standi to institute the suit. It was found that when the title in the goods had passed to him and when the consignor acted as his agent in handing over the goods to the particular carrier in pursuance of the direction given to him by the consignee, the consignee can institute the suit. It is obvious that in the circumstances in which the delivery was made to the common carrier it was the vendee who stood to the risk and the damnum et injuria were to him and not the vendor, the plaintiff in that case. The opinion of the Lord Kenyon Ch. J., is illuminating in this behalf. the two other learned Judges also reached the same conclusion. That case therefore is not an authority to hold that once the consignment is made it is the consignee alone who can institute the suit. When the consignee has locus standi to institute the suit depends primarily upon the facts and circumstances of each case. In cases where the consignor has not parted with the title in goods, he, being the bailor, can certainly sue for damages the Railway Company which is the sue for damages the Railway company which is the bailee. In cases however where the title in the goods has passed to the consignee, the consignee can also bring a suit for damages against the Railway. In cases however where either the consignor or the consignee can claim and the person claiming receives the damages form the Railway company either outside the court or through the court, any payment thus made in the discharge of the claim by the Railway Company would certainly be a valid discharge as against the person who had not put his claim, and the rights of the consignor and the consignee will be settled between them. the Railway company, in any case is liable to pay the compensation because of its negligence. In this case it is not in dispute that although the R. R. stand in the name of the consignee, but it has not been endorsed in his favour conveying the title in the goods.
When it is not in doubt that the title in the baskets of betel leaves consigned from Nellore was with the consignor, this case ought not to have presented any difficulty for reaching the conclusion that it is the consignor who alone can institute the present suit. the consignee who has not had any title in the goods could not have sued in the present case. Merely because the R. R. stands in the name of the consignee without the title in goods passing to him he could not be entitled to institute the suit.
(8) I am fortified in my conclusion by the following decisions;
In G. I. P. Rly. v. Radhey Mal Manni Lal, AIR 1925 All 656 Mukherji, J. observed : ' the lower court found that the plaintiffs consigned not only their own goods, but some goods which their customer purchased for himself and has asked them to consign with the plaintiffs own goods. An argument was based on this fact, viz., the plaintiffs were not the owners of the entire goods and that, therefore, they could not maintain the suit. To this argument the clear answer was that as between the Railway Company, on the one hand, and the plaintiffs, the consignors, on the other, the Railway Company could not dispute the title of the consignors to the goods.'
In Chhangamal v. Dominion of India, : AIR1957Bom276 a Bench of the Bombay High court said :
' The right of action to recover compensation for loss or damage to the goods ordinary vests in the consignor. Where the goods lost or damaged in transit are the subject-matter of a contract of sale, the owner of the goods may in the absence of a contract to the contrary sue the railway administration. therefore, a consignee who is in possession of a railway receipt duly endorsed by the consignor may maintain an action for compensation for loss of the goods covered thereby, but he can do so not because he is the consignee but because he is the owner of the goods. A consignor may sue for compensation for loss relying upon the breach of contract of consignment. An owner of goods covered by a railway receipt may sue for compensation relying upon his title and the loss of goods by misconduct of the railway administration. But a bare consignee, who is not a party to the contract of consignment and who is not the owner of the goods, cannot maintain a suit for compensation for loss or damage to the goods. He has no cause of action ex contractu nor ex delicto.'
(9) I am thus satisfied that as the title in the goods had not passed to the consignee and because the plaintiff is the bailor, the Railway, he being responsible to him for the losses and as the plaintiff continued to be the owner of the baskets, it is he who could institute the suit. the lower courts therefore have erred in holding that the plaintiff has no locus standi to institute the suit. In this case the plaintiff has produced a letter of authority from the consignee which shows that the consignee which shows that the consignee has no objection for the plaintiff instituting the suit. Although that letter is there, but in the view which I have taken I find no difficulty in rejecting the contention that the plaintiff was not competent to institute the suit.
(10) Now in regard to the next contention the lower appellate court has found that the railway was negligent in handing the consignment and it is only due to their negligence that 76 baskets were lost and 78 baskets were damaged.
It was, however, contended by Mr. Anjaneyulu, the learned counsel for the respondent that as the consignment was booked at the reduced rate and at the owner's risk, it was incumbent upon the plaintiff to prove negligence affirmatively under S. 74-C of the Railways Act. The lower appellate court, however, found that the Railway has not produced document to show that the present case falls within the purview of S. 74-C of the Act. It is not in dispute that no such evidence was adduced by the Railway. What is now urged is that under section 74C(2) in case there are two rates fixed for consignment, it has to be presumed that the consignment was booked at the owner's risk rate. Assuming that it is so, the only effect of it is that the onus would lie upon the plaintiff to prove that the non-delivery or the damaged delivery was effected because of the negligence of the Railway. The initial burden may thus lie upon the plaintiff. Nevertheless, the Railway cannot be absolved from the responsibility of explaining to the court how it handled the consignment during the transit. Admittedly, the Railway has not explained through proper evidence . It cannot be urged in this case that the plaintiff has not produced any evidence in this behalf. The issue in that behalf framed by the trail court has put the burden upon the plaintiff. it cannot therefore, be said that the evidence on record was not assessed keeping in view the correct burden of proof. It was put on the plaintiff and it was only from that point of view that the evidence adduced by the parties was looked at; and, when the lower appellate court has no facts found the Railway negligent in handling the goods in transit. I see no reason to differ with that conclusion of fact that is binding upon me.
(11) As no other argument was advanced, I must conclude that the plaintiff was competent to institute the present suit, and he had suffered loss on account of the negligence of the Railway, he is entitled to get by way of compensation the amount claimed in the suit. The plaintiff will, therefore, get a degree for the amount which he has claimed with costs throughout.
(12) the appeal is thus allowed. No. leave.
BI / R. G. D.
(13) Appeal allowed.