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Union of India (Uoi) and anr. Vs. Madan Mohan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 98 of 1971
Judge
Reported inAIR1981Ori9; 50(1980)CLT29
ActsEvidence Act, 1872 - Sections 101 to 104
AppellantUnion of India (Uoi) and anr.
RespondentMadan Mohan and anr.
Appellant AdvocateB. Pal, Adv.
Respondent AdvocateH.D. Sen and ;M.K. De, Advs.
DispositionAppeal dismissed
Cases ReferredMahabir Prasad Bajranglal v. Union of India
Excerpt:
.....main contention is that the plaintiff has failed to establish that he actually suffered damage, to the extent claimed in the plaint. the evidence on the side of the plaintiff clearly establishes that the potato seeds were purchased at rs. 24 per basket and that the same were in good condition at the time of booking......paise on account of damages for deterioration of a consignment of 277 baskets and 20 bags of potato seeds.2. the consignment was booked frompatna city under parcel way bill no. 293397 dated 21-11-62 (ext. a). it was alleged that in order to get the consignmentwithin three days, the consignor paid a higher rate of freight for transit of the goods by parcel van. the delivery was to be given at cuttack station by 24-11-62. but the van carrying the consignment arrived at cuttack railway station on 15-12-62. the plaintiff took open and assessment delivery of the consignment through his representative laxminarayan singh (p. w. 4) on the same date. the station master granted a damage certificate (ext. 6) assessing the damages at 40% to 55% of the goods. the total quantity of potato seeds.....
Judgment:

P.K. Mohanti, J.

1. This appeal, by defendants 1 and 2, arises out of a suit for recovery of Rs. 7,743.53 paise on account of damages for deterioration of a consignment of 277 baskets and 20 bags of potato seeds.

2. The consignment was booked fromPatna City under Parcel Way Bill No. 293397 dated 21-11-62 (Ext. A). It was alleged that in order to get the consignmentwithin three days, the consignor paid a higher rate of freight for transit of the goods by parcel van. The delivery was to be given at Cuttack Station by 24-11-62. But the van carrying the consignment arrived at Cuttack Railway Station on 15-12-62. The plaintiff took open and assessment delivery of the consignment through his representative Laxminarayan Singh (P. W. 4) on the same date. The Station Master granted a Damage Certificate (Ext. 6) assessing the damages at 40% to 55% of the goods. The total quantity of potato seeds which were completely damaged came to 143 1/2 baskets. The plaintiff took delivery of 163 1/2 baskets of potato seeds which were partly damaged and sold the same for Rs. 115 by auction. After service of notices, the plaintiff filed the suit claiming Rs. 3,444 as the price of 143 1/2 baskets of potato seeds which were entirely rotten. Rs. 3,924 as the price of 163 1/2 baskets of potato seeds which were partly damaged, Rs. 233.85 paise as the proportionate freight, Rs. 35 as costs of sending notices by registered post, Rs. 73.68 paise as interest; thus in all, Rs. 7628 out of which a sum of Rs. 115 was deducted as the sale proceeds in auction.

3. The plaintiffs contention was that the wagon carrying the consignment was diverted in a wrong route and was detained for a long time at other station as a result of which the goods were damaged.

4. The Union of India represented by the General Managers of the South Eastern Railway and the Eastern Railway resisted the suit on the grounds that the plaintiff was not the owner of the consignment, that there was no misconduct or negligence on the part of the Railway Administration and that the plaintiff had not sustained any loss, as alleged.

5. The trial court, on a consideration of the evidence led by both the parties, came to hold: (1) that the plaintiff had satisfactorily proved his ownership over the consignment; and (2) that the deterioration of the goods was due to the negligence of the Railway Administration in diverting the wagon in a wrong route. It disallowed the claim of compensation of Rs. 3,924 for 163 1/2 baskets on the ground that the plaintiff had taken delivery of the same from the Railway Station without any objection and he had never brought to the notice of the Railway Administration that the potato seeds were unfit for germination or for humanconsumption. It decreed the claim of Rs. 3,444 for the price of 143 1/2 baskets of potato seeds and Es. 233.85 paise as proportionate railway freight, thus in all, Rs. 3,677.85 paise with interest at the rate of 6 per cent per annum from 21-11-62 till realisation and Rs. 35 as costs of registered notice etc. Aggrieved by this decree, the defendants have come up in appeal.

6. In course of hearing, Mr. Pal, the learned counsel appearing for the appellants did not challenge the findings of the trial court about the plaintiff's ownership over the suit consignment and the negligence of the Railway Administration resulting in deterioration of the goods. His main contention is that the plaintiff has failed to establish that he actually suffered damage, to the extent claimed in the plaint. According to him, a Damage Certificate issued by the Railway authorities cannot form the basis of a claim for compensation.

7. The legal position is that where a consignment of goods despatched by rail is damaged and a suit is brought against the Railway for damages, the onus of proving the value of the goods booked, the actual loss and the extent of damages is on the plaintiff. A Damage Certificate states only the fact that the damage had, in fact, been caused to the goods, but it does not amount to an acknowledgment of fact that the damage was caused by negligence or misconduct on the part of the Railway Administration. This view was accepted by a Division Bench of this Court in the case of Manchand Mulchand v. Union of India, (19631 29 Cut LT 193 which was followed in a subsequent decision in the case of Mahabir Prasad Bajranglal v. Union of India, (1966) 32 Cut LT 855.

8. In the present case, it is not disputed that the consignment when it arrived at the destination was found in a damaged condition. The Railway authorities have themselves assessed the damage in respect of 143 1/2 baskets of potato seeds. This fact is also not disputed. In view of the fact that the Railway authorities have found that the condition of goods had deteriorated and have estimated the extent of that deterioration, it is now not open to them to say that the plaintiff is not entitled to damages.

9. The plaintiff, in order to prove the extent of damages, relied not only on the Damage Certificate (Ext. 6), but also on some oral evidence. The material portion of the Damage Certificate (Ext. 6) granted by the Station Master reads as follows:

'Examined 277 baskets and 20 bags seed potatoes in association with O/C RPF & DCI, CTC as ordered by DCS, KUR in reply to my D/E No. 295 of 15-12-62 and found gunny covering on the baskets and Cg. of the bags are in wet state with juice of the inside contents. The baskets and the bags opened and found contents potato seeds partly damaged and partly decomposed and water oozing out and the sprouts are in partly decomposed state. The damages are jointly assessed as under: (1) 83 baskets-- 40%, (2) 71 baskets-- 45%, (3) 87 baskets-- 50% and (4) 36 baskets at 55%, (5) 20 bags R/F 900 K.G. at 50%.'

There was a declaration at the foot of the Certificate to the effect 'Open and assessment delivery granted without prejudice to the Railway rights to repudiate claim under law.' Thus, the Damage Certificate cannot be construed as an admission or acknowledgment of liability on the part of the Railway Administration. In fact, they denied their liability and resisted the plaintiff's claim. But once the liability of the Railway is established, the Court can look into the Damage Certificate for the purpose of finding out the measure of damage. When a responsible officer of the Railway has granted the Certificate, that must be presumed to have been done on proper in-section,

10. The evidence of P. W. 4 Laxminarayan Singh who had taken delivery of the consignment would show that the assessment of damages was made in his presence and he fully agreed with the assessment. He stated that the damage was assessed by separating the goods by different lots. The percentage of damages of different lots as given by him tallies with that mentioned in the Damage Certificate. According to him, the total quantity of entirely rotten potato-seeds came to 143| baskets and the same were thrown on the land of one Nilamani Ghosh. This evidence went unchallenged, Nothing substantial has been brought out in his cross-examination as to cast any doubt about his veracity. His evidence about the extent of damage finds corroboration from the entries made in the Perishable Delivery Book maintained at the Cuttack Railway Station--vide Ext. 11. He has signed the relevant entry in Ext. 11 and his signature has been proved and marked as Ext. 11/A. The defendants have not adduced any evidence to show that the potato seeds were fit for germination or human consumption. The evidence on the side of the plaintiff clearly establishes that the potato seeds were purchased at Rs. 24 per basket and that the same were in good condition at the time of booking.

11. It is pertinent to mention in this connexion that the claim of Rs. 3,444 towards the price of 143 1/2 baskets of potato seeds and Rs. 233.85 paise towards the proportionate railway freight was not disputed by the defendants before the learned Trial Judge. In para 11 of the judgment, he has observed: 'With regard to the first claim I not only feel myself reluctant to give any negative finding, I also find the defence to have no such objection'. He has further observed that the entire attack of the defence was that the Railway Administration was not liable for the claim of compensation of Rs. 3,957 towards the price of 163 1/2 baskets of potato seeds and the cost of unloading etc.

12. On a careful consideration of the oral and documentary evidence on the record we agree with the learned Trial Judge that the plaintiff sustained loss of 143 1/2 baskets of potato seeds on account of the negligence on the part of the Railway Administration and he is entitled to compensation, as claimed.

13. In the premises aforesaid, we find no merit in this appeal and it is accordingly dismissed with costs, the decision of the trial Court being affirmed.

Das, J.

14. I agree.


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