H.L. Anand, J.
(1) This is a suit for the recovery of Rs. 34,326.00 and the principal question that it raises is as to whether the derailment of a railway train could constitute in law an act of God or of the enemy agent so as to absolve the Railway of liability to compensate the plaintiff for the consequential loss merely by virtue of the fact that the cause of the accident was not known and remained inexplicable. The suit has been filed in the following circumstances.
(2) According to the allegation in the plaint, the D.C.M. Chemical Works, a unit of the plaintiff, a public company incorporated under the Indian Companies Act, had purchased 1044 tins loose tank load of groundgnut oil unrefined from M/s. Dinesh Kumar and Company through the commission agents M/s. Shah Jasraj Moti Chand and Sons, the contents of the said load weighting 16704 Kgs. had been consigned by the said seller to self under Invoice No. 99, Railway Receipt No. 34924 of July 14, 1965 ex-Dhoraji Factory Siding to Delhi Serai Rohilla, the Railway Receipt had been endorsed in favor of the plaintiff's unit mentioned above against the payment of the price of the oil and all rights under the Railway Receipt were assigned to the said unit of the plaintiff company, the tank wagon was transhiped enroute into another tank wagon, when the said wagon arrived at the destination, the representative of the plaintiff's aforesaid unit requested for delivery after weighment and the weighment bridge being out of order, there was delay in the delivery of the consignment and delivery was eventually effected after dip-measurement when 151/2' oil was found in the wagon, and the contents were eventually weighed at the said unit's works and found to contain 3304 Kgs. It was further alleged that the Railway Administration charged a sum of Rs. 100.00 on account of demurrage. The plaintiff company contends that the shortage was due to 'the negligence or misconduct or want of reasonable foresight and care on the part of the Railway Administration' and claims from the Union a sum of Rs. 34,326.00, being Rs. 33,205.60 on account of the value of the goods which was short delivered, Rs. 1020.40 being refund of railway freight paid on the quantity not delivered and Rs. 100.00 being the demurrage charged by the Railway on account of the delay in taking delivery. The plaintiff claims to have sent notices to the appropriate authorities under Section 78(B) of the Indian Railway Act and under Section 80 of the Code of Civil Procedure. The plaint is signed and verified on behalf of the plaintiff by Shri G. C. Bhandari, who is described as the principal officer and general attorney of the plaintiff and it is alleged in the plaint that Shri Bhandari was principal officer and general attorney duly empowered to file suits for and on behalf of the plaintiff and to sign and verify the plaint for and on its behalf.
(3) The suit of the plaintiff was resisted on behalf of the Union of India and in the course of its written statement, it was denied that Shri Bhandari was the principal officer and general attorney of the plaintiff and empowered to institute suits and to sign and verify plaints on its behalf. It was, however not denied that loose groundnut oil unrefined was consigned by M/s. Dinesh Kumar & Co. to self under remarks 'Loading & Unloading by owner loaded directly from senders private godown. Hence not supervised by Railway Staff. Destination to weigh before delivery.' It was, however, not admitted that the rights under the Railway Receipt were assigned to the plaintiff and that too for any valuable consideration and it was alleged that the plaintiff had no locus standi to file the suit. It was, however, not denied that the wagon No. 2236 containing loose groundnut oil aforesaid was part of the goods train which was derailed near Muliroad Railway Station on the Western Railway. Which, it was alleged, had been caused by an 'act of God or public enemies' and not on account of any negligence, misconduct on the part of the Railway Administration or its servants, and that the above wagon was one of the wagon derailed resulting in the leakage of some oil and immediately this wagon was rerailed and sent to Surendranagar Railway Station where transhipment of the contents took place. The charge of demurrage was also justified on the ground that the plaintiff unnecessarily and improperly insisted on weighment of the oil before delivery was taken. The shortage was not denied but the allegation that the shortage was due to negligence and misconduct or want of reasonable foresight and care on the part of the Railway Administration or its employees was denied and it was alleged that no particulars of negligence or misconduct of want of reasonable foresight and care have been given in the plaint and it was, thereforee, alleged that the suit was not maintainable. It was further alleged that the loss, if any, was due to derailment of the wagon carrying the oil which was caused by an act of God or public enemies and not by negligence, misconduct of Railway Administration or its servants. The receipt of notice under Section 78-B of the Indian Railway Act was admitted but its validity was denied. The quantum and value of the loss was also not admitted and it was stated that notice under Section 80 of the Code of Civil Procedure did not mention any negligence nor gave any particulars and was, thereforee, invalid. It was further stated that notice had been given by the plaintiff and another person, namely, M/s. Dinesh Kumar & Co. Oil Mills and the suit by the plaintiff alone was not maintainable.
(4) M/S. Dinesh Kumar & Co. who were originally imp leaded as defendant No. 2 in the suit, in the course of the written statement denied that they had sold the oil in question to the plaintiff or that they had endorsed the Railway Receipt in their favor and had assigned all or any of the rights in the said Railway Receipt in favor of the plaintiff. It was further alleged that the said defendant No. 2 had supplied the oil in question and entered into a contract of sale of groundnut oil with M/s. Jasraj Moti Chand & Sons and had duly received the price from the said buyer and the Railway Receipt, by which the aforesaid oil had been loaded, consigned to Delhi Serai Rohilla from factory Siding of Dhoraji on the instruction of the said buyer, had been handed over to the said buyer and that the plaintiff, thereforee, had no cause of action against the said defendant. It was further alleged that the contract had been entered into at Rajkot and the Court at Delhi had no jurisdiction to entertain the suit.
(5) In its replication to the written statement filed on behalf of defendant No. 1, the plaintiff by and large reiterated the allegations made in the plaint denying that the derailment of the wagon was an act of God and/or public enemies and it was asserted that the derallment, if it actually took place, was the result of negligence, misconduct or lack of proper precaution on the part of the Railway Administration or its servants and that the Railway Administration was responsible for the loss, destruction, damage, deterioration or non-delivery in transit of the goods delivered to the Railway Administration to be carried on by the Railway under Section 73 of the Indian Railway Act and it was for the Railway Administration to show that the loss was from the excepted causes under the aforesaid provision. It was further alleged that the consignment during transit was in the sole custody of the Railway Administration and the Railway Administration alone, was, thereforee, in the know as to how the consignment was dealt with during transit and the question, thereforee, of the supply by the plaintiff of any particulars of negligence, misconduce or lack of proper precaution did not arise.
(6) By an order made in Original Misc. No. 959/67, on Sept. 6, 1967, the name of the said defendant No. 2 was ordered to be struck off the array of defendants and on the pleadings of the parties, following issues were framed :
1. Whether this suit has been instituted and the plaint signed and verified by a duly authorised person? O. P. on the plaintiff.
2.Whether the plaintiff has any locus standi to file the present suit O. P. on the plaintiff.
3.Whether the notices, under section 78-B of the Indian Railways Act, 1890 and section 80 of Civil Procedure Code, were not valid O. P. on the defendant.
4.Whether the shortage in the consignment of ground-nut oil was not due to any negligence or want of due care on the part of the defendant but was the result of an act of God or an act of public enemy and, thereforee, the defendant is not liable for the said loss? O.P. on the defendant.
5.To what damages, if any, the plaintiff is entitled? O.P. on the plaintiff.
(7) In support of the various contentions, the parties led both oral and documentary evidence.
(8) The plaintiff produced Public Witness 1 Shri D. R. Thadani General Attorney of the plaintiff company; Public Witness 2 Shri Darshan Kumar, clerk of the Punjab National Bank; Public Witness 3 Shri S. Krishnan, an employee of the D.C.M. Chemical works unit of the plaintiff; Public Witness 4 Shri Mahesh Chand, an accountant of the unit; Public Witness 5 Shri Mool Chand, oil godown clerk of the unit; Public Witness 6 Shri I. P. Arya, an employee in the Oil Purchase Section of the plaintiff and Public Witness 7 Shri Laxmi Narain, a representative of the plaintiff stationed at Rajkot. The plaintiff also produced a number of documents.
(9) The Union of India produced DW1 Shri Himat Lal H. Joshi, train examiner; WD2 Shri J. L. Chaudhry, Assistant Permanent Way Inspector; DW3 Malwant Rai Vaishnav, goods clerk; DW4 K. M. Bhatt, a Guard; DW5 Shri Abdul Noor Bhai, railway engine driver; DW6 Shri Hem Chand, a fireman; DW7 Shri Shanti Lal, station master; DW8 Shri S. K. Kapur, fitter in charge; DW9 Shri S. H. R. Ramdas Iyer, Mechanical Engineer Railways; DW10 Shri Ramji Sawa, pointsman; DW11 Shri Sonda Raja; Gangmate; DW12 Shri V. S. Fadke, Loco Foreman; DW13 Shri G. T. Dave, Transportation Inspector; DW14 Shri C. H. Patel, Assistant Station Master; DW15 Shri Babu Lal Verma, Head Train Examiner; DW16 Shri B. B. Gohil, Train Examiner; and DW17 Shri B. O. Dave, Draftsman. The Union of India did not produce any documentary evidence.
(10) I have heard learned counsel for the parties and have gone through the record with their assistance. My conclusions on the various issues are as follows.
Issue NO. 1
(11) The question for consideration under this issue is whether the suit has been instituted and the plaint signed and verified by a duly authorised person.
(12) The plaint purports to have been signed and verified by one Shri G. C. Bhandari, who has been described as 'principal officer and general attorney of the plaintiff company.' The power of attorney in favor of the counsel, who had presented the plaint also purports to have been signed on behalf of the plaintiff company by the said attorney claiming to be the principal officer and general attorney of the plaintiff company.
(13) In support of this issue, the plaintiff has examined Public Witness 1 Shri D. R. Thadani, general attorney of the plaintiff company, who, in the course of his statement, claimed that the plaintiff company had executed the power of attorney in favor of Gian Chand Bhandari on April 10, 1961 and that the power of attorney was a registered document and was signed on behalf of the company by Bhiku Ram Jain and Jagan Nath, two of its directors. The witness brought the original power of attorney with him and produced a true copy of the power of attorney which was marked as Ex. P1. The witness further stated that by a resolution passed on March 16, 1961, the Board of Directors of the Company had authorised the aforesaid two signatories to execute a power of attorney in favor of G. C. Bhandari and the witness produced in Court the original minutes book and stated that the resolution had been signed by Lala Bharat Ram, chairman of the Board and a copy of the resolution was placed on the record and marked as Ex. P2. The witness identified signatures of Lala Bharat Ram, below the resolution in the minutes book. In cross-examination, the witness stated that both the signatories were in Delhi. On behalf of the plaintiff Company, reliance was placed on the aforesaid statement of D. R. Thadani, Ex. P1 a copy of the power of attorney, Ex. P2 a copy of the resolution of the Board of Directors authorising the two signatories to execute a power of attorney in favor of G. C. Bhandari and Ex. P3 certified copy of the Articles of Association of the plaintiff Company which was tendered in evidence.
(14) According to Article 68 of the Articles of the plaintiff, subject to the provisions of the Companies Act, the Board of Directors was entitled to exercise all such powers and to do all such acts and things as the Company authorised to exercise and do in furtherance of its object except such powers which are required by the Act or the Memorandum or the Articles of Association of the Company to be exercised or done by the Company in general meeting. No provision of the Companies Act or of any other provision of the Articles of Association was pointed out which may oblige the Board to exercise the power of authorising any Director to sign a power of attorney by a resolution of the general meeting or which may otherwise deviate from the powers of the Board conferred by Article 68. Article 70-C of the Article further provided for the delegation of powers y the Board to any director or directors, managing directors, managing agents, secretaries, treasures, manager or secretary of the company either by name or by virtue of the office or otherwise or any other person or persons either singly or jointly to exercise or perform all or any of the powers including the power to sub-delegate authorities and duties conferred on or imposed on the directors by law or Articles of Association subject to such restrictions or conditions generally or in specific cases as the Board may think proper. A reference to Ex. P2 indicate that the Board in its meeting held on March 16, 1961 resolved that the general power be executed in favor of G.C. Bhandari to institute and defend legal proceedings on behalf of the Company and for this purpose two of the directors of the Company, Shri Bhiku Ram Jain and Shri Jagan Nath were authorised to execute, sign and register the power of attorney in the name and on behalf of the Company. A reference to Ex.P1, a copy of the power of attorney, further shows that the aforesaid two directors had duly executed a power of attorney in favor of G.C. Bhandari authorising him, inter alia, to institute and defend proceedings in civil Courts on behalf of the Company and to sign and verify and file in all courts, tribunal, authority and office plaints, complaints, written statement, petitions, affidavit etc. to engage and appoint advocates and to appear in or before any of the Courts to represent the Company and make statements on oath on its behalf. This power of attorney was registered as document No. 974 in additional book 4, volume 94 at pages 107 to 110 on April 21, 1961.
(15) It is, thus, established that the management of the Company vested in the Board in terms of the Articles of Association of the Company, that the Board was competent to delegate its authority in favor of any director or any other person, that the Board had resolved that Shri G. C. Bhandari be authorised to institute suits and to take all steps in relation thereto and that pursuant to the aforesaid resolution a power of attorney authorising Shir Bhandari to institute suits, sign and verify pleadings and to take all steps in relation to such proceedings was executed on behalf of the Company by two directors who had been authorised for the purpose. The learned counsel for the defendant was not able to show as to how in the face of the aforesaid evidence, it could be said that the suit had not been properly instituted and that the plaint had not been validly signed and verified on behalf of the plaintiff company.
(16) Issue No. 1 is) thereforee, found in favor of the plaintiff Company and I hold that the suit had been instituted and the plaint signed and verified by a duly authorised person. Issue NO. 2.
(17) The question that requires consideration under this issue is whether the plaintiff has any locus standi to file the suit.
(18) The plaintiff claims locus standi to file the suit on the allegation that D.C.M. Chemical Works, a unit of the plaintiff had purchased groundnut oil in question from Dinesh Kumar and Co., who were originally imp leaded as defendant No. 2, through their commission agent M/s. Shah Jasraj Moti Chand & Sons and that the tins containing groundnut oil were consigned by defendant No. 2 to self under Railway Receipt for transportation to Delhi Sarai Rohilla and that the said Railway Receipt was endorsed in favor of the plaintiff's afore said unit D.C.M. Chemical Works against payment of the price of the said oil and, thereforee, all rights in the said Receipt were assigned to the plaintiff's aforesaid unit. This allegation was denied by the Union and it was alleged that the plaintiff had no locus standi to file the present suit and that were endorsement on the Receipt did not give the plaintiff any right to do so. Defendant No. 2, which was then a party to the proceedings, however denied that the defendant had ever sold any oil to the plaintiff or had endorsed the Railway Receipt in favor of the plaintiff and had denied that there was any privity of contract between the plaintiff and the said defendant. The said defendant, however, admitted that the contents of 1044 tins containing the groundnut oil were consigned by defendant No. 2 to self under the Railway Receipt in question for transportation to Delhi Sarai Rohilla. The said defendant further explained that the said defendant had entered into a contract of sale through their brokers with M/s. Shah Jasraj Moti Chand of Rajkot and that the said defendant were to deliver the stock at the factory siding to the said purchaser and that the goods was to be designed to Delhi according to the said buyer's instructions, and that the said defendant gave delivery to the said buyer at the factory siding, received payment by drawing a Hundi on the said buyer who had accepted it and made the payment and that the Railway Receipt in question was handed over by the said defendant to the said buyer. The defendant further stated that they had, however, nothing to do with the plaintiff or its aforesaid unit. In its replication, the plaintiff reiterated that the aforesaid Railway Receipt had been endorsed in favor of the plaintiff for valuable consideration and the plaintiff had a right to sue on the basis of the said Railway Receipt.
(19) In support of the issue, plaintiff produced Public Witness 2 Darshan Kumar, a clerk of the Punjab National Bank who proved Ex. PW2/1, Ex. Public Witness 2/2 and Ex. Public Witness 2/3; Public Witness 4 Mahesh Chand, an accountant of the plaintiff unit who proved Ex. P26 and Ex. P27; PW6 I.P. Arya, employed in the aforesaid unit of the plaintiff; Public Witness 7 Laxmi Narain, an oil representative of the unit who proved Ex,PW7/1.
(20) In the course of his statement, Public Witness 2 Darshan Kumar, a clerk in the Punjab National Bank stated that the plaintiff had an over draft account with the Punjab National Bank and that the hundis for a total amount of Rs. 2,01,731.00were honoured by the bank to the debit of the plaintiff Company's account with it vide voucher Ex. PW2/1 and advice regarding collection of the amount of the hundis Ex. Public Witness 2/2. He further stated that Ex. Public Witness 2/3 was a copy of the debit entry made in the account as a result of the aforesaid payment which bore the signatures of the manager of the bank which the witness identified. He also identified the signatures of D.B. Mehra on Ex. PW2/2 and signature of Dharma Pal Mehra, accountant of the bank on the reverse of hundi No. 83 which was marked Ex. P3. Tn cross-examination, he however, stated that the entries in the register brought by him were not in his own hand and he could not say who had made these entries. He also disclaimed any description of the goods to which the hundis related and stated that he had not brought ledger on the basis of which Ex. Public Witness 2/3 was prepared. He also admitted that from this document, no certificate had been given under Section 2(8) of the Bankers' Books Evidence Act.
(21) It, however, appears from Ex. Public Witness 2/2 that by this document of July 16, 1965, the Punjab National Bank Ltd., Rajkot had requested its Chandni Chowk branch to collect 4 demand drafts No. 4676, 4677, 4678 and 4679 with corresponding Nos. 279, 83, 85 and 84 aggregating a sum of Rs. l,59,833.00 and the amount in question was realised vide intimation by voucher Ex. Public Witness 2/1, which gave the D.D. numbers which corresponds to the number given in Ex. Public Witness 2/2 and while the amount is the same, the corresponding numbers given in Ex. Public Witness 2/2 are not given in Ex. Public Witness 2/1. It, however, appears from Ex. Public Witness 2/3 which is copy of the bank account of the plaintiff that a debit entry of July 21, 1965 had been made of the total sum of Rs. 2,01,732.00 to 6026 P. N. Bank hundi. The numbers of the hundi are, however, not given and the amount of Ex. Public Witness 2/1 and Ex Public Witness 2/2 on the one hand and that of the entry in Ex. Public Witness 2/3 do not tally.
(22) Public Witness 4 Mahesh Chand, an accountant of the aforesaid unit of the plaintiff stated that the plaintiff were proprietors of the aforesaid unit which purchased oil through M/s. Shah Jasraj Moti Chand of Rajkot, agent. The witness brought with him a cash book and the ledger of the Company in relation to the aforesaid unit and stated that the entries made in the ledger and the cash book were prepared under his supervision with the help of machines ; that the entries had been checked with the help of original vouchers and the vouchers had been sent to head office for records. The witness produced true copy of the entries from the cash book of July 22, 1965, inter alia, relating to the payment for oil against hundi No. 83 and some other hundis and stated that hundi No. 83 related to the price of oil forming subject matter of the suit claim which had been purchased through M/s. Shah Jasraj Moti Chand. Ex. P26 is the copy of the aforesaid entries from the cash book. The witness further stated that the entries were carried from the cash book to the ledger and produced a true copy of the ledger account of M/s. Shah Jasraj Moti Chand which was marked as Ex. P27. He further claimed to have checked the entries in the copy with the original entries and contended that the account books had been maintained in the regular course of business and were duly audited. In cross-examination, he admitted that he had not brought with him original vouchers on the basis of which entries were made in the cash book and the ledger, but claimed that the original vouchers had been filed in Court along with the hundis of the party concerned and that the entries in the cash book and the ledger mention the number of hundi, the name of the party but no description of the goods to which the hundi related. A reference to Ex. P26 shows that it purports to be a copy of the page 237 of the cash book of the plaintiff Company in relation to its D.C.M. Chemical unit made on July 22, 1965 and contained entries with regard to payment to M/s. Shah Jasraj Moti Chand of various amounts in respect of hundis No. 83, 84, 85 of July 14, 1965, another hundi bearing No. 85 of July 15, 1965 and hundis No. 87 and 88 of July 17, 1965. Hundi No. 83 out of the said hundis is for a sum of Rs. 41,393.00.
(23) On a reference to Ex. P27, it appears that the account of M/s. Shah Jasraj Moti Chand in the ledger of the plaintiff Company is debited with the amount of the various hundis including hundi No. 83 under which the debit is to the extent of Rs. 41,393.00 There is, however, no indication in these hundis as to the goods to which the hundis related. However, Public Witness 4 in his statement claimed that 'hundi No. 83 related to the price of the ground-nut oil regarding which the present suit was instituted. The oil was purchased through Shah Jasraj Moti Chand.'
(24) Public Witness 6 1. P. Arya claims to be the supervisor in the oil purchase section of the plaintiff Company and stated that the groundnut oil was mostly purchased by the plaintiff Company through commission agents from Saurashtra including Messrs Shah Jasraj Moti Chand, on principal to principal basis. He further detailed the procedure of such transactions and stated that the Company received bill for the supply of oil directly from the said agents and made the payment to them who in turn purchase oil from local mills. But the oil was dispatched by the mills from whom it was purchased and that the Railway Receipt was made either in the name of the plaintiff Company or in the name of the consignor and that where the Railway Receipt was in the name of the consignor, then the consignor would endorse it in the name of the plaintiff. He further stated that two copies of the bills were received by the plaintiff in such cases the bill along with the Railway Receipt and the second one along with the hundi. Hundis were received through bank and a reference to hundi No. 83 of July 15, 1965 shows the stamp 'receipt' of the plaintiff. The witness identified the signatures of L. N. Garg, below stamp and stated that Garg was Commercial Assistant during the relevant period and worked under him. He further stated that the bill with the abovementioned hundi was passed by the witness for payment and had been verified by L. N. Garg on the place encircled Ex. P30/B. The witness identified the signatures of Garg and his writing and stated that the witness passed the bill vide Ex. P30/A and noted contract No. against which the bill was received. He further stated that the payment of the bill was made through bank against the hundi and proved the bill which was marked as Ex. P30. The bill was marked according to the order sheet subject to objection regarding its mode of proof but in the course of arguments no point was made of this objection. The stamp on hundi No. 83 marked earlier as A for the purpose of identification was marked as Ex. P31. In cross-examination, the witness admitted that there was no written agreement with the said agents regarding the manner of dispatch of oil and the procedure to be followed in the matter of making payment and stated that the oil was dispatched and the payment was made according to the normal practice of the trade. The witness expressed his inability to reproduce all the contents of the bill Ex. P30 from memory and admitted that he did not verify the correctness of the bill with the records of the agents and claimed that the oil relating to the bill Ex. P30 was dispatched through wagon but admitted that the witness was not present when the oil was loaded or unloaded and claimed no personal knowledge about the wagon.
(25) On a reference to Ex. P30 and Ex. P31, it appears that Ex. P30 is a bill dated July 15, 1965 drawn by the said agents against the plaintiff for a total sum of Rs. 41,493.00 on account of 1044 tins of loose tank of groundnut oil unrefined, The body of the bill mentions the plaintiff company's order of July 1, 1965 and of the dispatch per goods train under Railway Receipt No. 34924 of July 15, 1965, invoice No. 99, wagon No. 22356 from Dnoraji and states that 'the relative clean hundi has been sent to you today through Punjab National Bank Ltd.' and requests the plaintiff to honour it on presentation. On the foot of the bill on the left side, hundi number is given as 83. The bill contains endorsement Ex. P30/A and P30/B Ex. P30/A being an endorsement to the effect that it was for payment and Ex. P30/B being an endorsement that the necessary verification had been made. A reference to hundi No. 83 drawn by the agents on the plaintiff Company in respect of payment of Rs. 41,393.00, which according to the endorsement on Ex. P31/A was received by the representative of the plaintiff on July 15, 1965. On the reverse of it is an endorsement Ex. P3 by the manager of the Punjab National Bank Ltd. that the payment had been received.
(26) Public Witness 7 Laxmi Narain, a representative of the plaintiff Company at Rajkot stated that he used to purchase the goods through commission agents on the requirements received from the head office and that he placed order for the goods in dispute through M/s. Shah Jasraj Moti Chand. He, however, stated that the goods in dispute had been supplied by defendant No. 2, which had been weighed in the premises of the said defendant and were transferred to the wagons and a Railway Receipt was issued by the Railway concerned and that the full marked capacity of the tank was filled in. He further stated that Ex. P3 was the bill prepared by the commission agents and admitted that the endorsements Ex. P30/A and Ex. P30/B were in his hand writing. He further stated that a hundi was prepared by the commission agents according to the said bill Ex. P30 and the endorsement on Ex. P31/A was in his hand writing. He further detailed the procedure for the dispatch of the Railway Receipt and of the presentation of the hundi through bank and claimed that the Railway Receipt in respect of the goods in dispute was endorsed in favor of the aforesaid unit of the plaintiff Company by the commission agents and was handed over to the witness who in turn forwarded the same to the head office. He further stated that Ex. Public Witness 7/1 was the copy of the Railway Receipt and that he had compaced the copy with the original Railway Receipt. In cross-examination, he admitted that the goods in dispute had been supplied by M/s. Dinesh Kumar & Co. Oil Mills and a Railway Receipt was prepared in their name marked ' self'. He, however, stated that he did not remember the contents of the Railway Receipt but admitted that there was an endorsement on the Railway Receipt Ex. Public Witness 7/1 to the effect that 'Destination to weigh before delivery, Loaded directly from sender's P-godown. Not supervised by Railway staff.' He, however, stated that he was not present when the delivery of the goods in question was effected in Delhi.
(27) A reference to Ex. Public Witness 7/1 shows that it is a copy of the Railway Receipt and was apparently produced and allowed to be exhibited because the defendant Union did not produce the original Railway Receipt which must have been in their possession inspire of the notice sent to the Union for the purpose, a copy of which was produced and marked as Ex. P4 which was received by the counsel of the Union vide acknowledgement due receipt Ex. P6. According to this document, M/s. Dinesh Kumar & Co. Oil Mills had consigned to 'self' loose groundnut oil unrefined to Delhi Sarai Rohilla vide invoice No. 99, Railway Receipt No. 34924 dated July 14, 1965 in wagon No. WR-BVOLT-22356-167. Ex. Public Witness 7/1, however, though purporting to be a copy of the Railway Receipt, gives no indication that the Railway Receipt had been endorsed by the said agents in favor of the plaintiff.
(28) It is, however, duly established by the aforesaid evidence that the plaintiff Company had purchased from M/s. Shah Jasraj Moti Chand on a principal to principal basis, 1044 tins loose tank of groundnut oil unrefined for Rs. 41,393.00 vide Ex. P30; that the said agents had in turn purchased the same from M/s. Dinesh Kumar & Co. Oil Mills; that the said goods had been dispatched from Dhoraji factory siding to Delhi Sarai Rohilla by wagon No. WR-BVOLT-22356-167 vide Railway Receipt No. 34924 of July 14, 1965; that the bill Ex. P30 and hundi No. 83 Ex. P31 were sent to the plaintiff Company and the payment was duly made to the said agents on the presentation of the said hundi through the Punjab National Bank Ltd. which is duly reflected in the bank records Ex. Public Witness 2/1, Ex. Public Witness 2/2 and Ex. Public Witness 2/3 as well as in the books of account of the plaintiff vide Ex. P26 and Ex. P27. It is further established that the Railway Receipt had been delivered by the said agents to a representative of the plaintiff who in turn forwarded it to his head office and the delivery that was eventually taken by the plaintiff was on the basis of the said Railway Receipt. It is further established that the rights of M/s. Dinesh Kumar & Co. Oil Mills in the consignment forming subject matter of the aforesaid Railway Receipt which initially stood assigned in favor of the agents were eventually assigned in favor of the plaintiff and the property in the goods was transferred to the plaintiff's unit aforesaid even though the copy of the Railway Receipt Ex. Public Witness 7/1 does not purport to contain the endorsement in respect of the said assignment apparently because this copy is not the complete copy of the document but only gives the particulars of the sender, the consignee, invoice No., number of the Railway Receipt, wagon No. and the description of the goods.
(29) Learned counsel for the Union is right in his contention that mere endorsement of a Railway Receipt would not give locus standi to an endorsee to claim damages on account of any loss. This is so because an endorsement per se does not amount to transfer of property in the goods but merely authorises the endorsee to take delivery. In the present case, however, it is not the more endorsement of the Receipt which forms basis of the claim. This is based on the allegation that the plaintiff had purchased the goods, paid for them and the endorsement of the Railway Receipt in that context would have the effect of transferring property in the goods in favor of the plaintiff thereby conferring on the plaintiff the right to lay an action for damages.
(30) In the circumstances, it must be held that the plaintiff, having purchased the goods to which the claim relates and having made the payment to the said agents and having received the Railway Receipt which according to the representative of the plaintiff Public Witness 6 had been duly endorsed in favor of the plaintiff by the said agents the plaintiff became the repository of all interests in the said goods and had, thereforee, the necessary locus standi to file the suit claiming damages on account of loss allegedly occasioned as a result of the derailment and I accordingly find issue No. 2 in favor of the plaintiff.
(31) 'THE question for consideration under this issue is as to whether the notices served under Section 78-B of the Railways Act and Section 80 of the Code of Civil Procedure were not valid.
(32) The onus of this issue was on the Union but no attempt was made on behalf of the Union to show that these notices were not in accordance with the provisions referred to above or to indicate as to why they were not valid.
(33) Even otherwise, a perusal of these notices, copies of which were placed on the record and marked as Ex. P7, Ex. Pi 3 and Ex. P14 shows that they conform to the requirements of the provisions of Section 78-B of the Indian Railway Act and Section 80 of the Code of Civil Procedure respectively and could not be said to be invalid for any reason whatsoever and I find this issue against the Union.
(34) The question that requires consideration under this issue is whether the shortage in the consignment of groundnut oil was not due to any negligence or want of due care on the part of Railway Administration but was the result of any act of God or an act of public enemy so as to absolve the Union of liability on account of the resultant loss.
(35) The onus of the aforesaid issue was on the defendant and in support of its contention that the loss was not on account of any negligence or want of due care on the part of the defendant and was attributable to an act of God or of a public enemy was sought to be supported by the defendant by the evidence of DW1, Himat Lal H. Joshi, a train examiner; DW2 J. L. Chaudhry, Assistant Permanent Way Inspector; DW3 Malwant Rai Vaishnav, DW4 K. M. Bhatt; DW5 Abdal Noor Bhai ; DW6 Hem Chand, a fireman; DW7 Shanti Lal; DW8 S. K. Kapur ; DW9 S. R. Ramdas Iyer, a mechanical engineer; DW10 Ramji Sawa, a pointsman; DW11 Sonda Raja; DW12 V. S. Fadke, a loco foreman; DW13 G. T. Dave, transportation inspector; DW15 Babu Lal Verma, train examiner; DW16 B.B. Gohil, train examiner; and DW17 B. O. Dave, a draftsman.
(36) DW1 Himat Lal H. Joshi, train examiner, gave the time of the departure of the train from Rajkot. DW2 J. L. Chaudhry, who was Assistant Permanent Way Inspector during the relavant time, stated that on the fateful day, railway track concerned was normal and he had made a report to that effect in his diary which he had brought in Court and was seen and returned. DW3 Malwant Rai Vaishnav, a goods clerk who during the material time was posted at Surinder Nagar stated with reference to the transhipment book that sick wagon No. 22356 was transhiped on August 18, 1965 in wagon No. 24502. He further stated that the transhipment was done by the party and that the original wagon had been rendered unworkable as a result of the accident on the 17th of July. He further stated that the contents of the sick wagon were groundnut oil and produced an extract of the entry in respect of the shipment in the checking register for the period which was marked as Ex. DW3/1. In cross-examination, he expressed ignorance of any enquiry that may have been instituted in respect of the accident or as to the causes which led to the accident. He added that the words 151/2' indicate the depth of oil in the wagon but was unable to say as to what should be the depth of the full wagon. He, however, admitted that the carrying capacity of the transhiped wagon was 16.7 tons and that 'C.C.' meant 'carrying capacity.' He admitted that the department had not taken the signatures of the person who had transhiped the goods on behalf of the party. DW4 K. M. Bhatt who was working as a Guard in the Western Railway during the relevant time stated that there was an accident at Muli Road on July 15, 1965 and the witness was the Guard in the goods-train involved in the accident. He further stated that the train at the time of accident was running at a speed of 24 mph, the general speed being 30 mph ; that the accident took place near the home signal which is near the railway station as a result of which the train got derailed causing derailment of 36 wagons which had capasized. He further stated that wagon No. 22356 was one of the wagons which were derailed and got capsized. He further stated that the station master arrived at the scene of the accident 4/5 minutes thereafter and the witness remained at the site up to 8 p.m. and there was no theft of any goods and that the relief train arrived on the scene an hour or an hour and a half thereafter with the necessary railway officials and watch and ward staff. In cross-examination, he admitted that he had not examined the wagon in question and could not say as to what was the damage caused and whether there was any leakage in it. He further stated that the derailment took place near a bridge. The witness was unable to indicate the cause of the derailment and could not say if the derailment was due to the carelessness or negligence of the railway staff. He, however, admitted that an enquiry had been held into the accident of derailment and that he had appeared in that enquiry.
(37) DW5 Abdul Noor Bhai claimed to be the driver of the engine of the train concerned and stated that at the time of the derailment, the engine was running at the speed of 24 mph and that as soon as he noticed the derailment, he controlled the train by mean of the vacuum brake, and remained on the site until 8 p.m. He, however, stated that the engine was not derailed. In cross-examination, he was unable to say how the derailment took place but denied that the derailment could have been caused because of the breaking of the shuttle pin. He also admitted that there had been an enquiry into the accident in which he appeared before the Enquiry Officer but no action was taken against him. He disclaimed any knowledge, if the railway track was dismantled on the site of the accident and stated that it was not his job to ascertain the cause of the accident. He, however, admitted that the train was running a bit late. He was unable to say if the derailment took place on account of any negligence of the railway staff and added that the accident was not due to his negligence. He could not say if any wagon leaked after the derailment. DW6 Hem Chand, a fireman, claimed that he was working in the engine attached to the train involved in the accident. He claimed to have noiced on his attention being drawn by a gangman to the rear of the train and he noticed that certain loose stones were flying away from the track on which he informed the driver who applied the brake which caused a jerk resulting in the disengagement of the engine from the rest of the train and the derailment of it. In cross-examination, he was unable to say as to what was the cause of the derailment but admitted that the derailment could be caused by the dismantling of the track or by its getting broken. He, however, claimed that he did not see if the railway track was broken. He, however, admitted that an enquiry had been held into the causes of the accident and that he had appeared in the said enquiry. He, however, was unable to say if the accident was due to negligence of the railway staff.
(38) In his statement, DW7 Shanti Lal, who was the station master of the Muli Road Railway Station, narrated how he was informed of the accident and went to the spot in a couple of minutes and found that the engine had separated itself from the train and informed all persons concerned about the accident but could not say anything with regard to the cause of the accident. In cross-examination, he admitted that he sent a report in regard to the injury to the railway property. He admitted that some of the wagons were leaking. He could not say if the accident could be caused by the negligence of the railway staff. He however, admitted that if there was a damage to the train track, it would obviously result in derailment. He, however, admitted that there was an enquiry into the accident and that he had appeared a witness. DW8 S. K. Kapur stated that he was posted as Wankar which is at a distance of about 25 to 30 miles from Muli Road as fitter in charge and had brought the brake-down train record for the year 1965, according to which, there was an accident on July 17, 1965 and the brake-down train was ordered at 11.45 a.m. on that day. He further stated that the brake-down train was sent to the Muli Road Railway Station and reached the Station at 16.05 hours. He further stated that the said train was light and was unable to take the load of the loaded wagons, another crane of 35 tons capacity was ordered. The train that was sent to the Muli Road Railway Station was returned at 18.15 hours. In cross-examination, he admitted having seen the site of derailment but was unable to say about the damage and claimed that he did not see any leaking wagon. He was also unable to say as to what was the cause of the accident. DW9 S. R. Ramdas Iyer was the Mechanical Engineer during the relevant period at Rajkot Railway Station and stated with reference to the records that an accident took place to goods-train No. 549-UP between Muli Road and Ramparda Railway Stations of Rajkot on July 17, 1965 and that he proceeded to the site of the accident by a light engine, cleared the obstruction and found that it was a case of serious derailment involving 35 wagons including wagon No. 22356 which was found partly capsized. He further stated that after clearing the track, the wagon was sent to Surendernagar on B.F.R. but admitted that there was no arrangement to protect the contents of he wagon on the spot. In cross-examination, he admitted that although the accident occurred at 11 a.m. the track was not cleared till the night of the following day and that the sick wagon were not removed from the site in his presence. He further admitted that the derailment could he used due to several reasons such as defective track and defective rolling stock but he had no personal knowledge as to the cause of the derailment in question. He, however, stated that according to his inspection of the site, the derailment had taken place because ahead of he point on which there was a dent mark on the wooden sleeper, there was a mark on the gauge face of the left hand side road facing Muli Road Railway Station and it appeared to the witness that 'a wagon had suddenly flown off a track to the left side at a sharp tangent to the line of the track.' The witness was unable to say if any arrangements were made by the Railway for plugging the leakage.
(39) DW10 Ramji Sawa, pointsman stated that when the accident occurred, the train was going at a normal speed. DW11 Sonda Raja, a gangmate stated that his duty as also of the other gangmen was to maintain the track and that he was in charge of an area of 6 Kms. from the station towards Ramparda Railway Station and one kilometre towards Digsar Railway Station and admitted that derailment took place in the area which was under his supervision. He further stated that his inspector had not told him to carry out any work on the place of accident before accident took place. He further claimed that the track at the place of accident was in order because if it was not so his inspector would told him to carry out the repair. In cross-examination, however, he admitted that he did not inspect the track personally before the time of accident and was unable to say as to what had caused the derailment.
(40) DW12 V.S. Fadke, a loco foreman, claimed to have worked as loco foreman in Surinder Nagar in July, 1965 and to have received the information about the derailment in question at 11.55 hours on July 17, 1965. He stated that the crane available with him was of the capacity of 15 tons and was a hand crane and could not handle the derailment in question. He further stated that he reached the Muli Road Railway Station at 14.55 hours and noticed that about 34 wagons were involved in the accident out of which 21 had been derailed while 13 had capsized. He further stated that after inspecting the place, he reported that a crane of the capacity of 35 tons lying at Abu Road and Hapa could only handle the situation and Abu Road was about 150 to 175 miles from Muli Road Railway Station whereas Hapa was about 75 to 80 miles. These places had cranes which could be operated by steam. In cross-examination, he could not attribute any reason to the derailment. He admitted that he remained at the spot on the night intervening 17th and 18th July, 1965 but was unable to say whether wagons had been lifted away from the track and were removed from the site of derailment in his presence.
(41) DW13 G.T. Dave, Transportation Inspector claimed to have worked in Surinder Nagar Junction on the material date and stated that he received an information about the derailment at 11.55 hours on the 17th and reached the site of accident at 14.55 hours and took possession of the relevant station record and compared the time of the station master's watch. He further stated that he went to the site at 15.15 hours for the purpose of seeing the site of accident and was ordered to go to supervise the transhipment work. In cross-examination, he stated that he remained at the site of derailment on the first occasion for 2/3 hours but did not go back to the site of derailment for the second time. He further stated that he did not inspect any sick wagon and did not know the cause of the accident.
(42) DW15, Babu Lal Verma, who claimed to have been posted as head train examiner in Surinder Nagar, stated that he came to know about the derailment at 11.55 hours on July 17, 1965 and examined the track along with others and also the position of the wagon and prepared a joint observation report. He further stated that the drawbar of the wagon in question was found broken and drain-valve was found broken from flenge and that the cause of the derailment could not be ascertained. In cross-examination, he admitted that the wagon in question was found leaking because of puncture but the actual puncture could not be located because the wagon in question had telescoped into the other but he could notice a leakage of 5 'to 6'. He further stated that there was no possibility of the same being plugged because the derailment had taken place on the bridge and the wagon in question was preceded and succeeded by other derailed wagons. He further stated that the line was cleared on the following day. He further stated that he did not have the report prepared by him before him when he was giving evidence but stated that he had made statement on the basis of the record before him which he had brought with him to the Court. He further stated that the original report had been handed over by him to the Enquiry Committee, but he was unaware of the finding of the Committee. DW16 B. B. Gohil, head train examiner, stated that he had been posted as head train examiner in July 1967 and that second and third wagons of 549 Up goods train were brought to Surinder Nagar and the witness along with Public Witness 1 jointly carried out the defect in them. In cross-examination, however, he admitted that he did not inspect any derailed wagon. DW17, B. S. Dave, draftsman stated that he was posted at Rajkot as draftsman in July 1965 and had gone to the site of the accident on the 18th July and that the Permanent Way Inspector had prepared a sketch which the witness copied.
(43) No evidence was produced on behalf of the plaintiff in rebuttal.
(44) On a consideration of the aforesaid evidence it is difficult to resist the conclusion that on the fateful day, the train was being driven at the normal speed; that normal precaution had been taken by the authorities to ensure the safety of the track; that the track was apparently normal before the accident that the derailment though related to the track could not be attributed to any precise cause that the loss of oil was a consequence of the damage done to the wagon in question as a result of the derailment and that the loss could not be mitigated inspire of the steps taken by the railway authorities to tranship the goods.
(45) It is, however, not possible to give any finding on the existing material as to the precise cause of the accident and the Railway Administration had, thereforee, failed in its duty to discharge the onus which lay heavily on them to show that the Railway Administration was not responsible for the loss particularly having regard to the fact that the enquiry into the causes of the accident had been instituted in which some of the witnesses had appeared and a report of the enquiry had been submitted. Some other reports had also been submitted on the inspection of the site by some of the witnesses. The Railway Administration has failed to produce copies of any of those reports before the Court and it would, thereforee, be not unreasonable to infer that if all or any of the reports had been produced by the Administration in Court, it would probably have belied the case of the Administration.
(46) Even otherwise, under Section 73 of the Indian Railways Act, the Railway Administration is responsible for the loss, damage, destruction, deterioration or non-delivery, in transit, of goods delivered to the Administration to be carried by railway, arising from any cause except the causes set out in clauses (a) to (i) of that Section and even where such loss etc. could be attributed to any of the aforesaid causes, the Railway Administration is not relieved of its responsibility for the loss etc. 'unless the Administration further proves that it has used reasonable foresight and care in the carriage of the' goods. The only way, in which the Railway Administration, could thereforee, absolve itself of responsibility for the loss, is to bring its case within the exceptions and to establish that it had used reasonable foresight and care in the carriage of the goods. The use by the Administration of any foresight and care in the carriage of goods in the absence of the application of any of the excepted causes would be wholly irrelevant.
(47) Learned counsel for the Union sought to bring his case within the exception provided in clauses (a) and (c) of Section 73 and urged that the Railway Administration having produced sufficient evidence to exclude some of the known causes of derailment and all material to show that all reasonable precaution had been taken by the Railway to avoid and avert the accident, the accident and the consequent loss must, thereforee, be attributed to either an 'act of God' or an 'act of public enemies' within the meaning of clauses (a) and (c) of Section 73 of the Act.
(48) After hearing learned counsel for the parties it appears to me that this contention of the Union is not sustainable. Whether a situation has been brought about by an act of God or by an act of public enemy must be established like any other fact. It is not possible to accept the theory that merely because the Railway Administration has produced material to exclude the possibility of some of the normal causes of an accident contributing to an accident or if the cause of the accident is otherwise inexplicable either on a proper enquiry or otherwise, such an accident must be attributed to providence or to a public enemy so as to entitle the Railway Administration lo immunity from consequent liability.
(49) The term 'act of God' has not been defined either in the Indian Railways Act or in any other statute but attempts had been made in the past to judicially define the term Esher M. R. in Pandorf v. Hamilton, 55 Ljqb 548 : 17 Qbd 675, expressed the view that the phrase did 'not mean act of God in the Biblical sense of the term, under which everything almost is said to be the act of God; but that in a mercantile sense, it meant an extraordinary circumstance which could not be foreseen and which could not be guarded against.' In Forward v. Pittard, (1783) 1 Tr 27, Lord Mansfield held it to mean 'something in opposition to the act of man.' In Nugent v. Smith, (1876) 1 Cpd 19 : 45 Ljqbd 19, James L. J. had to say 'to say that a common carrier is not liable for the act of God is merely a short way of expressing this proposition : A common carrier is not liable for any accident as to which he can show that it was due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight, pains and care reasonably to be expected from him.'
(50) It would, thus, appear that although in the strict religious or philosophic sense all human acts and frailties could be attributed to the providential will and it is a hidden act of destiny which inexorably leads man to disaster or heights of achievement and man in that sense is only an instrument, it is not possible to introduce such a doctrine in determining the legal liability of a person for acts over which he has control. The term could not be given wide connotation so as to include every inexplicable human error or other unexplained incidents and must be confined to acts caused by natural elements such as storms, floods, lightning, earthquake and such other acts of nature which, inspire of the scientific and technological progress, man is unable to foresee and resist and this is based on the theory that a person cannot be held responsible for an act which he could not have possibly prevented. If every inexplicable human or other act or error could be attributed to providential will, all human errors, frailties, acts of commission and omission and acts of malfeasance and misfeasance, which remained unexplained, would get submitted as providential acts and be able to earn for their perpetractors an unmerited immunity.
(51) In the same way, it is not possible to shift the blame on any illusory public enemy in all matters in which no Explanationn is possible and afford the protection of the laws to those who may be responsible for the act.
(52) The act of God and of public enemies must be established like all other facts and no attempt has been made on behalf of the Union to establish the aforesaid facts and the Union is, thereforee, not entitled to seek the aid of the exception. The question whether the Union would be entitled to the benefit of proviso to Section 73 for having used reasonable foresight and care would not, thereforee, be relevant.
(53) In the result, I have no hesitation in holding that the accident and the consequent shortage in the consignment of groundnut oil has not been established to be on account of any causes other than the negligence or want of due care on the part of the Railway Administration and that it could not be attributed to an act of God or an act of a public enemy so as to absolve the Union of the liability on account of the loss consequent on the accident and I decide this issue against the Union.
Issue No. 5.
(54) The question that requires consideration under this issue is as to the quantum of damages on the findings returned above.
(55) Plaintiff claims a sum of Rs. 34,326 on account of loss suffered as a result of short delivery consequent on the derailment and the transhipment occasioned by it, of which the plaintiff has given details in para 8 of the plaint which is in the following terms :
'THATon account of short-delivery of ground-nut oil, plaintiff has suffered a loss of Rs. 34,326 as per details below :
Actual weight loaded: 1044 tins or 16704 Kgs. Actual weight received: 3304 Kgs. Shortage : 13400 Kgs. Total amount of the bill(16704 Kgs.)Rs.41,393.00 Cost of 13400 Kgs. G. N. oil Rs.33,205.60 Proportionate Rly. freight. Rs.1,020.40 Total : Rs.34,226.00 Demurrage/Wharfage charged, Rs.100.00 Rs.34,326.00 Total amount of claims. Rs.34326.00.'
(56) I have held above under issue No. 2 that 1044 tins of groundnut oil weighing 16704 Kgs. had been purchased by the plaintiff on payment of total sum of Rs. 41,393.
(57) It was not disputed before me that on account of the accident and the consequent damage to the wagon and the resultant leakage, considerable oil had leaked out of the wagon and the actual quantity of oil received by the plaintiff at destination was 3304 Kgs. This fact is even otherwise fully established by the evidence of Public Witness 3 S. Kishnan and Public Witness 5 Mool Raj, who during the material period were working in the unit concerned of the plaintiff. Public Witness 3 S. Krishnan stated that during the material period, he was working as Movement Officer in the D.C.M. Chemical Works and had taken delivery of the groundnut oil in question. He stated that on the receipt of the consignment a was found that the quantity was even less than l/4th of the entire consignment and that the plaintiff sought weighment of the oil before taking delivery. He also proved Exhibits P7 to P12 which were copies of the letters addressed by the plaintiff to the railway authorities in connection with the short delivery. He also proved Exhibits P15 and P16 which were copies of the letters addressed to Station Master, Sarai Rohilla, Delhi and the certificate issued by the railway authorities. He also proved Exhibit P17 which was copy of the letter written by the plaintiff to the Station Master, Delhi Sarai Rohilla Station and Exhibit P18, a carbon copy of the note issued by the Rly. Admn. He also proved Exhibits P19 to P23 which were copies of letters written by the plaintiff to the Station Master under the signatures of the witness. He also referred to the endorsements on notices Exhibits P20 and P23 made by the goods clerk Delhi Sarai Rohilla Station and Exhibits P24 and P25 being the letters received by the plaintiff from the Chief Commercial Superintendent (Claims). Public Witness 5 Mool Raj stated that he was working in the oil godown of the plaintiff and his duty included to check the weighment of the oil which was received and to enter the weight in the receipt register. He also stated that the plaintiff has a weigh bridge and the consignments received are weighed on it and as soon as a tanker is received it is emptied into one of the storage tanks and is then pumped into the tank fixed on the weigh bridge. He further stated that the weight was then reflected in the weighment register and the witness had brought with him weighment and the receipt register for the relevant period. The witness produced copies of the entries from. the receipt register and proved it as Exhibit P28. He further stated that these entries had been checked by him at the end of the day and totals were made by him in his hand writing. The witness also proved copy of the entries from the weighment register which was marked as Ex. P29 which the witness claimed had been maintained regularly in the normal course of business and were duly checked by the checking department. A reference to Exhibit P16 which was referred to by Public Witness 3 and which is copy of the certificate issued by the railway authorities shows that on transhipment of oil into a new wagon it was found that the original wagon was in an uneven position and the dip taken after the tank was transhiped showed 1551/2' into the transhipped tank and it is recorded that according to the sender's representative 151/2' approximately can be filled in 125 tins. Ex. P19 which was also referred to by Public Witness 3 is a carbon copy of the note issued by the railway authorities addressed to the D.C.M. Chemical Works shows that the Railway denied that it was their function to indicate weighment for any consignment which was outwardly in good condition and added that if at all it was to be weighed before taking delivery. A reference to Exhibits P28 and P29 which are extracts of the daily oil receipt register and weighment register respectively shows that the dip in the tank was 151/2' and the quantity of which delivery was taken and which was eventually received by the unit was 3304 Kgs. A reference to Ex. P29 shows that according to the entry made in the weighment register, the quantity found in the tank was 3304 Kgs. as against total quantity of 16704 Kgs. which was consigned by the consignor. A reference to Exhibits P7 to P12 further supports the contention of the plaintiff as to the quantum of shortage and the extent of loss suffered by the plaintiff. A reference to Exhibits P20 to P23 further supports the plaintiff. Exhibit P20 is a copy of the plaintiff's letter to the Station Master of the destination station informing him with reference to his telegraphic message that he plaintiff shall depute its representative at the time of taking dip measurement of the G. N. Oil tank Wagon which was due for release. The letter further asserted that the detention of the tank had caused delay in taking prompt action. By Exhibit P21, the plaintiff protested to the station master of the destination station about demurrage of Rs. 100 being charged at the time of the release and stated that the payment was being made under protest. By Exhibit P22 the plaintiff asked the station master of the dip reading 151/2' and sought railways' confirmation with regard to the shortage. This request was reiterated by the plaintiff's letter Exhibit P23 and this letter bears an endorsement by the railway authorities to the effect that contents of the tank had been weighed and found to be short and as regards depth, it had already been advised to the plaintiff by the 'C.M.S. (W. Rly.).'
(58) It is, thereforee, fully established by the aforesaid evidence that as a result of the accident and the consequent leakage and the transhipment as against the total quantity of 16704 Kgs. which was consigned from the place of origin, only a quantity of 3304 Kgs. was received and there was, thereforee, a shortage of 13400 Kgs. on which the plaintiff would also be entitled to a rebate of railway freight amounting to Rs. 1020.40 and of the demurrage of Rs. 100 paid by the plaintiff to the Administration under protest because of the delay in the release of the goods on account of the insistence of the plaintiff that the oil should be weighed before delivery which the plaintiff was fully entitled. It is, thus established that the plaintiff suffered a loss of Rs. 34,326 which the defendant is liable to pay to the plaintiff.
(59) In the result, the plaintiff succeeds. The claim of the plaintiff for Rs. 34,326 is decreed against the defendant. The plaintiff would also be entitled to interest at 6 per cent per annum from the date of the institution of the suit till the date of the realisation of the amount. The plaintiff would also have its costs.