1. Appellant is the South Indian Railway impleaded in the suit filed in 1945 as the Governor General in Council, New Delhi, represented by the General Manager. There has been much evolutionary change since, with all the Railways in the Union nationalised and today the appellant is the Dominion of India. The original plaintiff was Adam Haji Pir Muhammad Esack and he too is now represented by the Custodian of Evacuee Property. He will however, be referred to in this judgment for convenience as the plaintiff. He sued to recover Rs. 5600 from the South Indian Railway in respect of a consignment of 200 bags of Bengal gram, which were booked at Cawnpore on the G.I.P. Railway on 1-11-1944 to Cuddalore on the South Indian Railway. The learned Subordinate Judge decreed his suit in full.
2. The relevant facts are these: Plaintiff, a wholesale dealer in grains, groceries and so on had business ramifications throughout what was then British India. He had a branch at Cawnpore and another at Cuddalore. The 200 bags of Bengal gram were, according to invoice No. 6 of 1944 Ex. P. 1, dated 1-11-1944, consigned in the name of someone by name R.F.C. to one M. Bagavandas. Subsequent to the consignment, Bagawsndas endorsed Ex. P. 1 to the plaintiff, who appears to have purchased it after it was consigned for transit. It is common ground that the bags arrived at Arko-nam in a full sealed wagon on the broad gauge railway and were there transhipped into two meter "gauge wagons M.C. 413 and M.C. 60 each containing 100 bags. These two wagons with seal cards with No. "8" on them instead of the correct invoice No. 6 reached Cuddalore on 16-11-1944. It is common ground that the invoices were prepared in triplicate and that one copy had to be carried by the guard. The copy, which should have been in the guard's possession, was not forthcoming and had got mislaid somewhere. The result was that when plaintiff's agent at Cuddalore (P.W. 1) went to the goods station and asked for delivery on 17-11-1944 on the strength of Ex. P. 1, the Goods Station Master, D.W. 3 declined to deliver without instructions, for which he wired. His main difficulty appears to have been that the seal cards on the wagons showed invoice No. 8 and as the guard was unable to produce the copy of the invoice, which should have been in his possession, he was not sure whether these bags related to Ex. P. 1. On 23-11-1944, an Inspector (D.W. 1) was sent to Cuddalore and he opened the-: wagons to see if the bags had marks. He found no identifying marks and further more that the seal card did not show the date of the invoice. The hags were unloaded on 13-12-1944 from the wagons and stacked in a covered shed. Despite the South Indian Railway writing to the G.I.P. Railway that there was only one person claiming under invoice No. 6, it was not till 24-1-1945 that the G.I.P. Railway authorised delivery. The station master, Cuddalore, then sent word to the plaintiff's branch there to take delivery. They declined. Registered notices, (see Ex. D. 31 dated 30-1-1945) were sent both to the plaintiff and to Bagavandas calling upon them to take delivery in the following terms:
"Legally you cannot refuse delivery of a consignment or part thereof in whatever condition it may be available for delivery. The railway is prepared to allow delivery on remarks for actual condition and weight. The consignment is lying undelivered solely at your risk according wharfage. The delay in delivery is due to you and the railway is not responsible."
Plaintiff replied by letter Ex. D. 33 dated 4-2-1945 declining to take delivery on various grounds, that the goods had become deteriorated and damaged while lying in a state of exposure in the goods shed, and that after the arrival of the goods at Cuddalore, there had been a fall in price of Rs. 8 a bag. At the same time, this letter appreciated the fairness of the railway offer of delivery with remarks on actual condition and weight, meaning that the plaintiff would be compensated for loss sustained by them. It was not till 29-5-45 that the railway company sold the 200 bags in public auction for Rs. 3625 under Section 56(2) of the Railways Act. The delay is satisfactorily explained as, grain being a controlled commodity, the collector's permission had to be obtained for sale. Deducting freight of Rs. 432 and demurrage of Rs. 1052, there was a balance of Rs. 2140-9-8 available to the plaintiff, who however sued to recover the full value of the grain according to the invoice.
3. The first point taken by Mr. Ramachanra Aiyar for the appellant is that the suit against the South Indian Railway is not maintainable and that the plaintiff should have sued the contracting railway, i.e., the G.I.P. Railway. He relied on -- 'Chunnilal v. Nizam's Guaranteed State Railway Co.', 29 All. 228 a Full Bench decision of the Allahabad High Court followed by King J. in -- 'South Indian Railway v. Krishnaswami Naidu', 71 M. L. J. 325. The facts, of those cases were quite different and they were held to be not covered by Section 80, Railways Act, which enables a suit for compensation for injury to through booked traffic being brought either against the contracting railway administration or against the railway on which loss, injury, destruction or deterioration occurred. In the present case, 'there is clear and ample evidence to show that the deterioration occurred at Cuddalore, where the goods arrived in good time on 16-11-44. In two letters Ex. D. 21 dated 17-1-45 and Ex. D. 25 dated 25-1-45 written by railway officials 'inter se', there is a clear reference to the deterioration of these bags, and a request for instructions by wire if delivery can be made to invoice No. 6- Quite apart from this positive evidence of deterioration, the main grievance of the plaintiff is that although these bags arrived in Cuddalore on 16-11-1944, his representative was refused delivery and delivery was only offered more than 2 months later not only after the bags had deteriorated, but also after there had been a substantial fall in price. There can be no doubt that there was a muddle and a mistake arising out of negligence, amounting to misconduct on the part of the railway servants, which resulted in the delivery of these bags being refused to the plaintiff immediately after their arrival.
4. We have looked into the original invoice Ex. P. 1 and find there invoice No. 6 and also the digit 8 in the column for the Descriptive marks on the consignment. This doubtless accounted for the mistake in the seal cards on which No. 3 appeared. Mr. Ramachandra Aiyar, while conceding the mistakes committed on the railway, has pleaded that the South Indian Railway did everything possible to put matters right, and has gone to-the length of suggesting that plaintiff's representative at Cuddalore could easily have written to the plaintiff at Cawnpore to put matters right with the (Consigning railway there. We have no hesitation in finding in the first place that there was deterioration and damage at Cuddalore, as a result of negligence amounting to misconduct committed on tee South Indian Railway and that this being the case, the suit has been properly instituted under Section 80, Railways Act, against the South Indian Railway.
5. The South Indian Railway will, therefore, be prima facie liable for compensation as a result of such misconduct. It is next urged by Ramachandra Aiyar that the consignor was also guilty of negligence in not putting identifying marks on these bags. It is urged that, had this been done, it would have enabled the Inspector who opened the wagons on 23-11-1944 to give delivery. As regards this, negligence was shared between the consignor and the railway company, who should have seen that the bags were marked with the identifying marks noted in the invoice before final acceptance. We do not think that the absence of identifying marks on the bags had really anything to do with the refusal to deliver these bags to the plaintiff, one which was the direct cause of other negligent mistakes of both the railway companies.
6. It is finally urged that the plaintiff was at fault in not taking delivery of the bags towards the end of January when after considerable delay, the G.I.P. Railway authorised the South Indian Railway to deliver. There appears to us some substance in this contention. Reliance has been placed on -- 'East Indian Railway Co. v. Behari Lal,' AIR 1926 Lah. 512 and -- 'Secretary of State for India v. Firm Harikrishna Das', AIR 1926 Lah. 575 two Bench decisions of the Lahore High Court. In both these cases, it was held that a consignee is bound to take delivery of goods even if they are damaged, his remedy being to claim compensation. In the first case, a consignment of 200 bags of atta despatched from Delhi reached its destination after about four and a half months in 1920. There was no evidence as regards the condition of the atta on arrival and no damage being established, the plaintiff was held entitled only to the auction-realisation less auctioneer's commission and certain freight charges, restoring the trial court decree and reversing the decision of the District Judge in appeal that the consignee in the circumstances were not bound to take delivery. In the second case, -- 'Secretary of State for India v. Krishnadas'. ATR 1926 Lah. 575, 172 bags of atta arrived at its destination on the railway on 3rd July 1920 but. the plaintiff consignee did not claim them till 10th July and refused delivery on the ground that the atta had been damaged by rain, which had fallen that very day. Here too the trial court gave the plaintiff a decree for the price realised by the auction held on the 1st of December 1920 under Section 56(2). Railways Act, less the demurrage. The District Judge allowed the plaintiff's claim for the value of the goods minus freight and demurrage only after 10th July. Here too, the trial court decree was restored.
7. We are unable to regard these decisions as authority for the position that in all cases in which a consignor refuses to take delivery, he ran only recover what the goods fetch in auction less freight and demurrage. There is nothing in the bailment sections of the Contract Act, which lay down any obligation on the bailor to take delivery from the bailee when he offers it, nor is there any decision, which lays down any such hard and fast rule. Normally as property in the goods entrusted to a carrier remains with the owner, he is bound to take delivery even if they are damaged, his remedy being to claim compensation, nor can he cast upon the bailee responsibility for further custody as bailee without payment of storage or demurrage dues. Each case has to be considered on its own facts and no hard and fast rule can be laid down. On the facts of the present case, we are satisfied that despite the refusal of the railway company to give delivery on 17-11-1944 when the plaintiff's representative demanded it and all these bags were in the Cuddalore goods shed, there was nevertheless a duty cast on the plaintiff to have taken delivery of the goods, though damaged when delivery was offered on 24-1-1945 in accordance with the very fair and reasonable terms offered by the railway company in their letter. Ex. D. 31. The legal position in the extract from this letter supra is, in our opinion, correct though it does not necessarily follow in all cases that a consignor refusing to take delivery is precluded from filing his suit for compensation and can only receive what the goods fetch in auction when sold under Section 56(2) of the Railways Act. In the present case, there can be no doubt that by 24-1-1945 the price of Bengal gram had fallen by Rs. 8 a bag and further more that there was deterioration due to exposure while the bags were unnecessarily detained in the Cuddalore goods shed in consequence of the negligence of the railway companies for a period of more than two months.
8. We are unable to uphold the lower court's decree in full for Rs. 5600 with full costs. There is no justification for disallowing the freight, and in view of the plaintiff's wrong ful refusal to take delivery when ultimately offered on 24-1-1945, he must also pay demur rage charges of Rs. 1052. Plaintiff will accordingly have a modified decree for Rs. 4116 against the railway company with half costs throughout, and interest at six per cent from date of lower court's decree.