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The Union of India (Uoi) Owing the Railways in India Represented by the General Manager, Southern Railway, and ors. Vs. C.A. Akhthar and Co. Represented by Its Partners - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1976)2MLJ153
AppellantThe Union of India (Uoi) Owing the Railways in India Represented by the General Manager, Southern Ra
RespondentC.A. Akhthar and Co. Represented by Its Partners
Cases ReferredA.R. Ahmed & Co. v. Union of India
Excerpt:
- .....the damage or deterioration to the goods is due to such negligence. it is to be noted that the goods transported are dry salted cow hides. it is not disputed by the learned counsel for the respondents (plaintiffs) that these hides though they are dry salted hides have an inherent vice and at some point of time such vice would assert itself and deterioration of the hides would start. however, no literature has been placed before me as to the period during which a well cured dry hide would preserve itself without deterioration. in other words, no literature is placed before the court to show how long it would take for the inherent vice in the cow hides to assert itself, even when such hides are properly cured.10. in east asiatic co., (p.) ltd. v. union of india a.s. no. 193 of 1960, a.....
Judgment:

N.S. Ramaswami, J.

1. This appeal arises out of a suit for damages in respect of certain bundles of dry salted cow hides transport ed through the railways. The plaintiff's are the consignees of 210 bundles of dry salted cow hides, the same having been consigned from Shillong, in the State of Assam. The said 210 bundles were consigned on 6th April, 1962. 105 bundles had been loaded in one wagon and another 105 bundles were loaded in a second wagon. One wagon reached Salt Gotaurs at Madras, the place of destination, on 9th June, 1962 and the other reached only on 20th June, 1962. The consignees demanded open delivery and it was given.

The goods were found to be deteriorated and the Claims Inspector of the Southern Railway evaluated the damages at Rs. 4,780.38. The consignees filed the suit for damages for a sum of Rs. 8,303.16, which according to them, is the correct value of the damages of the goods, contending that the deterioration of the goods was due to negligence or misconduct on the part of the railways.

2. The railway administration contended that the deterioration was dub to inherent vice of the goods and not due to any negligence or misconduct on its part and that therefore the plaintiff should be non-suited.

3. The Court below held that there has been unexplained delay on the part of the railway administration in the transport of the goods, that such delay shows that there had been negligence on the part of the railway administration and that therefore it must be held that the deterioration of the goods was due to the negligence of the railway administration. The Court, however, did not accept the valuation of the consignees (plaintiffs) regarding the damages, but accepted the valuation made by the Claim Inspector, Southern Railway and has granted a decree for Rs. 4,780.38, with interest at six per cent, per annum from the date of plaint. The plaintiffs have accepted the decree. The railway administration which is the defendant in the, case, has filed this appeal.

4. On the question of fact whether there has been delay on the part of the railway administration in the transport of the goods, I think the view of the trial Court is right. It has been alleged in the plaint that the normal time for transport of the goods from Shillong to Salt Cotaurs, Madras, is about two week. This is denied by the railway administration. There is no evidence on either side as to the normal time to be taken for transport of goods from Shillong to Madras. Even so it cannot be seriously disputed that there has been delay. The goods had been accepted by the railway administration for transport on 6th April, 1962. Part of the same had reached Salt Cotaurs only on 9th June, 1962. This is roughly two months after the booking. The remaining part reached Salt Cotaurs only about 2 months after the date at booking. It may be noted here that Shillong lias no railway station. The nearest railway station is.at Gauhati said to be about 63 miles from Shillong. An out agency run,, by the State Transport Department is doing the work of the Railway between 'Shillong and Gauhati. Though the packing of the goods and issue of the railway receipt was on 6th April, 1962, it is stated that according to practice, the goods were allowed to be in the custody of the consignor himself and that the goods were actually loaded in the trucks of the State Transport Department only on 6th May, 1962, i.e. one month after the date of booking. Exhibits B-2 to B-4 which are certain slips sent by the State Transport Department to the consignor show that on three occasions, i.e., on 6th April, 1962, 13th April, 1962 and 19th April, 1962 the trucks of the State Transport Department were taken to the warehouse of the consignor for being loaded, but they had 'to return without being so loaded, due to rains. They were actually loaded only on the fourth occasion when the trucks went to the warehouse of the consignor on 6th May, 1962. Then the goods were taken to Gauhati and transported from Gauhati to Salt Cotaurs in two wagons.

5. One contention on behalf of the railway administration is that as the goods were actually in the custody of the consignor between 6th April, 1962 and 6th May, 1962 that period should be excluded for considering the question whethar there has been delay on the part of the railway administration in the transport of the goods. I think it is unnecessary to go into the question as to who exactly is responsible for the delay between 6th April, 1962 and 6th Msty, 1962 for even after 6th May, 1962 the goods had not been transported in proper time.

6. It is hot clear when exactly the goods left Gauhati, whether it was 6th May, 1962 itself1 or only on 7th May, 1962. Anyway, even excluding the period of one. month between 6th April, 1962 and 6th May, 1962 the interval is too long for the railway administration. to Say that there had been no delay on their part. Even though there is no evidence that the nornial time for transport from Shillong to Madras is only two weeks, the period taken for transhipment in this case is lindoubtedly too long and therefore there is no serious dispute that there has in fact been delay.

7. It is also fairly clear from the evidence on record that the delay has not been properly explained by the railway administration. As pointed out by the trial Court, even though the railway administration, has called eight witnesses to prove, the movement of the wagons, there is lack of evidence as to when exactly the goods were loaded in the wagons at Gauhati, when exactly the wagons rolled out of Gauhati and what happened at several other points. For instance, there is no evidence as to when the wagons arrived at Bagalpur and when they were sent out of that place. Under these circumstances, it is not seriously disputed before me that there has been unexplained delay on the part of the railway administration regarding transport of the goods.

8. It is for the railway administration to place all the necessary evidence regarding the movement of the goods because that is exclusively within its knowledge and therefore when the administration does hot place all necessary evidence to explain the delay it is not unreasonable to infer that there has been negligence on its part in the transport of the goods. To this extent, the conclusion of the learned trial Judge is correct. However, the learned Judge has massed the real point in this case.

9. The mere fact that there has been negligence on the part of the railway administration in the transport of the goods does not ipso facto lead to the conclusion that the damage or deterioration to the goods is due to such negligence. It is to be noted that the goods transported are dry salted cow hides. It is not disputed by the learned Counsel for the respondents (plaintiffs) that these hides though they are dry salted hides have an inherent vice and at some point of time such vice would assert itself and deterioration of the hides would start. However, no literature has been placed before me as to the period during which a well cured dry hide would preserve itself without deterioration. In other words, no literature is placed before the Court to show how long it would take for the inherent vice in the cow hides to assert itself, even when such hides are properly cured.

10. In East Asiatic Co., (P.) Ltd. v. Union of India A.S. No. 193 of 1960, a Division Bench of this Court, after referring to the literature on the subject observed:

While in England a properly cured hide, can be preserved for one year, in India it can hardly be preserved for more than six or seven weeks from putrefactive damages.

The Division Bench also held that;-

Unless the plaintiffs are able to place before the Court, the data regarding the dates of curing and the interval also that had elapsed between, slaying and the curing, there is every possibility that the inherent vice in the goods had begun to operate and brought the goods to such a condition that though they might not have deteriorated at the moment of despatch, deterioration was just round the corner, and could have taken place at any time thereafter during transit.

11. In the present case the plaintiffs have not called any evidence as to when exactly the goods were purchased by the consignor. There is absolutely no evidence regarding the date of slaying, the date or dates on which the curing had been done and as to whether there was proper curing of the hides. In fact, there is no evidence at all regarding what happened at the consignor's end. The only two witnesses called by the plaintiffs are those who were present when the goods were taken open delivery of at Salt Cotaurs, Madras. That being so, the question is whether one can say, with any amount of certainty, that the deterioration of the goods was due to delay on the part of the railway administration. I am of the view that the deterioration may as well be due to inherent vice and due to the fact that the hides had not been properly cured and that they were not fresh even when they were packed for despatch.

12. Under Section 74(3) of the Indian Railways Act except upon proof that the damage or deterioration was due to negligence or misconduct on the part of the railway administration, the administration cannot be held responsible for such damage or deterioration. Therefore, the plaintiffs who have come to Court with the allegation that there has been damage or deterioration to the goods as in the present case, have necessarily to prove that such damage or deterioration is due to negligence or misconduct on the part of the railway administration. It is no good saying that there has been negligence on the part of the administration and that therefore it must be held that the damage or deterioration to the goods is due to such negligence. As I said the damage or deterioration might as well as be due to some other cause such as inherent vice as referred above. Therefore, unless the plaintiffs let in evidence regarding the condition of the goods when they were booked, they cannot be heard to say that the deterioration to the goods should necessarily be connected with the delay in the transport amounting to negligence on the part of the railway administration. The principle enunciated in the Bench Decision referred above squarely applies to this case. Of course in that case there was no delay on the part of the railway administration. There, the goods had been booked at Vizianagaram to Roya-puram. The normal time for transport would be ten days. But, the interval between the date of booking and the arrival of goods at Royapuram. was 27 days. However, the railway administration gave a proper explanation for the delay of 17 days. Therefore, it was held that there was no negligence on the part of the railway administration. But, what is to be noted is the Division Bench has followed the decision of another Division Bench in A. Abdul Shukoor and Co., Madras v. The Union of India S.A. Nos. 1069 to 1074 and 1295 of 1960, represented by the General Manager, Central Railways, Bombay and Ors. S.A. Nos. 1069 to 1074 and 1295 of 1960, and accepted the principle that lack of evidence as to when the hides or skins were cured is destructive of the plaintiffs' case. It has been pointed but by the Division Bench which decided the Second Appeals referred above, that it is very material to note when the skins or hides were actually cured as there is the possibility of a long tiirie having already lapsed by the tittse the consignment was booked.

13. The learned Counsel for the respondents (plaintiffs) referred to Abdul Shukoor and Co. v. Union of India : (1971)1MLJ400 , where Ramamurthi; J., had dealt with ai case of wet salted goat and sheep skin sent from,I Bolanganj to Madras. The interval between the date of booking aiid the arrival of the goods at Madras was, 23 days though the normal time to be taken is only 10 days. It was held by the learned Judge that the above-said delay had not been explained ty the railway administration and that showed that the administrationwas guilty of negligence. The learned Judge further held that the plaintiffs in that case had positively proved that the skins had been properly cured, packed etc. In other words, the learned Judge held that there was no possibility of the deterioration of the goods being the result of any inherent vice in the goods but the deterioration was only due to negligence on the part of the administration. That case has no application to the facts of the present case, because as already noticed, the respondents (plaintiffs) have not placed any evidence whatsoever regarding the condition of the goods before they were booked and consigned.

14. Mr. Srisailam, learned Counsel for the railway administration relied on A.R. Ahmed & Co. v. Union of India : AIR1972Mad454 , where Ismail, J., had to deal with a case of wet salted goat skins which were booked from Raipur to Madras. The interval between the date of booking and the arrival of the goods at Madras was 46 days. Even though there was no clear finding as to the normal period to be taken for the journey, it was held that there had been some delay, in the transport of'the goods which amounted to negligence on the part of the railway administration. Even so the claim for damages had been negatived. The learned Judge has observed at page 460 that the plaintiff had not established that the deterioration of the goods was due to the delay on the part of the respondents, and that field should have shown this by producing necessary evidence as to when the iskins were salted or cured and what was interval between slaying and salting. It 'was'further pointed out that in the absence df any such evidence to show that on the dates when the skins were consigned they were in a position to withstand the transit of the normal period it cannot be ihield that the plaintiffs had proved or Jesjtablisiied that the deterioration was due to the delay on the part of the rail-Way administration in the oarriage of the goods.

15. The decision is sought to be distinguished by Mr. A. Ramanathan, learned Counsel for the respondents (plaintiffs) on the ground that in that case there were 'endorsements on the railway receipts that the goods had not been properly cured and therefore they are liable to be 4aniaged in transit. In fact, the learned Judge has referred to such endorsements as a crucial or very significant feature, and therefore on facts that case cannot be Mid to be on all-fours with the present one. even so,; the observation of the learned Judgei referred to above is in line with the two Bench decisions (1) in S.A. Nos. 1069 to 1074 and 1295 of 1960 and (2) in A.S. No. 193 of 1960. There is no escaping the position that for a plaintiff who comes to Court in a case like this, it is for hie] to show as to when the curing was done, the interval between the time of slaying and curing, as to whether curing had been done properly and whether the goods were in such a condition as to with stand the transit of the same in normal period. As there is no such evidence in the present; case, it is not right to hold that the damage or deterioration to the goods should be only due to the delay on me part of the railway administration. It is quite possible that the goods though not actually deteriorated at the time of consignment was about to deteriorate by that date.

16. The learned trial Judge has com-tdetely overlooked this aspect of the tnatter and he simply stated that as there has been unexplained delay on the part of. the railway administration, the damage or deterioration should necessarily be linked with the same. That is certainly not correct.

17. In the result, the appeal is allowed and the plaintiffs' suit is dismissed. But in the circumstances pf the case, I direct the parties to bear their respective costs throughout.


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