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Shankar Lal v. Union Of India - SECOND APPEAL No. 324 of 1977 [2007] RD-AH 13140 (30 July 2007)


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Court No. 27

Second Appeal No. 324-1977

M/S Shanker Lal  Mohan Das............................................Appellant


Union of India and others...........................Defendant-Respondents

Hon'ble Pankaj Mithal,J.

This is plaintiff's Second Appeal arising from Original Suit No. 92/1969 M/S Shanker Lal Vs.Union of India and others.

The plaintiff appellant had instituted a suit for recovery of damages of Rs. 8150.73 paise only. The Trial Court had partly decreed the suit for recovery of Rs. 5,354.95 paise with proportionate cost  pending and future interest @ 5% per annum. Against the judgment and order of the Trial Court two appeals were preferred one by the defendants Union of India & others and the other by the plaintiff appellant being Civil Appeal Nos. 283/70 and Civil Appeal Nos. 402/1971 respectively. Both the appeals were clubbed together and were decided by a common judgment and order dated 21.10.1976. The appeal of the plaintiff appellant for claiming further amount of damages was dismissed and the appeal of the Union of India & others was allowed, the judgment, order and decree of the Trial court was set aside and the suit was dismissed. Thus this second appeal by the plaintiff appellant.

The facts giving rise to the present second appeal are as follows:-

i)The plaintiff appellant a registered partnership firm dealing in grains booked consignment of 166 bags of Maize weighing 152 quintals on 20.9.1964 under invoice No.1 Railway receipt No.190929 for carriage and delivery from Nizamabad in Andhra Pradesh to Sikahdara Rau.

ii)The Normal period of transit between two stations is 7 days but the consignment was delivered on 29.11.1964 i.e., after more than two moths from the date of booking.

iii)The consignment was booked during rainy season.

iv)The consignment was booked in a 'water tight' wagon which was certified as such on visual inspection both by the agent of the plaintiff-appellant and the Railway authorities.

v)The loading and unloading of the consignment was to be done by the owner and the wagon was loaded in the presence of the agent of the plaintiff-appellant.

vi)The wagon had reached the destination with all seals intact but even then consignment was found damage due to rain water having percolated inside the wagon.

In the circumstances, an issue arises as to whether the damage to the consignment was caused due to negligence of the Railway Administration and, if so, to what extent the plaintiff appellant is entitle for damages.

        The Trial Court held that the consignment was loaded in the water tight wagon which was certified as such on visual test by the agent of the plaintiff appellant and it was the responsibility of the Railway Authorities to have delivered the same in the perfect condition. Since damage to it had been caused by rain water during transit, the Railway Authorities are guilty of negligence.  The damage was assessed to the tune of Rs. 5354.95 paise. Accordingly the suit was decreed. In appeals, the Appellate Court relying upon number of decisions of the various High Courts especially AIR 1970 M.P. 58 Union of India and another Vs. Hukum Chandra and others which was a case of identical nature relating to booking of consignment with the Railway Authorities in a water tight wagon, held that there is no negligence on the part of the Railway Authorities inasmuch as  the Railway Authorities have taken due care in transporting the consignment as would have been taken by an ordinary  prudent man.

Sri A.N. Bhargawa, learned counsel for the plaintiff-appellant has argued that when admittedly water had leaked into the water tight wagon and had caused damage to the consignment, the negligence on the part of the Railway Authorities stand duly proved and therefore the lower Appellate Court manifestly erred in law in allowing the appeal of Union of India and on dismissing the suit.

I have given my anxious thought to the above submission of the learned counsel for the plaintiff-appellant and have perused the two judgments of the courts below. In such cases of booking of consignment, for delivery through Railways, a relationship of bailor or bailee arises between the parties. The Railway acts as a bailee and as such is bound to take care of the goods bailed to it as a man of ordinary prudence would have taken of his own goods as is contemplated under Sections 151 and 152  of the Contract Act, 1872 which provides as under:-

    Section-151:  Care to be taken by bailee:-

"In all cases of bailment the bailee is bound to take as much care of  the goods bailed to him as a man of ordinary produce would, under similar circumstances take, of his own goods of the same bulk, quality and value as the goods bailed."        

Section-152:  Bailee when not liable for loss, etc., of thing bailed-

"The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151."

Admittedly in the present case there is no special contract and therefore duty caste upon the Railway Authorities is simplicitor that of a bailee and unless it is proved that the Railways have failed to take care of the consignment as would have been taken by a man of ordinary prudence no negligence could be attributed to the Railways. It may be kept in mind that negligence is something more than usual carelessness.

The Appeal was admitted on 30.8.1977 i.e. after enforcement of CPC Amendment Act 104 of  1976 on 1.2.1977 and therefore the second appeal can not be decided  without formulating a substantial question of law.

Sri A.N. Bhargawa, learned counsel for the plaintiff-appellant has posed the following as the substantial question of law involved:-  whether the damage to the consignment during transit was caused due to negligence of the Railways?

The above question may not detain me long as AIR 1970 M.P. 58 Union of India and another Vs. Hukum Chandra and others is complete answer to it.

The evidence on record establishes that the consignment was booked and loaded  in the water tight wagon. The wagon was examined by the agent of the plaintiff appellant and by the officers of the Railway and after visual test the wagon was certified as water tight. It is also admitted that the wagon had reached the destination in a sealed condition with all seals intact. Therefore, the railway authorities have taken due care as provided under Section 151 of the contract Act to ensure safe and proper transit of the consignment.  

In Union of India (Supra) it has been clearly laid-down that though initially burden is upon the Railways to prove that it had taken enough care as is required under Section 151 of the contract Act in transporting the goods but once the said burden is discharged it becomes the responsibility of the plaintiff to establish that the damage was caused not only on account of the defects in the wagon but due to negligence of the Railway Authorities. It further lays-down that when the wagon was jointly examined and found to be water tight by visual test and even then the consignment was destroyed or damaged due to rain water entering the wagon, it is not sufficient to hold the Railways negligent. The court further held that visual test was sufficient to prove that the wagon was water tight and inasmuch as the term water tight is not to be understood as a guarantee for it being actually water tight. Thus the court held that the damage caused to the goods/ consignment due to leakage of water in the so called water tight wagon can not be attributed as negligence and misconduct on the part of the Railway Authorities.

In view of the aforesaid facts and circumstances and the division bench decision of the M.P., High Court in Union of India  (Supra) the substantial question of law as posed above stand already answered and as such is not to be treated  as a substantial question of law.

No other point has been argued.

The appeal is dismissed as it involved no substantial question of law.


Date: 30.7.2007


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