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The Union Of India v. M/S Bhagwan Din - SECOND APPEAL No. 1868 of 1976  RD-AH 3767 (16 February 2006)
Court No. 9
SECOND APPEAL NO. 1868 of 1976
Union of India
M/s Bhagwandin Gaya Prasad and others
Hon'ble Sunil Ambwani, J.
Heard Shri Lalji Sinha, learned Senior Advocate for appellant.
This Second Appeal arises out of judgement of District Judge, Fatehpur in Civil Appeal No. 41 of 1975 dated 9.3.1976 by which he has set aside the judgement of the Trial Court in Original Suit No. 32 of 1971 dated 19.3.1975 and has decreed the Suit for Rs. 2000/- with future pendentelite interest at the rate of 6% per annum.
The Suit was filed for shortage of goods namely K. Oil which were carried by the respondent-Railways. It is alleged that due to inefficiency and negligence of the defendants, the plaintiff was given the delivery of only 20000 litres against the consigned quantity of 24550 litres from Budge Budge Railway Station to Bindhi Road Railway Station.
The Suit was dismissed with the findings that the Railway was not responsible as it was not established that the Railway was deficient or negligent in short delivery of the booked quantity. Loading was done by consignor without supervision of Railway staff and that Railway was not responsible for wooden valve, which was not removed by Railway staff but the plaintiff. The appellate court re-assessed the evidence and found that even if the loss was due to defective capping, the Railway was responsible as it had accepted the consignment. It was found that there was no presumption in law that the goods must have been received by the consignee free from all defects. The defective packing does not give any protection to the Railway administration.
Shri Lalji Sinha, learned counsel for appellant submits that there was no deficiency of service, or negligence on the part of the railway administration. In the absence of any notice under Section 78-B of the Railway Act, the suit was not maintainable. I have gone through the judgement and find no error of law in the finding of the appellate court that
the loss was on account of railway administration which failed to take full care in supplying the wagon and that it could not be proved that the consignor had replaced the iron valve with the wooden valve. The notice under Section 78-B was duly served on the railway administration. These in may opinion are pure findings of fact which do not require any interference from the Court.
The Second Appeal is consequently dismissed.
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