Orissa High Court
Union Of India (Uoi) vs Industrial Development Corporation Of ... on 19 September, 1994
Equivalent citations: 1996ACJ593, AIR1995ORI298, 1995(I)OLR386, AIR 1995 ORISSA 298, (1996) ACJ 593 (1995) 1 ORISSA LR 386, (1995) 1 ORISSA LR 386
JUDGMENT S.K. Mohanty, J.
1. This defendant's appeal arises out of a suit for damages in respect of 81 consignments of wagon loads of cement despatched by the plaintiff company by railways to different destinations as per the schedule attached to the plaint.
2. Plaintiffs case, in brief, was that all the consignments were booked to self to different destinations and while taking delivery at the destination stations, shortage and damages to the consignments were detected. Plaintiff thereupon took delivery against damage/ shortage certificates. It is alleged that the shortage/damage was in transit due to fault and negligence of the railways. Plaintiff thereupon issued statutory notices under the Indian Railways Act and as they bore no fruit, further issued notices under Section 80 of the Code of Civil Procedure. In spite of such notice plaintiffs claim was not settled and therefore, it brought the suit for realisation of Rs. 17,430.42 paise, being the value of the goods damaged and short delivered; along with interest of Rs. 261/-.
3. While contesting plaintiff's claim, defendant contended that all the consignments were booked in full wagon loads, loaded by the plaintiff in its railway siding and the wagons were received at the destinations station with seals in tact and were unloaded by the plaintiff. Thus the railways never personally handled the goods. As such, the alleged loss or damage to the goods was due to plaintiff's negligent handling or the goods being in defective condition or having been defectively packed and for such reasons, the defendant cannot be made liable. It is further contended that the damage/shortage certificates issued by the railways besides being without prejudice, do not amount to acknowledgment of defendant's liability and in above facts, plaintiff's suit basing on the certificates is liable to be dismissed.
4. The learned Subordinate Judge came to find that the suit consignments were booked under railway risk, and disbelieving the defence evidence that the wagons reached the destination stations in tact on the ground of issue of shortage certificates, held that the damage/shortage to the goods was caused through negligence of the railways. Ultimate-
ly the learned Subordinate Judge allowed plaintiffs claim for which original damage/ shortage certificates had been filed and accordingly decreed plaintiff's suit in part for Rs. 9,858.48 paise with future interest at 6 per cent per annum. The present appeal is directed against such decree.
5. Mr. Pal for the defendant-appellant argued that the wagons having reached destination station with seals in tact and plaintiff having not led any evidence to show the weight of the goods, their condition and if they were properly packed at the time of despatch, plaintiffs suit basing on damage/ shortage certificate should have been dismissed. He submitted that in this connection, the learned Subordinate Judge has wrongly cast the onus on the defendant of proving the above aspects at the time of loading and should not have jumped to the inference of damages during transit merely basing on the certificate.
6. It is not disputed at the hearing that the suit consignments, 81 in number were booked on different dates between 1970 and 1972, there is a railway track from Bargarh Railway Station to the plaintiffs factory and at its siding the cement bags in question were loaded in fully covered leak-proof wagons by the plaintiffs people, and all the consignments were sent in full wagon-loads.
7. P. W. 1 claims to be a Clerk in the Sales Department in plaintiff's factory. He further claims that previously he was in charge of railway loading and that at the time of loading of the suit consignments, the goods Clerk of the Railway was present to check the condition of the goods, number of bags and other details. According to him, after loading the Railway Seal Man seals the wagons after satisfaction of the Booking Clerk. As against above evidence, D.W. 1 a Goods Clerk of the Railways has stated that plaintiff's labourers complete the loading and in presence of their officer Goods Clerk do not verify the bags. He has further asserted that all the wagons containing the suit consignments reached the destination stations intact.
P.W.3 claimed that during the relevant years he was serving in the plaintiffs branch at Tata and was taking delivery of the consignments meant for nearby places like Ranchi, Chakradharpur and Tata. In his examination-in-chief he has vaguely stated that at the time of verifying the wagons he found some seals broken. He, however, could not remember and say as to how many seals had been tampered. He has not pin-pointed as to in which consignments seals in the wagons were either broken or tampered. He admits that there do not exist any document to show that at the destination stations seals in any wagon were found tampered or broken. Further more, plaintiff has not alleged in the plaint any such tampering or damage of seals. In such background, the statement on oath of D. W. 1, the Goods Clerk of the defendant railways that all the wagons reached the destination station intact has to be accepted.
8. Curiously enough, in the suit, the railway receipts have not been proved by either party to show wrigings thereon and the plaintiff has based his claim only on the damage/ shortage certificate issued by the railways. Under Section 72 of the Indian Railways Act, 1890, a sender while delivering goods to railways for despatch, is to execute a forwarding note giving particulars of the goods delivered. The railway receipt is issued on the basis of informations furnished in the forwarding note for the purpose of estimating the railway charges and no admission is conveyed thereunder either about the weight or description of the goods stated therein. Consequently, the liability of the railways cannot be fastened basing on the railway receipt. In a given case in respect of full wagon-load consignments in close and leak-proof wagons, if they are found intact at the distination station, then responsibility for the shortage/damage, can be fastened on the railways only if the railway staff had loaded the goods after verification, or loading was done under their personal supervision. In the case at hand, the plaintiff has not come forward with a positive stand in the plaint that loading of cement bags in the wagons, though made by plaintiff's labourers, was duly supervised by the proper railway authorities and only after satisfaction about the number and condition of the cement bags, the seals were put to the wagon and the railway receipts were granted. In such backgound, the wagon evidence of PW 1 that at the time of loading of the suit consignment which were 81 in number, the goods clerk of the railway was present and he checked number of bags and their conditions is not acceptable.
9. Admittedly, the shortage/damage certificates have been issued 'without prejudice' meaning without prejudice to the railways' liability. Such certificates cannot be construed as admission of negligence/misconduct by the railway in dealing with the consignments much less as acknowledgment of liability. They merely show the condition of goods at the time of delivery by the railways and by themselves are no proof either of the quantity or condition of goods at the time of booking. In order to fasten liability on railways for shortage/damage, the plaintiff must first prove actual loss or damage and then shortage/damage certificate is to be looked into for determining the measure of damages.
10. In the case at hand, in order to succeed it was incumbent on the plaintiff to lead evidence as to the quantity of cement bags loaded and their conditions at the time of loading. Railway receipts and shortage/ damage certificates are no substitutes for such evidence. That being so, even if it is accepted that quantity of cement bags as claimed by the plaintiff has been indicated in the railway receipts, basing merely on the shortage/ damage certificates, it cannot be said that the plaintiff has proved the actual loss or quantum of damage to entitle himself to a decree. There being no other evidence on above point, the plaintiff suit must fail.
11. In the result, the appeal is allowed and the judgment and decree of the Court below are set aside. In the fact of the case, parties shall bear their own costs.