Delhi High Court
Khedut Oil Cake Industries And Anr. vs Union Of India on 25 March, 1987
Equivalent citations: AIR1988DELHI88, 32(1987)DLT297, AIR 1988 DELHI 88, (1987) 32 DLT 297 (1988) ACJ 645, (1988) ACJ 645
JUDGMENT G.C. Jain, J.
(1) M/S. Khedut Oil Cake Industries, Plaintiff No. 1, andM/s. Khedul Oil Traders, plaintiff No. 2, are partnership firms stated to be registered under the Indian Partnership Act. On 21/06/1969 plaintiffNo, 1 tendered 281 .20 quintals of refined Ground Nut Oil to the Western Railways at Dhoraji Factory Siding for dispatch to Delhi Sarai Rohilla viaMSH-RE. The said oil was loaded in tank Wagon No. BVOIL-NE-46865and was booked by the officials of the Western Railway ex Dhoraji Factory Siding to Delhi Sarai Rohilla vide railway receipt No. 289352, invoice No. 46 dated June 21,1969. The consignee was self. Receipt was however endorsed with t (2) The said Wagon was part of 806 Dn Phulera-Rewari Diesel good strain which derailed at the Jhilo-Dabla Section. The Wagon in question was one of the wagons which was also derailed. On 19/10/1969 refined ground nut oil weighing 64 quintals as per weight taken at railway weighbridge, was delivered to the plaintiffs. A further delivery of 20.90 quintals of oil, stated to be in badly damaged condition mixed with foreign matters,was made subsequently.
(3) The plaintiffs made enquiries about the delivery of the goods in question and each time they were informed that the consignment was not received and was not available for delivery. On 5/07/1969 and end rosette that effect was made on the railway receipt. The plaintiffs, however, came to know of the derailment on Ju 5/07/1969. On the next day a representative of plaintiff No. 2 went to the place of accident and allegedly discovered that asset of 4 wheels of the tank wagon, is which the goods in question were loaded,was lying on one side of the railway line while the other set of the 4 wheel was lying on the other side of the railway track. It appeared that the tank wagon at the time of accident was lying on the railway line crosswise but was subsequently placed near the railway track in a position that the top side of the tank wagon was lying on the sloping space with downward level.
(4) On August 11, 1972 the plaintiffs brought this suit for recovery ofRs. l,45,000.00. It was averred that the goods had been booked at railway risk rates. The railway track make a steep curve and sloped downwards at the spot at which the accident took place. The driver of the train was driving the train at a highly excessive speed and the derailment was due to negligence and misconduct on the part of the railway and its employees. Several accidents had taken place on the same spot. Railway administration were utterly negligent in not taking any steps to check the occurrence of accident son that spot. It was further averred that the wagon in question was negligently and carelessly placed in the position, namely its top side lying on the sloping space, with the result that most of the oil flowed out of its mouth which faced downward on the sloping ground. The railway was negligent in not taking any steps to prevent pilferage or to stop flowing down of the oil.It was further alleged that 62.86 quintals and not 64 quintals of oil was delivered only on 19/10/1969. The prices of the oil bad considerably fallen down and the plaintiffs suffered loss on account of delay in delivery.It was further averred that 20.90 quintals of oil which was delivered lateron, was damaged oil and could be sold only at Rs. 280.00 per quintal. In this way the plaintiffs were entitled to Rs. 94,771.20 on account of compensation for non-delivery of 197.44 quintals of ground nut oil at the rate of Rs.480.00per quintal; a sum of Rs. 4,714.50 on account of delay in the delivery of62.86 quintals of oil; a sum of Rs. 4.180.00 on account of fall in market price and deterioration in quality of 20.90 quintals of oil delivered later on and asumofRs.1,525.00 on account of demurrage charged paid by the plaintiffs.A sum of Rs. 500.00 was claimed on account of expenses incurred in the process of delivery of available oil and rest of the amount i.e.Rs. 39,308.80 was claimed towards interest.
(5) The suit was resisted by the defendants. The allegation that the plaintiff firms were duly registered under the Partnership Act was denied. It was averred that the suit was barred by time. On merits it was alleged thatthe loss of consignment had occurred because of an accidental derailment in spite of the reasonable foresight and care for the carriage of the goods.The railway administration was thus not liable for the alleged loss in view of the provisions contained in Section 73 of the Indian Railways Act. Allegation of negligence and misconduct on the part of the railway employees were alsodenied.
(6) On the pleadings of the parties the following issue were framed :-
" 1.Are the plaintiffs registered partnership firms and is the plaintsigned, verified and presented by properly authorised persons and the suit otherwise validly instituted ?
2.Whether the suit is barred by time ?
3.Was the loss of the groundnut oil in suit due to the accident, caused by the negligence misconduct or carelessness of the railway Authorities or its employees ?
4.Was there any further negligence, misconduct or carelessness in handling the suit consignment after the accident which has led to further loss to the plaintiffs ?
5.Was there unreasonable delay in the delivery of the remaining groundnut oil to the plaintiffs causing loss to the plaintiffs ?
6.Was any of the oil delivered to the plaintiffs contaminated due to the negligence of the defendants and if so, are the plaintiffs entitled to claim damages for the same and to the refund of demurrage or wharf age paid in respect of the same ?
7.To what relief are the plaintiffs entitled :-(a) for damages on account of loss in the accident :(b) out of the further negligence thereafter :(c) on account of delay in the delivery of the balance of suitconsignment;(d) on account of the contaminated oil and refund of demurrage or wharfage ?"
ISSUENo. 1Ex. Public Witness 1/1 is the certified copy of the entries in the register of firms.It shows that M/s. Khedut Oil Cake Industries was duly registered under the Indian Partnership Act. It further shows that Mansukhlal Punjabhai was one of its registered partners. Mansukhlal, PW-1 deposed that he had signed theplaint at points A and B. From this evidence it has been proved that plaintiffNo. 1 was duly registered firm and the plaint bad been signed and verified by Mansukhlal who was its registered partner.Ex. Public Witness 1/36 is the certified copy of the entries in the register maintained by the Registrar of Firms which shows that M/s. Khedut Oil Traders,plaintiff No. 2, was a registered firm. It further shows that Gangji BhaiDewshi Bhai was one of its registered partners. It has been proved from the statement of Mansukhlal Punja Bhai, PW-1, that the plaint was signed and verified by Gangji Bhai Dewshi Bhai on behalf of the plaintiff No. 2. 1, thererefore, hold that plaintiff No. 2 was also a registered firm and Gangji Bhai Dewshi Bhai, who had filed the suit on behalf of plaintiff No. 2 was its registered partner. The issue is decided in favor of the plaintiffs.
ISSUENo. 2The goods were admittedly booked for carriage on 21/06/1969. The limitation for filing the suit for compensation for non-delivery or delay in delivery was there years. Time begins to run from the date when the good sought to be delivered (See Art. 11 of the Indian Limitation Act).Section 15(2) of the Indian Limitation Act provides that in computing the period of limitation for any suit of which notice has been given in accordance with the requirement of any law for the time being in force the period of the notice shall be excluded. Notice under Section 80 of the Code of Civil Procedure was necessary in this case. Notice under Section 80 dated 30/11/1971 (copy Ex. Public Witness 1/35) was actually issued by the plaintiffs. It was received by General Manager, Northern Railway on 1/12/1971 and by General Manager, Western Railways on 12/12/1971 (See Ex Public Witness 1/35Aand Public Witness 1/35B). The plaintiffs were therefore entitled to exclude the noticeperiod. In other words the suit could be filed within three years and twomonths. Even if the period was counted from 21/06/1969, the date when goods were booked, the suit filed on 11/08/1972 was well within limitation. Issue is decided against the defendants.
ISSUENo. 3Admittedly the wagon in which the consignment was loaded derailed on 29/06/1969 at Jhilo-Dabla Section. The contention of the plaintiff is that this accident was caused by negligence, misconduct or carelessness of the railway authorities or its employees.Normal rule is that it was for the plaintiff to prove the negligence.However in some cases this rule causes considerable hardship to the plaintiffs because it may be that the true cause of accident lies solely within the knowledge of the defendant who caused it. This hardship is avoided to a considerable extent by the principle of Res Ipsa Loquitur. It means that an accident may by its nature be more consistent with its being caused by negligence for which the defendant is responsible than by other causes and in such a case the mere fact of accident is prima facie evidence of negligence.In the present case it has been admitted in the written statement that 21 wagons were derailed. The derailment is not a normal feature. It is more consistent with its being caused by negligence of the defendant or itsemployees. This fact itself is sufficient to raise the presumption of negligence on the part of the railways. This presumption, however, is not conclusive.Defendant was entitled to rebut this presumption. However, no such evidence has been produced. No reason, whatsoever, for this derailment has been given either in the written statement or in the evidence. In cross-examination ofPW. 1 a suggestion was made that it was an act of God. No such plea was however raised in the written statement. In any case there is no evidence to prove that it was an act of God.Section 73 of the Railways Act provides that railway administration shall be responsible for the loss, destruction, damage, deterioration or no delivery in transit, of goods except in cases mentioned in clauses (a) to (i).There is no plea in the written statement that this case falls in any of theseexceptions. The provisions contained in Section 73, therefore, do not help the defendants at all.I consequently, hold that the loss of ground nut oil in suit was due tonegligence, misconduct or carelessness of the railways or its employees. The issue is decided in favor of the plaintiffs.
ISSUENo. 4In view of the finding on issue No. 3 this issue is not much relevant.However the evidence of PW. 1 Mansukial read with photographs proves that no one was guarding the said tank wagon and the villagers were pilfering the oil from the tank. I, therefore, hold that there was further negligence or carelessness in handling the suit consignment after the accident which has led to further loss to the plaintiffs. The issue is decided in favor of the plaintiffs.
ISSUENo. 5The goods were booked on 21/06/1969. Mansukh Lal (PW. 1) has stated that in normal course the goods must have reached the destination by the end of June, 1969. I see no reason to disbelieve him when there is norebuttal.Oil weighing 64 quintals was delivered on 19/10/1969 and 20.90quintals was delivered thereafter. Thus there was undue delay in delivery of these goods. Moreover after the accident, admittedly, the remaining goods were sent back to Dhoraji instead of Delhi Sarai Rohilla, the place of destination. From there the goods were sent back to Sarai Rohilla. Delhi. No explanation is forthcoming why the goods were not sent to Sarai Rohilla Delhi at the first instance. It has been proved that there was unreasonable delay in the delivery of remaining ground nut oil. The issue is decided in favor of the plaintiffs.
ISSUENo. 6Mansukhlal has stated that the second consignment was sold at a low rate of Rs. 280.00 per quintal because the quality of oil had deteriorated because of the poor quality of drums in which it was sent. Plaintiffs sent lettersEx. Public Witness 1/14 and 1/15 dated 24th and 25/10/1969 respectively in which it was clearly stated that the oil had deteriorated and was giving bad smell.in the second letter a request was made to the railways to take out samples from the said drums containing the said oil. This corroborates the statement of PW. 1. Moreover there is no evidence in rebuttal. I, therefore, hold thatthe oil weighing 20.90 quintals had contaminated due to negligence of the defendants or its employees and the plaintiffs were entitled to claim damages for the same.PW. 1, Mansukhlal has stated that he had to pay Rs. 1525.50 on account of demurrage and wharfage. This finds support from the receipt Public Witness 1/23.In para 26 of the plaint it was pleaded that the oil in 12 drums was found to be in a very badly damaged condition mixed up with several foreignmatters. This fact was brought to the notice of the railway authorities and the railway authorities were requested to assess depreciation in the quality of oil for the purpose of assessing the loss resulting from deterioration in transit of the same. The railway authorities showed utter negligence and carelessness.The letters PW. 1/14 and PW. 1/15 show that the plaintiffs had intimated the defendants that the quality of the goods had deteriorated; oil was giving bad smell and had certain foreign matters. It was requested that a sample bedrawn. They also requested the railway authorities for delivery on Weightmint free of wharfage charges. In my view the plaintiffs were right in requesting the authorities for drawing samples to find out whether the goods have deteriorated or not and also for asking for the weighment. The railways were not justified in the circumstances to charge any wharfage or demurrage, due to this reasonable request. The plaintiffs were entitled to refund of Rs. 1525.50paid to the defendants towards wharfage or demurrage. Issue is decided in favor of the plaintiffs.
ISSUENo. 7Ex.PW 1/D-1 is the railway receipt. According to this document actual weight of the goods sent was 281 quintals 20 kg. This receipt contained a note "Loading and unloading by owner, loaded directly from P/Godown.Hence loading not supervised by Railway Staff. Tank fully loaded, no space left for. Further loading not available. Hence charged accordingly." PW-1has stated that 282 quintals of ground nut oil was booked by plaintiff No. 1at Dhoraji and the same was dispatched to Delhi Sarai Rohilla Station.According to the note on the railway receipt the tank was fully loaded. This fact was admitted in the written statement. There is no evidence in rebuttal.There is no evidence to show that capacity of the wagon in question was less than 281.20 quintals. In all the circumstances I hold that 281.20 quintals of the oil was actually loaded in the wagon for carriage from Dhoraji to Delhi Sarai Rohilla.
In para 21 of the plaint it was stated that the first consignment was delivered and it weighed 64 quintals at the railway weigh bridge. In para 22it was stated that later its weight was found to be 62.86 quintals only. the defendants in their written statement averred that the oil weighed 64 quintals atthe railway weigh bridge. In view of the admitted fact that the weight of the oil was 64 quintals at the railway weigh bridge I think the plaintiffs must themselves be held responsible for the shortage, if any, at the time of its sale.I, therefore, hold that 64 quintals of oil was delivered in the first Installment.In para 25 it was admitted that further delivery of 12 drums containing20.90 quintals of oil was made in the second Installment. This fact has not been disputed. Thus it has been proved that out of 281.20 quintals only84.90 quintals of the oil had been delivered and there was non-delivery of196 30 quintals.The plaintiffs have claimed compensation at the rate of Rs.480.00 perquintal. Mansukhlal, PW-1 has stated that normally the oil should have reached in the end of June, 1969 and that the rate in those days was Rs. 480.00per quintal. PW-2 is the Office Secretary of Vegetable Oil Traders' Association (Regd.). He deposed that on 24/06/1969 the rate of ground nut oil varied from Rs. 4815 to 4790.00pertonne. Keeping in view this evidence I think it would be reasonable if I allow compensation at the rate of Rs. 479.00per quintal. The amount would come to Rs. 94,027.70.The plaintiffs has claimed Rs, 4,714.50 as compensation for late delivery of 64 quintals of oil which was delivered on 19/10/1969. I have already held that there was unreasonable delay in delivery of remaining ground nut oil to the plaintiffs. The plaintiffs were, therefore, entitled to compensation on account of fall in the market price because of the belated delivery.It has already been held that the market rate of ground nut oil wasRs. 479.00 per quintal in the end of June, 1969. The plaintiffs have stated that prices had gone down in October, 1969. The oil was sold at the rate of Rs. 405.00 per quintal. This finds corroboration from Public Witness 1/24. the plaintiffs were, therefore, entitled to Rs. 4651-64.The plaintiffs claimed a sum of Rs. 4,180.00for the second consignment of 20.90 quintals of oil. I have already held above that this consignment had been damaged and the damage was caused due to negligence of the defendant.The plaintiffs have stated that this oil was sold to Bharat Oil Traders on 4/11/1969 at Rs. 280.00 per quintal. This finds corroboration from bill Ex. P-1/25. The plaintiffs were, therefore, entitled to Rs. 4180.00 towards compensation on account of fall in market price and deterioration in quality of 20.90 quintals of oil.I have already allowed full compensation for the goods not delivered.The plaintiffs were, therefore, not entitled to any amount on account of further negligence on the part of the defendant in not protecting the wagon which had been derailed.The plaintiffs claimed a sum of Rs. 500.00 towards expenses incurred in the process of delivery of oil. In my view there was no justification for thisclaim. This is not allowed.The plaintiffs have claimed a sum of Rs. 39,208.00towards interest. the plaintiffs, in my view, are entitled to interest on the amount awarded above.I think it would be reasonable if interest was allowed at 9% p.a. from 15/10/1969 till the date of decree and thereafter at 6% per annum.
(7) I consequently, hold that plaintiffs are entitled to Rs. 1,04,384.84with interest on this amount at 9% per annum from 15/10/1969 till the date of decree and at 6% per annum from the date of decree till payment.
(8) In conclusion I pass a decree for Rs. 1,04,384.84 with interest on this amount at 9% per annum from 15/10/1969 till the date of decree and 6% per annum from the date of decree till payment and costs.
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