Indian Kanoon - Search engine for Indian Law

1. The plaintiffs, who are commission agents residing at Delhi have by this appeal challenged the decree passed by the Civil Judge, Senior Division, at Jalgaon in Special Suit No. 12 of 1950 dismissing their suit against the Dominion of India.

2. The facts which give rise to the claim made by the plaintiffs are briefly these : One Malhari Bhika loaded a wagon at Kajgaon station on the Central Railway with raw plantains and obtained Parcel Way Bill No. 7934/79 on 21st October 1948 for carriage of the consignment to Delhi. The goods loaded by Malhari Bhika were then sold to Peer Mahomed and Sons. The Parcel Way Bill was obtained in the name of Malhari Bhika as consignor and consignees were the plaintiffs. The Forwarding Note is Exhibit 93, dated 21st October 1948, and by that Forwarding Note Malhari Bhika requested the Station Master at Kajgaon to receive and forward by passenger train the parcel described therein to Delhi Junction Station at reduced rates as per Risk Note on the reverse signed by him. The consignment was booked at reduced rates. This consignment reached Delhi on 36th October 1948. It appears that between Kajgaon and itarsi the wagon was attached to 39 Dn. Parcel Train and beyond Itarsi it was attached to a mixed passenger train. In the normal course by passenger train from Kajgaon this wagon should have reached Dehli on 23rd October 1948. On arrival at the Delhi Station the contents of the wagon were found to be damaged and the loss was estimated as of the value of Rs. 2,700/-.

3. On 22nd October 1948, peer Mahomed and Sons signed a Forwarding Note for a wagon-load of plantains from Kajgaon to Delhi By the Forwarding Note the Station Master at Kajgaon was requested to forward the wagon by passenger train. Parcel Way Bill No. 7934/83, dated 22nd October 1948. was obtained in the name Of Peer Mahomed and Sons as consignors and the consignees were the plaintiffs. This consignment was also booked at reduced rates, The wagon was loaded on 22nd October 1948 and between Kajgaon and Itarsi the wagon was attached to 33 Dn. Parcel train and at Itarsi it was attached to a mixed passenger train. In the normal course, if it had been carried by passenger train, the consignment should have reached Delhi on 24th October 1948. but it reached Delhi on 26th October 1948. and on opening the wagon the contents were found to be damaged. The loss was assessed at Rs. 4,125/-.

4. On 29th September 1948. Peer Mahomed and Sons had signed a Forwarding Note for a wagon-load of plantains from Kajgaon to Delhi. The Parcel Way Bill was No. 7933/63, dated 26th September 1948. The consignors wire Peer Mahomed and Sons and the consignees were the plaintiffs. The wagon was attached to 39 Dn. Parcel Train up to Itarsi and from Itarsi it was attached to a mixed passenger train. In the normal course, the wagon should have reached Delhi on 1st October 1946 if sent by passenger train; but it reached Delhi on 5th October 1948. On arrival at Delhi the contents of the wagon were found to be damaged and the loss was assessed at Rs. 2,200/-. By ths Forwarding Note in this case also Peer Mahomed and Sons had requested the railway administration to send the consignment by passenger train but it was sent by parcel train from Kajgaon to Itarsi. The goods were booked at reduced rates under a Risk Note.

8. Mr. Kotwal on behalf of the plaintiffs urged that the trial court was in error in holding that no breach of contract was committed by the railwav administration in not sending the goods by passenger train. In our view, that contention must be accepted. The Forwarding Notes express-ly requested the Station Master at Kajgaon to despatch the goods by passenger train and in pursuance of these Forwarding Notes the Parcel Way Bills were made out. Even it was the case of the railway administration, as is evident from the letters Exhibits 141, 143 and 111, that the son-signments of plantains had been sent by passenger train, it is undisputed that from Kajgaon to Itarsi the consignments had not been sent by passenger train but they were sent by parcel trains. 39 Dn. from Victoria Terminus, to whim the wagons were attached, is only a parcel train. It is. therefore, difficult to accept the view Of the learned trial Judge that there was no breach of contract committed by the railwav administration in sending the wagons from Kajgaon to Itarsi by a parcel train. In a recent judgment delivered by us in First Appeal No. 303 of 1952 I (Bom) (A) we have taken tha view that despatching a wagon attached to a parcel train, when tha Parcel Way Bill was issued in response to a Forwarding Note requesting the Station Master to send the consignment by passenger train, amounted to a breach of contract. Evidently, there has been great delay between the dates of despateh of the wagons and the dates when they reached Delhi. There is no clear evidence as to when the 39 Dn. Parcel train reached Itarsi with the wa-gons, and there is also no evidence as to how long the wagons were detained at Itarsi. In B. B. and C. I. Rly v. Mahaniadbhai Rahimbhai, 31 Bom. LR G16 V (AIR 1929 Born 355} (B), it Was held by this court that if a consignment of perishable goods is sent by goods train, when it was agreed between the consignor and the railway administration that the consignment was to be sent by passennger train, a breach of contract is committed bv the railway administration and that the railway administration is liable for loss suffered by the consignor.