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 beregistered under the Indian Partnership Act. On 21/06/1969 plaintiffno, 1 tendered 281. 20 quintals of refined Ground Nut Oil to the Westernrailways at Dhoraji Factory Siding for despatch 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 Factorysiding to Delhi Sarai Rohilla vide railway receipt No. 289352, invoice No. 46dated June 21,1969. The consignee was self. Receipt was however endorsedwith the endorsement "please deliver to M/s Khedut Oil Traders" i. e. infavour or plaintiff No. 2. ( 2 ) THE said Wagon was part of 806 DN Phulera-Rewari Diesel goodstrain which derailed at the Jhilo-Dabla Section. The Wagon in question wasone of the wagons which was also derailed. On 19/10/1969 refinedground nut oil weighing 64 quintals as per weight taken at railway weighbridge, was delivered to the plaintiffs. A further delivery of 20. 90 quintalsof 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 inquestion and each time they were informed that the consigment was notreceived and was not available for delivery. On 5/07/1969 and endorsentto that effect was made on the railway receipt. The plaintiffs, however, cameto know of the derailment on Ju 5/07/1969. On the next day a representativeof plaintiff No. 2 went to the place of accident and allegedly discovered that aset 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 wheelwas lying on the other side of the railway track. It appeared that the tankwagon at the time of accident was lying on the railway line crosswise butwas subsequently placed near the railway track in a position that the top sideof 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 railwayrisk rates. The railway track make a steep curve and sloped downwards atthe spot at which the accident took place. ( 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 railwayrisk rates. The railway track make a steep curve and sloped downwards atthe spot at which the accident took place. The driver of the train was drivingthe train at a highly excessive speed and the derailment was due to negligenceand misconduct on the part of the railway and its employees. Several accidents had taken place on the same spot. Railway administration wereutterly negligent in not taking any steps to check the occurrence of accidentson 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 thesloping space, with the result that most of the oil flowed out of its mouthwhich faced downward on the sloping ground. The railway was negligent innot 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 wasdelivered only on 19/10/1969. The prices of the oil bad considerablyfallen 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 thisway the plaintiffs were entitled to Rs. 94,771. 20 on account of compensationfor non-delivery of 197. 44 quintals of ground nut oil at therateofrs. 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 priceand 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 processof delivery of available oil and rest of the amount i. e. Rs. 39,308. 80 wasclaimed towards interest. ( 5 ) THE suit was resisted by the defendants. The allegation that theplaintiff firms were duly registered under the Partnership Act was denied. Itwas averred that the suit was barred by time. 39,308. 80 wasclaimed towards interest. ( 5 ) THE suit was resisted by the defendants. The allegation that theplaintiff firms were duly registered under the Partnership Act was denied. Itwas averred that the suit was barred by time. On merits it was alleged thatthe loss of consignment had occurred because of an accidental derailmentinspite 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 ofthe provisions contained in Section 73 of the Indian Railways Act. Allegationof 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 andthe 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, causedby the negligence misconduct or carelessness of the railwayauthorities or its employees ?4. Was there any further negligence, misconduct or carelessness inhandling the suit consignment after the accident which has led tofurther loss to the plaintiffs ?5. Was there unreasonable delay in the delivery of the remaininggroundnut oil to the plaintiffs causing loss to the plaintiffs ?6. Was any of the oil delivered to the plaintiffs contaminated due tothe negligence of the defendants and if so, are the plaintiffs entitledto claim damages for the same and to the refund of demurrage orwharfage 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 demurrageor wharfage ?" ISSUE No. 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 theindian Partnership Act. It further shows that Mansukhlal Punjabhai was oneof its registered partners. Mansukhial, 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 bymansukhlal who was its registered partner. It further shows that Mansukhlal Punjabhai was oneof its registered partners. Mansukhial, 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 bymansukhlal who was its registered partner. Ex. Public Witness 1/36 is the certified copy of the entries in the register maintainedby 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 thestatement of Mansukhial Punja Bhai, PW-1, that the plaint was signed andverified 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 Bhaidewshi Bhai, who had filed the suit on behalf of plaintiff No. 2 was itsregistered partner. The issue is decided in favour of the plaintiffs. ISSUE No. 2the goods were admittedly booked for carriage on 21/06/1969. Thelimitation for filing the suit for compensation for non-delivery or delay indelivery was there years. Time begins to run from the date when the goodsought to be delivered (See Art. 11 of the Indian Limitation Act ). Section 15 (2) of the Indian Limitation Act provides that in computingthe 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 periodof the notice shall be excluded. Notice under Section 80 of the Code of Civilprocedure 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 wasreceived by General Manager, Northern Railway on 1/12/1971 and bygeneral 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 whengoods were booked, the suit filed on 11/08/1972 was well within limitation. Issue is decided against the defendants. ISSUE No. 3admittedly the wagon in which the consignment was loaded derailedon 29/06/1969 at Jhilo-Dabla Section. 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 whengoods were booked, the suit filed on 11/08/1972 was well within limitation. Issue is decided against the defendants. ISSUE No. 3admittedly the wagon in which the consignment was loaded derailedon 29/06/1969 at Jhilo-Dabla Section. The contention of the plaintiff isthat this accident was caused by negligence, misconduct or carelessness of therailway 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 plaintiffsbecause 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 accidentmay by its nature be more consistent with its being caused by negligence forwhich the defendant is responsible than by other causes and in such a case themere fact of accident is prima facie evidence of negligence. In the present case it has been admitted in the written statement that21 wagons were derailed. The derailment is not a normal feature. It is moreconsistent with its being caused by negligence of the defendant or itsemployees. This fact itself is sufficient to raise the presumption of negligenceon the part of the railways. This presumption, however, is not conclusive. Defendant was entitled to rebut this presumption. However, no such evidencehas been produced. No reason, whatsoever, for this derailment has been giveneither 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 washowever raised in the written statement. In any case there is no evidence toprove that it was an act of God. Section 73 of the Railways Act provides that railway administrationshall be responsible for the loss, destruction, damage, deterioration or nondelivery 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 thedefendants 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. 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 thedefendants 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. Thessue is decided in favour of the plaintiffs. ISSUE No. 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 thatno one was guarding the said tank wagon and the villagers were pilfering theoil from the tank. I, therefore, hold that there was further negligence orcarelessness in handling the suit consignment after the accident which has ledto further loss to the plaintiffs. The issue is decided in favour of the plaintiffs. ISSUE No. 5the goods were booked on 21/06/1969. Mansukh Lal (PW. 1) hasstated that in normal course the goods must havereached the destination bythe end of June, 1969. I see no reason to disbelieve him when there is norebuttal. Oil weghing 64 quintals was delivered on 19/10/1969 and 20. 90quintals was delivered thereafter. Thus there was undue delay in delivery ofthese goods. Moreover after the accident, admittedly, the remaining goodswere sent back to Dhoraji instead of Delhi Sarai Rohilla, the place of destination. From there the goods were sent back to Sarai Rohilla. Delhi. Noexplanation is forthcoming why the goods were not sent to Sarai Rohilla Delhiat the first instance. It has been proved that there was unreasonable delay inthe delivery of remaining ground nut oil. The issue is decided in favour ofthe plaintiffs. ISSUE No. 6mansukhlal has stated that the second consignment was sold at a lowrate of Rs. 280. 00 per quintal because the quality of oil had deteriorated becauseof 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 whichit 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 samplesfrom the said drums containing the said oil. This corroborates the statementof PW. 1. Moreover there is no evidence in rebuttal. I, therefore, hold thatthe oil weighing 20. in the second letter a request was made to the railways to take out samplesfrom the said drums containing the said oil. This corroborates the statementof PW. 1. Moreover there is no evidence in rebuttal. I, therefore, hold thatthe oil weighing 20. 90 quintals had contaminated due to negligence of thedefendants or its employees and the plaintiffs were entitled to claim damagesfor the same. PW. 1, Mansukhlal has stated that he had to pay Rs. 1525. 50 on accountof 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 wasfound 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 therailway authorities were requested to assess depreciation in the quality of oilfor the purpose of assessing the loss resulting from deterioration in transit ofthe same. The railway authorities showed utter negligence and carelessness. The letters PW. 1/14 and PW. 1/15 show that the plaintiffs had intimatedthe defendants that the quality of the goods had deteriorated; oil was givingbad smell and had certain foreign matters. It was requested that a sample bedrawn. They also requested the railway authorities for delivery on weighmentfree of wharfage charges. In my view the plaintiffs were right in requestingthe authorities for drawing samples to find out whether the goods havedeteriorated or not and also for asking for the weighment. The railways werenot justified in the circumstances to charge any wharfage or demurrage, due tothis reasonable request. The plaintiffs were entitled to refund of Rs. 1525. 50paid to the defendants towards wharfage or demurrage. Issue is decided infavour of the plaintiffs. ISSUE No. 7ex. PW 1/d-1 is the railway receipt. According to this document actualweight of the goods sent was 281 quintals 20 kg. This receipt contained anote "loading and unloading by owner, loaded directly from P/godown. Hence loading not supervised by Railway Staff. Tank fully loaded, no spaceleft 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 despatched to Delhi Sarai Rohilla Station. According to the note on the railway receipt the tank was fully loaded. Thisfact was admitted in the written statement. There is no evidence in rebuttal. 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 despatched to Delhi Sarai Rohilla Station. According to the note on the railway receipt the tank was fully loaded. Thisfact 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 lessthan 281. 20 quintals. In all the circumstances I hold that 281. 20 quintals ofthe oil was actually loaded in the wagon for carriage from Dhoraji to Delhisarai Rohilla. In para 21 of the plaint it was stated that the first consignment wasdelivered 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. Thedefendants 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 oilwas 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 instalment. In para 25 it was admitted that further delivery of 12 drums containing20. 90 quintals of oil was made in the second instalment. This fact has notbeen 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. Mansukhial, PW-1 has stated that normally the oil should havereached 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 oilvaried from Rs. 4815 to 4790. 00pertonne. Keeping in view this evidence Ithink 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 deliveryof 64 quintals of oil which was delivered on 19/10/1969. 4815 to 4790. 00pertonne. Keeping in view this evidence Ithink 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 deliveryof 64 quintals of oil which was delivered on 19/10/1969. I have alreadyheld that there was unreasonable delay in delivery of remaining ground nutoil to the plaintiffs. The plaintiffs were, therefore, entitled to compensation onaccount 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 statedthat prices had gone down in October, 1969. The oil was sold at the rateof Rs. 405. 00 perquintal. This finds corroboration from Public Witness 1/24. Theplaintiffs were, therefore, entitled to Rs. 4651-64. The plaintiffs claimed a sum of Rs. 4,180. 00for the second consignmentof 20. 90 quintals of oil. I have already held above that this consignment hadbeen 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 frombill Ex. P-1/25. The plaintiffs were, therefore, entitled to Rs. 4180. 00 towardscompensation on account of fall in market price and deterioration in qualityof 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 offurther negligence on the part of the defendant in not protecting the wagonwhich had been derailed. The plaintiffs claimed a sum of Rs. 500. 00 towards expenses incurred inthe 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. Theplaintiffs, 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. 39,208. 00towards interest. Theplaintiffs, 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 thedate 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 onthis amount at 9% per annum from 15/10/1969 till the date of decreeand 6% per annum from the date of decree till payment and costs.