Western India Plywoods Ltd v. Union of India — 1993 DIGILAW 428 (KER)

JUDGMENT G. Rajasekharan, J. 1. Plaintiff in a Suit for damages for short delivery of the goods transported by railway, is the Appellant. 2. Plaintiff is the Western India Ply woods Ltd., Baliapatam represented by its Deputy Managing Director, and the defendants are (1) Union of India represented by the General Manager, Southern Railway, Madras (2) The General Manager, Southern Railway, Madras and (3) The Chief commercial Superintendent, Southern Railway, Madras. 3. Plaintiff's cases in short is as follows: During the period from 17-3-1981 to 28-3-1981, 415 logs of timber covered by Railway Receipt Nos. 393915 to 393919 under Invoice Nos. 1 to 4 and 1(a) were booked in the railways for transporting from Madras to Valaptanam. The goods reached the destination on 5-4-1981. When delivery was taken, it was found that there was shortage of 30 logs having 28. 74 Cubic Metres, valued at Rs. 40,810.80. Plaintiff claims that amount with interest to be recovered from the Defendants. 4. It is contended by the defendants that the senders of the goods were supplied with Goods wagons for loading timber and railway receipts were issued with the remarks "loading not supervised by railway staff" and "said to contain", that the consignments were carried in through wagons without any interaction enroute, that at the destination unloading was done by the consignee without any supervision by the railway staff, that the railway has no liability for shortage or loss, if any, that in any event, the interest claimed is not allowable and that the Suit is liable to be dismissed. 5. The evidence in this case consists of PWs. 1 & 2 and Exts. A1 to A13, and Ext. B1 to B6. 6. The Trial Court on an appreciation of the evidence on record and on consideration of the law on the point, reached the conclusion that the plaintiff has failed to prove the actual quantity despatched, the quantity unloaded at Valapatanam, and that the defendants are not liable in damages for the alleged loss. Consequently, the Suit was dismissed. Aggrieved by that, the plaintiff has come up in Appeal. 7. It is alleged and proved that the timber in question was purchased from Andaman and it was carried to the Madras Port in ship from Port Blair. Ext. A1 is a copy of the Bill issued by the Forest & Plantation Development Corporation at Port Blair. Aggrieved by that, the plaintiff has come up in Appeal. 7. It is alleged and proved that the timber in question was purchased from Andaman and it was carried to the Madras Port in ship from Port Blair. Ext. A1 is a copy of the Bill issued by the Forest & Plantation Development Corporation at Port Blair. That was with respect to 99.823 Cubic Metres of timber. Ext. A2 is a receipt dated 5-3-1981 evidencing payment of charges for rafting the wooden logs. Exts. A3 (a) to A3(c) are receipts issued by the Shipping Corporation of India Ltd. to the plaintiff for the receipt of freight charges. All these receipts do not relate to the timber in question. The extract filed along with the receipts Exts. A3(a) to A3(c), would show that the total number of logs were 521 having a cubic content of 556.904 Cubic Metres, the total freight charges of which were Rs. 93,488/18. According to the allegations in the plaint, the quantity of timber transported by the railway was 415 logs. So, Exts. A1 to A3 and the actual transport even according to the allegations in the plaint, do not tally. Exts. B1, B3 and B5 are railway receipts which respectively show the number of logs as 167, 60 and 127. So, Exts. A1 to A3 do not help in contending that the timber purchased and brought down to Madras (the entire quantity) were transported by railway. Plaintiff would rely on the railway receipts mentioned above and Exts. B2, B4 and B6 forwarding notes, to contend that actually 415 logs were booked at Madras with the railways. For the proposition that the entire quantity was not delivered at Valapatanam, the plaintiff relies solely on the oral testimony of PW 1. There is no short delivery certificate or any other documentary evidence to indicate that actually the entire number of 415 logs were not delivered at the destination. It may be noticed that immediately after the delivery, the plaintiff was complaining with the Railway Authorities that there was short delivery and plaintiff was claiming damages in that respect. That is evidenced by Exts. A5 to A13. 8. According to the learned counsel for the appellant, actually there was short delivery and when the defendants have issued railway receipts Exts. B1, B3 & B5, together with Exts. That is evidenced by Exts. A5 to A13. 8. According to the learned counsel for the appellant, actually there was short delivery and when the defendants have issued railway receipts Exts. B1, B3 & B5, together with Exts. B2, B4 and B6, it has to be taken as proved that actually the quantity mentioned in the railway receipts were entrusted with the railways, and for the short delivery the railway is responsible. The learned counsel relied on S.73 of the Indian Railways Act 1890 to contend for the proposition that the responsibility of the Railway administration is absolute when they issued railway receipts mentioning the quantity. The said Section reads: "Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non delivery, in transits of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following, namely ....................." The exceptions are not relevant, since the parties do not rely on them. The proviso to the above Section is to the effect: "Provided that even where such loss, destruction, damage, deterioration or non delivery is proved to have arisen from any one or more of the aforesaid causes the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of animals or goods." In order to attract S.73 and cast liability with the railway administration, the first thing to be proved is that goods were delivered to the Railway Administration to be carried by railway. The next fact to be proved is that there was actual short delivery of goods. 9. As noticed earlier, to support the allegation that certain quantity of timber was delivered to the railways for transport, the plaintiff relies on Exts. B1 to B6 and the testimony of PW 2. Exts. B1, B3 and B5 railway receipts contain the remarks "loading not supervised by railway staff". Exts. B2, B4 and B6 forwarding notes further contain the remarks "loaded by sender and not tallied by trust" and also "said to contain". It is also seen from these documents that the freight charge was at the rate available for railway risk rate. 10. B1, B3 and B5 railway receipts contain the remarks "loading not supervised by railway staff". Exts. B2, B4 and B6 forwarding notes further contain the remarks "loaded by sender and not tallied by trust" and also "said to contain". It is also seen from these documents that the freight charge was at the rate available for railway risk rate. 10. Learned counsel for the respondents would argue that when it was a case of the wagons being taken on hire by the consignor and where the loading was done at the consignor's risk and when Exts. B1 to B6 contain the remarks that the loading was not supervised by railway staff and the only admission is that it is 'said to contain' that so much quantity was loaded, the railway has no responsibility to deliver at the destination the quantities mentioned in Exts. B1 to B6, and Exts. B1 to B6 are relevant only for the purpose to show that so much freight was charged on the basis of the declaration made by the sender regarding the quantity, and the railway which has only lent the wagons, has no obligation to deliver the goods at the destination. In support of this contention, learned counsel has relied on various decisions namely, Hari Sao and another v. The State of Bihar ( AIR 1970 SC 843 ). A. V. Bhatt v. Union of India ( 1990 (2) KLT 898 ), Union of India v. Chotelal Sheonath Rai (AIR 1973 Patna 244) and Union of India v. Aluminium Industries Limited (AIR 1987 Orissa 149). 11. The decision reported in AIR 1970 SC 843 is in a case where the railways complained of cheating for misdescription of certain goods transported through railway. The allegation was that the Station Master was dishonestly induced to cause a railway receipt with false particulars, which was capable of being converted into a valuable security and therefore has committed the offence under S.420 IPC. The consignor produced a forwarding note for booking a consignment of dry chilly to Calcutta. A wagon was allotted to him. Necessary allotment entries were caused to be made in the forwarding note. The loading was done by the consignor himself, without the help of any railway employee, and the consignor wanted to be supplied with rivets after the wagon was loaded. A wagon was allotted to him. Necessary allotment entries were caused to be made in the forwarding note. The loading was done by the consignor himself, without the help of any railway employee, and the consignor wanted to be supplied with rivets after the wagon was loaded. The rivets were put on the wagon and the wagon was sealed and labelled on both sides with labels prepared by the Station Master. The consignment was with the remarks "said to contain 251 bags of dry chillies." It turned out that actually what was loaded is only straw and not dry chilly and it was on that basis that the Station Master lodged the complaint punishable under S.420 IPC. After considering the various aspects of the matter and the relevant rules in Goods Tariff (Rail) General Rules, the court held that S.73 provides for the general responsibility of a railway administration as a carrier. It was further held that in the particular case, there was no cheating, since the railway did not incur any additional liability by the false representation that the consignment contained 251 bags and the issue of railway receipt was not likely to cause any damage or harm to the railway. That conclusion was reached on the premise that the railway did not incur any additional risk in acting upon a representation of the consignor and mentioning in the railway receipts the goods consigned as 251 bags of chillies. There could be no presumption that the goods put in the wagon was chillies because railway did not accept the consignment as such and described it as 251 bags allegedly containing chillies. Nor, was there any acceptance of the weight of the goods by the railway. The endorsement 'S.W.A.' would negative the plea that the weight was accepted by the railway. Endorsement "L/U" emphasised that the loading and unloading being in charge of the consignor. It was in such circumstances the court held that the railway could not be held liable for any negligence. 12. Paragraph 150 of the Goods Tariff (No. 34 - Part I) (Volume I) General Rules, provides. Endorsement "L/U" emphasised that the loading and unloading being in charge of the consignor. It was in such circumstances the court held that the railway could not be held liable for any negligence. 12. Paragraph 150 of the Goods Tariff (No. 34 - Part I) (Volume I) General Rules, provides. "The weight, description and classification of goods and quotation of rates as given in the railway receipt and forwarding note are merely inserted for the purposes of estimating the Railway charges and the Railway reserves the right of remeasurement, reweighment, reclassification of goods and recalculation of rates and other charges and correction of any other errors at the place of destination and of collecting any amount that may have been omitted" or undercharged. No admission is conveyed by a Railway Receipt that the weight as shown therein has been received or that the description of goods as furnished by the consignor is correct. (emphasis supplied) From this, it is clear that a railway receipt is issued and in the receipt the weight, measurement and other particulars were narrated only for the purpose of charging freight, and that will not and could not be taken as an admission on the part of the railway for the receipt of so much of goods, satisfying the quantity or quality mentioned in the receipt or the forwarding note. 13. Here, it has come out in evidence in this case that a few wagons were hired by the sender of the goods and the goods were loaded in the wagons by the employees of the sender. No railway employee was engaged for loading. There was no supervision also by the railways. That is made clear on the railway receipts themselves by making the remarks "loading not supervised by railway staff''. Regarding the particulars given in the forwarding note as well as railway receipts, the remark mentioned in the forwarding note is "said to contain". PW 2 who claims to have been present as an employee of the plaintiff company at the time of loading, would swear that he has noticed the remarks on the railway receipts, but he did not make any complaint regarding that. He further admits in his examination that the loading was done by the plaintiff's own employees, or the employees of the sender, namely Bay Woods Company, and not by the railway staff. So, when those remarks were made on Exts. He further admits in his examination that the loading was done by the plaintiff's own employees, or the employees of the sender, namely Bay Woods Company, and not by the railway staff. So, when those remarks were made on Exts. B1 to B6, no protest was made by PW 2 and that would indicate that the remarks made on Exts. B1 to B6 were correct. That would mean that the railway was not accepting the description of the goods, weight of the goods or the actual quantity loaded in the wagons. The weight or the description of the particulars given in the forwarding notes was accepted by The railway for the purpose of levying freight charges, and not in the way of admitting the actual entrustment of the goods with the railways. 14. It is common case that the wagons were sealed and seals were intact when they reached the destination. The plaintiff did not claim any open delivery and the unloading was done by the plaintiffs employees (which is admitted by PW 1). It is after thus unloading, that a complaint was lodged with the Railway Authorities that there was short delivery. If actually the plaintiff had a case that there was short delivery, he could have caused the wagons to be weighed at the station of destination to show the difference between the weight taken when it was loaded at Madras and delivered at Valapatanam. That was not done. At the responsibility of the plaintiff, the unloading was done and it was after the unloading, that the complaint regarding the short delivery of 30 logs of timber was made. 15. The sender of the goods was Bay woods Company. Nobody on the side of that Company was examined, nor any document produced to show that the sender had actually loaded the quantity of timber shown in Exts. B1 to B6. Instead of that, plaintiff chose to examine PW 2, who is his own employee, who would say that for the past eighteen years he was supervising the loading operations at Madras and he is one of the members of the field staff. B1 to B6. Instead of that, plaintiff chose to examine PW 2, who is his own employee, who would say that for the past eighteen years he was supervising the loading operations at Madras and he is one of the members of the field staff. When it is a case of the wagons being given to the consignor and the loading operations actually done by the employees of the consignor without the junction of the railway employee's the railway receipts and forwarding notes do not constitute for the actual evidence quantity loaded in the wagons. 16. In a similar case, considering the liability under S.73 of the Railways Act, a Division Bench of the Orissa High Court in the decision reported in AIR 1987 Orissa 149 (Union of India v. Aluminium Industries Ltd.) held that when the consignment was booked at the consignor's siding without supervision of the railway staff, the railway was not liable in damages for short delivery until the plaintiff proved actually what quantity of goods was despatched. Even the issuance of a shortage certificate will not help the plaintiff in that regard. 17. That was a case where the plaintiff therein booked 1122 pieces of aluminium ingots under a certain railway receipt on 15-6-1972 from Renukoot to Sambalpur. The consignment reached Sambalpur without the original seal and rivet, for which the plaintiff had demanded open delivery. The railway administration granted a shortage certificate. In the case filed by the plaintiff for damages in those circumstances, the court held that the plaintiff had the burden to establish the quantity actually booked at the forwarding station. The consignment having been booked at the consignor's siding and when there was absence of evidence that the loading had been done by the railway staff or under supervision of the railway staff, it was held that the railway receipt is not sufficient evidence to prove the actual quantity loaded, and the issuance of a shortage certificate at the destination does not further the case of the plaintiff in the claim of damages. 18. In the case reported in AIR 1973 Patna 244 (Union of India v. Chotelal Shewnath Rai), a consignment of one tank wagon of 565 maunds equal to 211 Quintals of groundnut oil was booked from Kharsalia railway station on 7-3-1962. 18. In the case reported in AIR 1973 Patna 244 (Union of India v. Chotelal Shewnath Rai), a consignment of one tank wagon of 565 maunds equal to 211 Quintals of groundnut oil was booked from Kharsalia railway station on 7-3-1962. When it reached the destination at Tata Nagar, the tank wagon was found leaking, Delivery was taken by depth measurement. After delivery, the oil was weighed and it was noticed that 112 maunds of groundnut oil was missing. The consignee sued the railway administration for damages in short delivery. In that case it was held that in order to determine the actual shortage, it is necessary for the plaintiff to prove the quantity of oil loaded at the sending station. The consignment was despatched under L/U condition. The oil was loaded inside the wagon by the sender at the railway siding. The railway receipt showing the quantity of the consignment as 565 maunds, was not accepted as a binding document to mulct the railway with the liability of accepting that much of oil for transporting. The entries about the weight of the consignment mentioned in the railway receipt and the forwarding note, were not treated as admission on the part of the railways about the weight carried in that consignment. 19. Similar is the case at hand, where the wagon was loaded by the sender without the supervision of the railway staff and so, the railway receipt is not sufficient proof at all, for the fact that so much quantity of timber was actually loaded in the wagons. 20. In the decision reported in 1990 (2) KLT 898 (A. V. Bhatt v. Union of India) It was held: "When goods are booked by the consignor and the information given by the consignor is accepted as correct for the purpose of charging freight, there is no admission on the part of the railway regarding the quality or quantity of the goods. Therefore, there is no admission that the description of the goods as furnished by the consignor is correct. In the absence of independent evidence regarding quality of the goods as shown in Ext. B1 railway receipt, it cannot be said that quality deteriorated in transit. It is for the consignor or consignee to adduce such evidence as they are facts within their special knowledge." 21. In the light of the decisions referred to above, Exts. In the absence of independent evidence regarding quality of the goods as shown in Ext. B1 railway receipt, it cannot be said that quality deteriorated in transit. It is for the consignor or consignee to adduce such evidence as they are facts within their special knowledge." 21. In the light of the decisions referred to above, Exts. B1 to B6 cannot be taken as documents to prove that a particular quantity of timber was actually loaded or booked with the railways. The liability under S.73 arises only when actually goods were delivered to the administration to be carried be railway. So, the plaintiff has failed in proving the actual quantity loaded for transporting. 22. Regarding the actual quantity delivered at the destination also, there is no acceptable evidence. PW 1 has admitted that the unloading work was done by the plaintiff's people and before unloading there was no weighment of the wagons. The seals of the wagons were intact. There was no demand for open delivery. The timber was unloaded at the responsibility and risk of the plaintiff himself and after taking delivery, the complaint regarding short delivery was made. No short delivery certificate is issued. Excepting the statement that there was short delivery with respect to thirty logs, there is no evidence at all to show what actually was taken delivery of at Valapatanam. 23. Learned counsel for the appellant relying on the decision in Mohan Lal v. Union of India etc. (AIR 1985 Delhi 209) has argued that the railway receipt making mention of the contents and weight of the goods is enough evidence to prove the actual quantity booked with the railways and the plaintiff is entitled to get damages as prayed for. The dictum in that decision is as follows:- "In a case where the railway booked certain goods for transit, and issued a railway receipt mentioning the extent of the goods so booked, it is for the railway to ensure that the goods were delivered back at the place of destination. They cannot take shelter under their own negligence, if any, in case railway receipts are recklessly issued, giving description and extent of goods without checking and ensuring that they are accordingly so. Of course, it is another matter that the goods are brought in packed condition, and the railways have no opportunity to open the packages and verify the contents. They cannot take shelter under their own negligence, if any, in case railway receipts are recklessly issued, giving description and extent of goods without checking and ensuring that they are accordingly so. Of course, it is another matter that the goods are brought in packed condition, and the railways have no opportunity to open the packages and verify the contents. In that case, it would appear that the railways may be entitled to challenge the contents of the goods actually brought in sealed packages." That was a case where 75 bags of sugar was booked for carrying by railway to Delhi from Baitalpur. The consignment was at the railway, risk. When the goods reached Delhi, it was found that 132 Kgs. of sugar was short in five bags. A shortage certificate was obtained to this effect. It was in that case that the court held that the railway receipt is sufficient evidence to show the actual quantity booked with the railways. It is not known whether actual loading was done by whom and whether the loading operation was actually supervised by the railway staff, whether the railway receipt contained any remarks as in the present case, namely "loading not supervised by railway staff" and "said to contain', at the destination weighment was made and it was found that the actual quantity delivered does not tally with the railway receipts. A short delivery certificate was issued. Enroute, there was transshipment and it was in those circumstances that that court held that the railway receipt in the case was sufficient evidence for the quantity consigned and coupled with the short delivery certificate, it was held that the railway has liability in damages. 24. The case on hand is totally different and there is no proof at all regarding the actual quantity loaded in the wagons supplied by the railways. There was no demand for open delivery, nor is there any evidence regarding the actual quantity delivered. The Delhi decision has not referred to the earlier decisions of the Supreme Court as well as of the various High Courts on the point. On the facts of that case, it was held that the railway receipt was sufficient evidence to prove the quantity consigned. Those facts have no bearing with the case at hand and that decision is of no help to the appellant. 25. On the facts of that case, it was held that the railway receipt was sufficient evidence to prove the quantity consigned. Those facts have no bearing with the case at hand and that decision is of no help to the appellant. 25. The result is that the plaintiff has failed in proving the actual quantity consigned with the railways. Plaintiff has also failed in showing the actual quantity delivered at the destination. In those circumstances, S.73 which could be applied only when goods were delivered to the Railway Administration, has no application and the defendants have no liability in damages. The Trial Court was right in non suiting the plaintiff, and no interference is called for. The Appeal fails and is dismissed with costs.