Judgment :- The plaintiffs in O.S. No. 2762/ 1977 on the file of the 8th Asst. Judge, City Civil Court, Madras are the appellants in this appeal against the dismissal of the suit. The said suit for recovery of a sum of Rs. 16, 787.16 was preferred on the basis that the tractors sold by Messrs. Tractors and Farm Equipment Limited, Madras to the first plaintiff were sent from Madras to Sambalpur through the defendant railways for being delivered to the first plaintiff, at Samhalpur and that at the time of delivery of goods at Sambalpur, there was shortage in the goods delivered. The first plaintiff is the consignee of the goods and he claimed loss sustained due to the above said shortage. The second plaintiff is the insurance company with whom the said tractors were insured. The second plaintiff had already paid the loss sustained by the first plaintiff based on the shortage certificates issued by the defendants under Ex. B.1 and Ex. B.2 in respect of the two consignments of the abovesaid tractors. Hence the second plaintiff is also making the suit claim. 2. The court below has held that the abovesaid shortage was due to the negligence on the part of the defendants (railways) but negatived the suit claim only on the basis that the consignee, the first plaintiff, cannot maintain the present action and only the consignor namely the abovesaid Tractors and Farm Equipment Limited, Madras can maintain an action. Then court below came to the abovesaid conclusion on the footing that the first plaintiff became the owner of the consignments of the above said tractors only after the abovesaid shortage in transit was found. 3. So, the only question to be decided in this appeal is whether the first plaintiff and consequently, the second plaintiff on the footing of subrogation could maintain this action. Now, the facts necessary to resolve this question may be seen. As already indicated, there were two consignments of the abovesaid tractors. The first consignment was despatched on 17-1-1974 as per Ex. B.6 railway receipt and the second consignment was despatched on 21-6-1974 as per Ex. B6 railway receipt. The Railway Receipts were in favour of "selves" i.e., in favour of the consignor himself. As already indicated, there were two consignments of the abovesaid tractors. The first consignment was despatched on 17-1-1974 as per Ex. B.6 railway receipt and the second consignment was despatched on 21-6-1974 as per Ex. B6 railway receipt. The Railway Receipts were in favour of "selves" i.e., in favour of the consignor himself. The Railway Receipts were sent to the consignee (First Plaintiff) through the bank as deposed by P.W. 2 the packing supervisor of the consignor, Tractors and Farms Equipment Limited, Madras. As per the evidence of P.W. 2 with reference to the first consignment the consignee has taken delivery of the relevant railway receipts from the Bank on 14-2-1974 after making necessary payment to the Bank. His further evidence is that with reference to the second consignment, the first plaintiff has taken delivery of the relevant railways receipt from the Bank in August 1974 after paying the necessary amounts to the Bank. The evidences of P. W. 2 further shows that with reference to the first and second consignment, the goods were unloaded at Sambalpur on 7-2-1974 and 14-7-1974 respectively and at the time when the goods were unloaded, open delivery was given. 4. The learned counsel for the appellants argues that the court below erred in holding that the first plaintiff consignee and consequently the second plaintiff are not entitled to maintain this action on the ground that the shortage in question was caused prior to the date when the first plaintiff became the owner of the consignments in question. (According to the court below, the first plaintiff became the owner of the first, and second consignments only on 14-2-1974 and in August, 1974 respectively while the respective shortages were found at time of unloading even earlier i.e., on 7-2-1974 and 14-7-1974 respectively). The said counsel, relied on 1965 AIR(Madras) 162 (Bench Decision) 1956 AIR(All) 338 (FB) and 1990. ACC CJ 310 (Andh Pra) to point out that the Court below erred in holding that the first plaintiff cannot maintain this action. He also drew my attention to the fact that there was no cross-examination of P.W. 2 on the question of passing of title from the consignor to the consignee. 5. ACC CJ 310 (Andh Pra) to point out that the Court below erred in holding that the first plaintiff cannot maintain this action. He also drew my attention to the fact that there was no cross-examination of P.W. 2 on the question of passing of title from the consignor to the consignee. 5. The learned counsel for the respondents relied on 1972 AIR(Orissa) 101which was, relied on by the court below, and argued that the court below was right in having held that the first plaintiff could not maintain this action. 5A. I have considered the rival submissions J. K.M. Yacob Rowther Sons v. Union of India. In 1965 AIR(Mad) 162 a Division Bench of this Court has held as follows (Paras 7, 8, 10 and 12) "It is settled law that where under a contract of sale, goods are delivered by the seller to the railway for carriage in order to effect delivery, the railway is ordinarily treated as the agent of the buyer to receive the goods from the seller. As has been stated in Benjamin on sales, 8th Edn. page 737, it was well established as common law that delivery to a common carrier, and a fortiori to one specially designated by the buyer, would be delivered to the buyer himself; the carrier being in contemplation of law, the bailee of the person to whom, not of the person by whom, the goods are sent. This principle is embodied in Section 39 of the Indian Sale of Goods Act. "* Therefore, it can be taken that where property in the goods had passed to the buyer, on delivery to the railway, the letter should have to be regarded as bailee to the owner of the goods, namely the consignee"............... ......." A Railway receipt will no doubt entitle the person who is named in it as the consignee or an endorsee to receive the goods, by the terms of the contract of bailment such a person could even relieve the railway of all liability. But where he has not so done and where the question of suing for loss arises the principle must be that he who sustained the loss must sue ......... ....... But, where under a contract of sale, the property in the goods has passed on delivery to the railway, the latter receives it as the agent of the buyer. But where he has not so done and where the question of suing for loss arises the principle must be that he who sustained the loss must sue ......... ....... But, where under a contract of sale, the property in the goods has passed on delivery to the railway, the latter receives it as the agent of the buyer. The bailor will then be deemed be the buyer himself. The fact that the contract of carriage had been entered into by the seller or consignor, would, not in that case disentitle the consignee to sue, as in this country third party "for whose benefit the contract had been made, could sue on it". (Emphasis supplied) 5B. In the present case, regarding passing of title of the goods from consignor to the consignee it should be noted that when P. W. 2 the consignor's employee was examined, the defendants in the cross-examination did not suggest that only at a particular point of time, title to the goods did pass to the consignee. So, the court below erred in holding that the ownership passed on to the consignee only on 14-2-1974 and in August, 1974 in respect of the first and second consignments respectively. When there is no clear evidence as to when actually the title passed on to the buyer consignee, in the light of the relevant provisions of the Sale of Goods Act (sic). However, as per the abovesaid Bench Division where the question of suing for loss arises, the principle must be that he who sustains the loss must sue. In the present case, it is the first plaintiff-consignee who has sustained the loss since even according to the counsel for the respondents, the first plaintiff had already became the owner of the consignments at least before filing the suit. 6. In 1966 AIR(SC) 395, (Union of India v. West Punjab Factories Ltd.) it has been no doubt held as follows (Para 10):- "Ordinarily it is the consignor who can sue if there is damage to to consignment, for the contract of carriage in between the consignor and the railway administration where the property in the goods carried has passed from the consignor to some one else the other person may be able to sue .............................................. Whether title to goods has passed from the consignor to the consignee will depend upon the facts of each case."* However, it must be noted that in the above decision of the Supreme Court it has not been held that only when the consignee becomes the owner of the goods before the occurrence of shortage or damage, he is entitled to sue for compensation in terms of the shortage or damage. 6A. Further in 1956 AIR(All) 338, *** a Full Bench of Allahabad High Court has held that a consignee, who is not the owner of the goods but to whom the goods are consigned for purpose of sale on commission basis is entitled to maintain the suit for loss in respect of the damage caused to the goods in transit. ***(Dominion of India v. M/s. Gaya Pershad), 1956 AIR(All) 338. 6B. In 1990 Acc CJ 310 (Andh Pra) (Globe Transport Corporation v. National Insurance Company) the goods transported through a common carrier under self drawn consignment note (as in the present case), were damaged in transit and the carrier contended that purchaser who had become the owner of goods subsequent to the occurrence of the loss could not sue the carrier for the loss. Purchaser paid the invoice price, took the way bill and obtained delivery of the goods from the carrier. The question was whether the suit by the purchaser against the carrier for shortage of goods is maintainable. Thus, the facts in the abovesaid case are similar to the present case. The decision of the Andhra Pradesh High Court in the said is that the said purchaser can maintain the suit. It has been held therein that, the purchaser became the owner of the goods by transfer, before the contract of carriage came to an end, and the liability of the carrier is not contractual but based on public employment and he is liable to the person who obtained the right to take delivery of the goods. In coming to the abovesaid conclusion, the High Court of Andhra Pradesh followed the House of Lords case reported in 1916 (1) AC 189. The above said Andhra Pradesh decision squarely applies to the facts of the present case. In coming to the abovesaid conclusion, the High Court of Andhra Pradesh followed the House of Lords case reported in 1916 (1) AC 189. The above said Andhra Pradesh decision squarely applies to the facts of the present case. Further observation, in the abovesaid case is as follows:- "The test in this case is not the passing of ownership and the rules relating to passing of title in the goods under the Sale of Goods Act are not relevant. The criterion is whether a person can demand delivery from the carrier. If so, he is entitled to sue the carrier in respect of his breach of public employment for loss of goods or non-delivery."* 7. Therefore, it is clear to me that the plaintiffs can maintain this action. The decision relied on by the Court below namely, 1972 AIR(Orissa) 101 (Mohd. Jaffer Haji Ibrahim v. Union of India) turned on its own facts which are different from the present one. That decision was no doubt given in a suit against the Railway where the consignment was made by the consignor at Hapur to be delivered to "SELF" at Cuttack. Further, the consignor was to arrange delivery of the goods to the consignee at Cuttack and the consignor was authorised to sue the Railways if there is any damages or shortages. But the consignee filed the suit claiming damages from the Railways for the loss caused to the consignment. Further, passing of title was also intended to be deferred till arrival of the consignment at Cuttack. In the peculiar facts of the said case, it was no doubt held that the suit could not be maintained by the consignee since the loss occurred to the consignment before it reached to Cuttack i.e., before the transfer of the ownership right to the consignee. The said decision is not applicable to the present case in which the facts are different, as stated above. 8. The net result is that the Judgment and decree of the Lower court in so far it held that the plaintiffs cannot maintain this suit, is set aside and the suit is decreed, as prayed for, with costs in favour of the plaintiffs and the appeal is allowed with costs throughout. Appeal allowed.