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2001 DIGILAW 20 (MAD)

Hanif and Co. v. Union of India

2001-01-05

K.SAMPATH

body2001
Judgment :- The Civil Miscellaneous Appeal arises out of O.A.I./1125/91 filed by the Appellant herein before the Railways Claims Tribunal, Madras Bench, claiming compensation towards short delivery of goods consigned by the respondent/Railway. 2. The case of the appellant was as follows : It was the (engrossed) consignee/purchaser of 123 bags of Gram Dhall sent from New Delhi to Tirupattur under Railway Receipt. Ex. B-2. At the destination, only 112 bags were delivered. A shortage certificate, Ex. A-2, was issued by the Station Master, Tirupattur. The value of the same was Rs. 6,831/-. This amount atogether with the freight charges of Rs. 495/- totalling Rs. 7,326/-, was due from the respondent/Railway. The respondent/Railway had also answered the claim notice under the original of Ex. A-3, under Section 78-B of the Indian Railways Act by offering to settle the claim under Ex. A-5. As the claim did not materialises, the application came to be filed. The grounds on which the relief was claimed were that shortgage had occurred due to the negligence and misconduct on the part of the railway servants while the consignment was in transit and in the custody of the respondent, that the liability of the respondent being that of an insurer, it was liable to compensate the loss, that the respondent had not taken reasonable foresight and care in transporting the consignment, that the consignment was carried in a non-water tight wagon and unfit one for transport of essential commodities, that there was an inordinate delay in the transit of the consignment, and that the respondent having accepted the negligence by making a part payment, was liable to reimburse the loss in full. 3. The respondent resisted the claims by filing a reply statement which was to the following effect: The consignor booked one wagon said to contain 123 bags of Gram Dhall under Invoice No. 6, Railway Receipt No. 155980 of 4-5-1988 from New Delhi to Tirupattur. The administration supplied a good covered wagon SCC. 14561 and the consignor after satisfying itself as regards the sound condition of the wagon, loaded the consignment into the wagon. As booking was covered by loading and unloading conditions. The applicant was to prove the entrustment of 123 bags as also the condition and weight of each and every bag loaded by it into the wagon at the booking station. As booking was covered by loading and unloading conditions. The applicant was to prove the entrustment of 123 bags as also the condition and weight of each and every bag loaded by it into the wagon at the booking station. The Railway receipt issued was a qualified one with the following remarks : "Sec. 14561 - L and U by owner. Loading not supervised by Railway Staff. Loaded directly - 6 bags non standard dunnage used. Wagon visually examined with sender/agent and found WT-TXT Examination of withdraw by CUPS." The consignment loaded by the applicant was carried to the destination through wagon with care and foresight and a shortage was solely due to be short loading by the applicant at the time of the booking. The respondent was therefore not liable to pay damages. Without prejudice to the legal rights of the respondent, open delivery of the consignment was granted noting the condition of the consignment. The applicant was to strictly prove the actual loss suffered, by production of relevant records. The application was also barred by limitation. 4. On the above pleadings, the following issues were framed for trial : 1. Whether the petitioner has title to the suit consignment to maintain the claim? 2. Whether 123 bags of gram were entrusted by the consignor to the Railways for carriage? 3. Whether there was short delivery of 11 bags at the destination? 4. Whether the Railways used reasonable foresight and came in the carriage of the goods? 5. Whether the petitioner is entitled to any compensation and if so, how much? 6. What relief is the petitioner entitled to? 5. On the side of the applicant/appellant. Exs. A-1 to A-6 were marked, while on the side of the respondent Exs. B-1 to B-3 were marked. There was no oral evidence let in. 6. On the materials placed, the Tribunal found, on issue No. 1, that the applicant had title to the suit consignment to maintain the claim. On issue No. 2, it held that the applicant had failed to prove that 123 bags were entrusted by the consignor to the Railways at the forwarding station for carriage. On issue No. 3, it held that the applicant had failed to prove the short delivery of 11 bags at the destination. On issue No. 2, it held that the applicant had failed to prove that 123 bags were entrusted by the consignor to the Railways at the forwarding station for carriage. On issue No. 3, it held that the applicant had failed to prove the short delivery of 11 bags at the destination. On issue No. 4, it was held that there was delay in transit for which no satisfactory explanation was given by the respondent, and that the respondent failed to use reasonable foresight and care in the carriage of goods. Notwithstading such a finding on issue No. 4, the Tribunal held that the applicant was not entitled to compensation in view of its finding on issue Nos. 2 and 3. So holding, the Tribunal dismissed the application. 7. As against the dismissal, the present Civil Miscellaneous Appeal has been filed. 8. Mr. Rajamohan, learned counsel for the appellant, made the following submissions: The Tribunal was in error in holding that the appellant had not proved the entrustment of 123 bags at the forwarding station. In this connection, the Tribunal omitted to note that the consignment was involved in a theft case, that the wagon rivets were broken during transit and at the destination point the wagon arrived without rivets on both sides of the wagon and with the seal of an instermediary station, namely, Agra. The Tribunal omitted to properly advert to Ex. A-5 wherein the respondent had admitted its liability and offered to pay the claim amount subject to the appellant undertaking to repay the amount in case the bags missing were restored to it. When the wagon was involved in a theft, it was for the respondent to explain. 9. Learned counsel for the appellant also relied on Section 93 of the Railways Act to the effect that the Railways could be absolved only in exceptional cases and that too upon proof of one of reasonable foresight and care. 10. Per contra, Mr. A. Venugopal, learned counsel for the respondent, submitted that the appellant had not satisfied the requirements of Section 69(2) of the Partnership Act by production of a certified copy of the entry from the Registrar of Firms and the certificate of registration, and that in those circumstances the suit by a partner was not maintainable. 11. 10. Per contra, Mr. A. Venugopal, learned counsel for the respondent, submitted that the appellant had not satisfied the requirements of Section 69(2) of the Partnership Act by production of a certified copy of the entry from the Registrar of Firms and the certificate of registration, and that in those circumstances the suit by a partner was not maintainable. 11. The learned counsel further submitted that the finding by the Tribunal that the appellant had not proved that 123 bags were entrusted to the respondent, was unexceptionable, particularly when the endorsements in the Railway Receipt, such as, "said to contain" and "S.W.B."(sic) were of binding nature and the decision of the Supreme Court in Hari Sao v. State of Bihar, would squarely apply to the facts of the case. According to the learned counsel the shortage certificate issued at the destination also would not help the appellant in proving the alleged short delivery in the absence of proper evidence regarding the number of bags actually entrusted to the respondent. 12. The learned counsel for the respondent also relied on the following decisions in support of the respondent's stand : 1. Firm Kapurchand Bhagaji Firm v. Laxman Trimbak, 1952 AIR(Nag) 57; 2. Union of India v. W. P. Factories, 1966 AIR(SC) 395; 3. : Pugalgiri Nadar and Son v. Union of India, 1966 (2) MLJ 441 ; 4. K. K. Wahi v. The General Manager, Northern Railway, 1975 Lab IC 496; 5. M/s. Shankar Housing Corporation v. Mohan Devi, 1978 AIR(Delhi) 255; and 6. Union of India v. Tiruchi Metal Works, 1989 (2) MLJ 214. 13. Let us dispose of the preliminary objection raised by the learned counsel for the respondent regarding the non-compliance with the provisions of Sec. 69(2) of the Partnership Act. The application before the Tribunal in the short cause title gives the name of the applicant as M/s. Hanif and Co., a registered firm, represented by partner: B. Md. Hanif and in the long cause title it is stated as follows : "The applicant M/s. Hanif and Co., is a registered partnership Firm, carrying on business at No. 12, Big Bazaar St. Tirupettur, N. A. District. The firm is hereby represented by their partner B. Md. Hanif and in the long cause title it is stated as follows : "The applicant M/s. Hanif and Co., is a registered partnership Firm, carrying on business at No. 12, Big Bazaar St. Tirupettur, N. A. District. The firm is hereby represented by their partner B. Md. Hanif." It is not brought to my notice as to whether the provisions of Order 30 of the C.P.C. have been made expressly applicable to the proceedings before the Railway Claims Tribunal. Be that as it may, the respondent has also not taken any objection to the short and long cause titles in the application filed by the appellant. The practice, I am aware of, in suits by or on behalf of the partnerships, is to produce the registration certificate, as also the certificate from the Registrar of Firms containing the entry relating to partnership of the firm. Conceding without accepting that the provisions of Order 30, C.P.C. are applicable to Railway Claims Tribunal, it has to be presumed that the Tribunal had satisfied itself about the composition and registration of the partnership firm by perusing the registration certificate, as also the certificate from the Registrar of Firms. It also does not appear that the respondent ever called upon the appellant to furnish the details invoking Order 30, Rule 2, C.P.C. It is very doubtful whether any objection at all was raised. 14. The decisions relied on by the learned counsel for the respondent in Firm Kapurchand Bhagaji v. Laxman Trimbak, 1952 AIR(Nag) 57 and M/s. Shankar Housing Corporation v. Mohan Devi, 1978 AIR(Delhi) 255 lay down that sub-sections (1) and (2) of Section 69 of the Partnership Act are substantive provisions intended to discourage the non-registration of a firm, that the provision is Section 69(2) is mandatory and made the registration of a firm a condition precedent to the institution of a suit of the nature mentioned in it and Order 30, Rules 1 and 2 provide the mode or form and the procedure for suits by or against a firm, and that the requirements in S. 69(2) should be satisfied first in order that a suit of the nature mentioned in it could be instituted and then the provisions of Rr. 1 and 2 of S. 30 were attracted as regards the mode or form in which the suit may be instituted as well as the procedure applicable to the said suit. 15. So far as these decisions laid down the proposition of law as set out above, there is absolutely no quarrel with them. In my view, the decisions relied on by the learned counsel for the respondent do not, in any way, help the present stand on behalf of Railways that there had been on compliance with the provisions of Sec. 69(2) on the Partnership Act. As already pointed out, it must be assumed that the Tribunal had satisfied itself about the maintainability of the application by the applicant. This objection raised now for the first time on behalf of the respondent is therefore rejected as devoid of substance. 16. A point was made by the learned counsel for the respondent that theft could be an act of public enemies as set out in Sec. 94 of the Railways Act and the respondent/railway should be absolved. I do not agree. The railway had to use reasonable foresight and care in the carriage of goods. It is amply demonstrated and in fact it had been practically admitted by railways that it had not used reasonable foresight and care. 17. The most crucial document in the instant came is Ex. A-5. Ex. A-5 is the reply by the respondent to the appellant's letter dated 1-8-1988 maarked as Ex. A-3. Ex. A-3 is the claim under Section 78(B) by the appellant. It states that there were 11 bags missing at the destinction, that the bags were stolen enroute in Agra, and therefore Agra Railway protection force came along with goods and counted the bags before delivery. The notice makes a claim for Rs. 6831/- + Rs. 495/- being respectively the value of the goods and freight charges. The response under Ex. A-5 is on the following lines: "With reference to your letter cited above, claiming compensation towards shortage of 11 B/s in the above consignment, I have to state that the matter is still under enquiry. However, with a view to avoid inconvenience to you, I proposed to meet your claim on the condition you should take delivery of the consignment as and when traced and made available to you for delivery duly refunding the amount now being settled. However, with a view to avoid inconvenience to you, I proposed to meet your claim on the condition you should take delivery of the consignment as and when traced and made available to you for delivery duly refunding the amount now being settled. Please signify your acceptance if you agree to the above condition of payment." 18. The reply has not disputed that the goods had been stolen in Agra. It has also not disputed that the R.P.F. from Agra accompanied the goods and counted the bags before delivery. In my considered view, there has been a clear admission on the part of the Railway that there was theft of the goods. The joint survey report, though had been issued without prejudice, in missing goods report-B regarding unloading details, stated that "one side NDLS seal and on the otherside AGC seal, both sides no rivet and the unloading was done in the presence of the R.P.F. witness." The Railways had not taken reasonable foresight and care in the transport of the consignment. When on their documents, there was vital admission with regard to theft, the tampering of the rivets so also the seals, the contension on its behalf that the appellant would be bound by the endorsement in the Railways receipt, such as, said to contain and SWA would be of binding nature, cannot therefore be put against the appellant. 19. The reliance by the learned counsel for the respondent on the decision of the Supreme Court in Hari Sao v. State of Bihar, is of no assistance. In that case, which arose under Sections 415 and 420, I.P.C., the Station Master was induced to make out Railway Receipt stating that consignment was said to contain 251 bags of chillies with letters L/U endorsed meaning that responsibility for loading and unloading vested with consignor and the wagons were found to contain only 197 bags of chaff. It was held that charge of chesting station master was not established as Railway did not incur any additional liability by the false representation that consignment contained 251 bags and the issue of the railway receipt therefore was not likely to cause any damage or harm to the Railway. It was held that charge of chesting station master was not established as Railway did not incur any additional liability by the false representation that consignment contained 251 bags and the issue of the railway receipt therefore was not likely to cause any damage or harm to the Railway. The Supreme Court reasoned that in case the goods were consumed by fire or even stolen from the wagon due to any negligence on the part of the railway administration the owner would have prove that he had put on rail 251 bags of chillies, that he would also have to prove the weight of the chillies and the approximate value thereof. For which he would have to call evidence to show how and when he acquired the goods and the price he paid for them and exactly what quantity he loaded in the wagons. So far as the present case is concerned, we have already noticed that the shortage claimed by the appellant was admitted by the respondent/Railway under Ex. A-5. The only condition imposed was that the appellant should take delivery of the consignment if and when traced and made available for delivery, and refund the amount settled. 20. In Union of India v. S.P.L. Lekhu, 1956 AIR(Mad) 176 referred to in the above Supreme Court decision a claim was made against the Railways for short delivery of 11 bags. The Railway Receipt showed that the wagons contained 200 bags of white toor. It was urged there that as the seals were intact, at the end of the journey, the responsibility for the shortage must lis with the Railways. It was pointed out that this would be so, if the Railways' staff had loaded the goods after verifying them and in the circumstances of the case the railway could not be held responsible for my shortage, so long as there was no proof to tampering with the seals. The endorsement that the consignment was said to contain a certain number of bags, did not amount to any admission on the part of the railway administration that the said, number of bags had in fact been loaded. The facts in the above decision of this Court, are clearly distinguishable, inasmuch as in that case the seals were intact and in the present case seals were broken and the rivets were missing. 21. The facts in the above decision of this Court, are clearly distinguishable, inasmuch as in that case the seals were intact and in the present case seals were broken and the rivets were missing. 21. Neither of the cases is of assistance to the case of the respondent. 22. The learned counsel for the respondent relied on the decision reported in Pugalagiri Nadar and Sons v. Union of India, 1966 (2) MLJ 441 . In that case it has been laid down that where a person claimed compensation for loss on account of his goods getting damaged due to the negligence of the carrier, it is incumbent upon him to establish by evidence that he had been put to actual loss by reason of such damage. The mere fact that the carrier admitted that damage has been occasioned cannot entitle the plaintiff to get a decree for compensation unless he proves the actual loss. The measure of damages in such cases will be the difference between the original value of the goods and the value for which the damaged goods were sold. Where the goods are completely damaged and are useless the consignee may reject the same and claim the entire loss. Where the damaged goods were admittedly sold and it was not established that it was said for any lessor value, no question of compensation for the damage could arise. 23. This decision has, absolutely, no application to the facts of the present case. It talks of damage to the goods and not loss of goods. 24. In Union of India v. W. P. Factories, 1966 AIR(SC) 395 it has been held that the market prior, at the time of the damage, is the measure of damages to be awarded; the contract price is no measure of damage to be awarded. That was a case where the respondent before the Supreme Court filed suits against the Government of India claiming damages for loss of goods which were destroyed by fire on the railway platform at a particular railway station, and the question arose as to the quantum, whether it was at the contract price or at the market rate. It was held by the Supreme Court that it was the market price, at the time the damage occurred which would be the measure of damages to be awarded. It was held by the Supreme Court that it was the market price, at the time the damage occurred which would be the measure of damages to be awarded. I am afraid, this decision has no application to the facts of the present case having regard to the claim made by the appellant under Ex. A-3 and the response by the respondent under Ex. A-5. 25. The decision of Ratnam, J. (as the learned Judge then was) in Union of India v. Tiruchi Metal Works, 1989 (2) Mad LJ 519 was a case where there was damage caused to the goods and it was also in evidence that the damaged part of the consignment which were Aluminium coils and circles was melted, cleaned and handed over to another company for remoulding and after purification, it was converted into sheets and those sheets were later converted into utensils. Those utensils were subsequently disposed of, but, the respondent in that case did not produce the accounts to show the amounts realised by sale of those vessels. In those circumstances, the learned Judge held that it was very necessary that the consignee should establish by evidence that he had sustained actual loss by reason of such damage had been occasioned, could not entitle the consignee to obtain a decree for compensation without proof of actual loss. The learned Judge referred to Pugalagiri Nadar's case (already discussed) and also the decision in Union of India v. Saligram Kantilal, 1978 TNLJ 139. As already pointed out, these decisions are cases where there was damage to the consignment and not cases of loss of consignment. 26-27. Yet another decision relied on by the learned counsel for the respondent is one in Firm, Laxmi Group Chand v. Union of India. In that case, A consigned goods for carriage by Railway. The R. R. was cognised to self. The goods were seized by Railway Police who prosecuted A under Sections 379/411, IPC. He was however, acquitted and the goods were returned to him as he was both the consignor and the consignee. In the meantime, B claimed the price of goods from Railway Administration. He was directed to approach the Criminal Court for release of the consignment. The goods were seized by Railway Police who prosecuted A under Sections 379/411, IPC. He was however, acquitted and the goods were returned to him as he was both the consignor and the consignee. In the meantime, B claimed the price of goods from Railway Administration. He was directed to approach the Criminal Court for release of the consignment. But B did not take any steps in that Court nor did he claim to be indorsee of the R. R. In a civil suit brought by him against the Union of India and A, no negligence or breach of duty on the part of the Railway Administration was proved. He however get a decree for the value of goods against A. It was held that B was not entitled to get any damages against the Union of India. The Supreme Court held that the railway administration committed no breach of duty in respect of carriage and the decree obtained by B against A represented the value of the goods. This decision also has no relevance to the matter on hand. 28. It is also pertinent to refer to Ex. B-3 D. Message, where it is said, wagon SCC 14561 with one side NDLS seal, otherside AGC was seal without seal card. Both sides no revets. Unloaded 234 bags Gram Dhall against 245 bags. 11 bags Gram Dhall short. It is also in evidence that there was undue delay in the carriage of goods and infact the very finding by the Tribunal is to the said effect. When once it is found that the Railway had not used reasonable foresight and care and there is also admission by the railways regarding theft and agreeing to make good the loss caused to the appellant, it is futile to contend that the appellant had not proved that so many bags were sent and that so many bags were lost. As regards the value, the same is not disputed. Ex. A-6 is the pattiyal which has been accepted by the Tribunal. 29. Consequently, the appellant is entitled to succeed. The dismissal of the claim of the appellant by the Tribunal, cannot be sustained. The Civil Miscellaneous. Appeal will stand allowed. No costs. Appeal allowed.