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2005 DIGILAW 1732 (RAJ)

Union of India v. Firm Dwarka Prasad Raj Kumar

2005-07-08

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is a defendants appeal against the Judgment and decree dated 19.07.1996 passed by the Additional District Judge, Nohar, District Sriganganagar who decreed the suit of the plaintiff respondent for an amount of Rs. 15,186/-with interest at the rate of Rs. 1.50 paise per month per hundred (18% p.a.) 2. The facts in brief are that plaintiff-respondent firm placed an order to the National Fertilizers, Nangal Dam for 473 bags of Calcium Ammonia Nitrate (fertilizer) weighing 236.50 kilograms. The said consignment was dispatched on 02.09.1979 from Nangal Dam Railway Station and was to be delivered to the plaintiff -respondent at Nohar, District Sriganganagar, Rajasthan. The said goods were dispatched through Railways and the same reached Nohar, District Sriganganagar on 011.1979 i.e. after nearly two months. On arrival, the goods were found damaged inasmuch as out of 473 bags only 200 bags were found to be intact. Out of the remaining 273 bags, they were categorized in three category depending upon the extend of damage as the same have been damaged on account of tearing of the bags, those affected by moisture and having become lumps and further on account of the bags being torn the same having been spread on the floor became heaps and as such the plaintiff while taking the delivery of 200 bags did not take delivery of 273 bags which were in a damaged condition and the delivery was given to the plaintiff in January, 1980 i.e., after nearly two months of their arrival at Nohar. 3. The case in the nutshell of the plaintiff is that these 273 bags of fertilizers on account of being affected by moisture had became unfit for the use and as such the plaintiff claimed that the same could not be sold as fertilizer as the farmers were not prepared to buy the same as it was no more in the granule form which is the form in which it is sprinkled in the fields. In that view of the matter the plaintiff was forced to dispose of the same at throw away price and, therefore, the loss that was caused for the price of 273 bags, the plaintiff claimed an amount of Rs. 11,686/-for the loss of price as damages and an amount of Rs. 3,500/-as interest at the rate of 18% p.a. on the said amount and filed a suit for Rs. 11,686/-for the loss of price as damages and an amount of Rs. 3,500/-as interest at the rate of 18% p.a. on the said amount and filed a suit for Rs. 15,186/-with interest at the rate of 18% p.a. 4. The defendant-appellant on the other hand denied that there was any delay occasioned on the part of the defendants who delivered the goods at Nohar and the defendants had taken all precautions to ensure the safe delivery of the goods. The defendants further pleaded that goods were loaded at the yard in the wagons available at the National Fertilizers Nangal Dam Factory Premises by the employees of the factory itself and, therefore, since the loading operation had been carried out in the factory premises by the employees of the factory, the Railways cannot be held responsible in any manner for any loss to the quality of the goods. The defendants-appellants further pleaded that in fact the damaged goods had been sent for analysis by the defendant. The quality of the goods was only marginally diminished as the nitrogen contents in the fertilizer have been marginally reduced and as such based upon such chemical report the defendant appellants after receipt of the notice under Section 80 CPC offered an amount of Rs. 363/-which was the damage assessed by the defendants-appellants. 5. After the aforesaid, written statement was filed by the defendants. The plaintiff filed rejoinder and denied the fact that goods had only been marginally damaged and stated on the other hand that quality of the goods has been totally diminished and was unfit for being used as fertilizer. 6. The learned trial Court after receipt of the aforesaid pleadings framed as many as eleven issues and the parties led both documentary as well as oral evidence. 7. The learned trial Court decided the issues except issue No. 11 in favour of the plaintiff and decreed the suit of the plaintiff -respondent for Rs. 15,186/-with interest at the rate of 18% per annum. Being aggrieved by the aforesaid Judgment and decree passed by the learned trial Court dated 19.07.1986, the defendant appellant has come in appeal. 8. 7. The learned trial Court decided the issues except issue No. 11 in favour of the plaintiff and decreed the suit of the plaintiff -respondent for Rs. 15,186/-with interest at the rate of 18% per annum. Being aggrieved by the aforesaid Judgment and decree passed by the learned trial Court dated 19.07.1986, the defendant appellant has come in appeal. 8. The submission of the learned Counsel for the appellant is that in the first place the appellant cannot be held responsible for the loss assuming that there was loss or damage to the goods as the goods were loaded at the factory premises of the National Fertilizers at Nangal Dam. As per the Railway Receipt goods were loaded in water tight wagons as the letters “W.T.” shows on the R.R. itself . Thus, the goods as per the Railways defendant-appellants having been loaded in water tight wagons, all precautions were taken by the defendant-appellants to deliver the same safely at Nohar and Railways delivered the goods in the form they were received at Nohar. 9. In response to the aforesaid argument of the leaned Counsel for the appellants, learned Counsel for the respondent submitted that it has come in the evidence of PW. 1 Dwarka Prasad in the cross-examination itself that Nangal Dam Station, from where the goods were dispatched is on the broad gauge whereas Nohar Station, which was the destination of goods is on the meter gauge (this was the position prevailing in the year 1979 prior to the gauge conversation). He has clearly stated that trans-shipment of the goods is done either at Hissar or at Suratgarh depending on the route from where the goods were dispatched. Thus, the submission of the learned Counsel for the respondent is to the effect that the endorsement that the goods were dispatched in water tight wagons from Nangal Dam is of little consequence as the same were off-loaded en-route from the wagons on the broad gauge for being loaded in wagons of meter gauge. What was the condition of the goods at the time of transshipment, the said record has not been produced by the appellant-defendant. What was the condition of the goods at the time of transshipment, the said record has not been produced by the appellant-defendant. As such, it is submitted that before the goods were received at the destination the same were removed from the water tight wagons by the railway authorities and there is no record to show that they were found in damaged condition at the point of trans-shipment. The defendant-appellant thus cannot take shelter of the fact that the goods were not loaded by the defendant and, that same having been loaded at the siding of the factory the Railways cannot be held responsible for the damage to the quality or the bags. 10. I have given my thoughtful consideration to the above submissions made at Bar and I am inclined to agree with the submission of the learned Counsel for the plaintiff -respondent that in the facts and circumstances of the present case. Where even though the goods have been dispatched from the railway siding to the factory at Nangal Dam and the Railway Receipt bears the endorsement goods being dispatched in the water tight wagons but prior to the arrival at the destination the goods were removed from those water tight wagons which were of the broad gauge and transshipped to the meter gauge wagons before their arrival at Nohar which was on the meter gauge. The onus lies upon the defendant-appellant to show that even at the time when the goods were transshipped from broad gauge wagons to the meter gauge wagons, they were found in the damaged condition on the opening of those wagons and since this transshipment was carried out en-route by the appellant, the condition of the goods at that time was within the special knowledge of the appellant and it was for the appellant to have produced the relevant record relating to the condition in which the goods were found by the authorities of the appellant at the time of transshipment. Since, no record has been produced by the appellant to show that goods were found damaged at the time of the removal from broad gauge wagons at the place of transshipment, the presumption which is liable to be drawn against he defendant-appellant is that the goods were in good condition and were intact. Since, no record has been produced by the appellant to show that goods were found damaged at the time of the removal from broad gauge wagons at the place of transshipment, the presumption which is liable to be drawn against he defendant-appellant is that the goods were in good condition and were intact. These facts being within the special knowledge of the defendant-appellant and that evidence having been withheld by the defendant-appellant not only an adverse inference is liable to be drawn against the defendant-appellant but the submission of the defendant-appellant taking shelter of the fact that since the goods have been loaded at the site of the National Fertilizers by the employees of National Fertilizers, the Railways (defendant-appellant) cannot be held responsible for the damaged condition of the goods is liable to be rejected and the defendant would be held liable for the damages to the goods and consequential loss caused to the plaintiff -respondent caused during transit. In view of the aforesaid, I find no error in the Judgment of the learned trial Court whereby learned trial Court has decided the issues No. 2, 3 and 10 against the defendant-appellant. 11. Another significant fact in the instant case is that normal time taken for the receipt of the goods after being dispatched from Nangal Dam to Nohar as per the defendants own evidence is between 8 to 10 days to 20 days. It has come in the evidence that in the instant case the goods were dispatched on 02.09.1979 and received at Nohar on 011.1979 i.e., after over two months. The condition of the goods on their arrival has been recorded in Exhibit-2, the assessment report, which was prepared by the defendant. As per the contents of assessment report, Exhibit-2, out of 473 bags 200 bags were found intact. The balance 273 bags were in three categories. In the first category there were about 50 bags in which the contents of chemical fertilizer had got stuck to the gunny bags and had formed into lumps. In the second category of about 150 bags covering was torn at different places and the contents have formed in powdered shape and was stuck to the gunny bags. 73 of such bags of third category were completely torn and the contents scattered on the floor and formed into heaps. In the second category of about 150 bags covering was torn at different places and the contents have formed in powdered shape and was stuck to the gunny bags. 73 of such bags of third category were completely torn and the contents scattered on the floor and formed into heaps. Thus, there is no denying of the fact that out of 473 bags of fertilizers that were dispatched, 273 bags had been damaged in transit as has been held above. If the damaged had been noticed at the time of transshipment, this fact would have come to the notice of the authorities of defendant-appellant and a report to that effect prepared at the time of transshipment but since no such record has been produced, it is safe to presume that at the time of transshipment, these goods were intact but were subsequently damaged during transit by the defendant Railways. 12. Learned Counsel for the appellant has then submitted that defendant-appellant had sent samples of these goods out of 273 bags for being analyzed by the chemical analyst and as per the report of the chemical analyst, it cannot be said that goods were completely damaged and, therefore, he submits that plaintiff -respondent was not entitled to the entire cost of goods but only damages to the extent of loss in the quality which has been found by the chemical analyst. The submission of the learned Counsel for the plaintiff-respondent on the other hand is that the alleged report of Chemical Analyst, Exhibit A-1, alongwith the statement of DW. 3 Chandrankant is of no evidentory value as there is no evidence to the effect that samples (contents of the fertilizer) which were sent for analysis to the chemical analyst DW. 3 Chandrankant who analyzed the packets A, B and C were the same which had in fact been seized. Neither there is any evidence led by the defendant-appellant to show that these samples were sealed and that seals which were there on such samples were found intact by the Chemical Analyst DW. 3 Chandrankant and that this witness compared and found those seals intact, as such he submits that report of the Chemical Analyst cannot help defendant-appellant. He has further submitted that no forwarding letter or letter of request sent to Chemical Analyst was produced on record nor has the witness DW. 3 Chandrankant and that this witness compared and found those seals intact, as such he submits that report of the Chemical Analyst cannot help defendant-appellant. He has further submitted that no forwarding letter or letter of request sent to Chemical Analyst was produced on record nor has the witness DW. 3 Chandrankant stated that samples were received by him alongwith any forwarding letter requesting for chemical analysis and for what purpose. In view of the aforesaid, learned Counsel for the respondent submits that said report cannot be of any evidentory value in the present case and the learned trial Court has, therefore, rightly refused to accept this piece of evidence while dealing with issues No. 6 and 7. 13. After a thoughtful consideration of the above submission and having perused the findings of trial Court on issues No. 6 and 7, I am inclined to agree with the submission of the learned Counsel for the respondent-plaintiff that report Exhibit A-1 cannot help the defendant-appellant as it suffers from various defects including the fact that there is no evidence of the sample which was sent was from the goods which was in dispute out of consignment sent from Nangal Dam National Fertilizers to the plaintiff . Further there is no evidence to show that samples so taken by the defendant were taken and sealed in the presence of the plaintiff . No such document has been produced by the defendant-appellant as has been submitted by the learned Counsel for the plaintiff-respondent. The defendant has failed to produce any evidence that samples were sent under sealed packets and these seals were found intact by the analyst before the analysis was carried out. Nor is there evidence to show that the Chemical Analyst compared the seals. In the absence of such evidence, it cannot be relied upon that the report Exhibit A-1 refers to the samples of the disputed consignment. It will also be relevant to mention here that defendant witness DW. 1 Pokhar Raj has admitted Þ;g ckr lgh gS fd ;g QVhZykbtj Hkhxk gqvk FkkAß 14. In the absence of such evidence, it cannot be relied upon that the report Exhibit A-1 refers to the samples of the disputed consignment. It will also be relevant to mention here that defendant witness DW. 1 Pokhar Raj has admitted Þ;g ckr lgh gS fd ;g QVhZykbtj Hkhxk gqvk FkkAß 14. Read with the aforesaid statement is the assessment report Exhibit-2 and there is no denying of the fact that fertilizer in question contained in 273 bags had been damaged and had been affected by moisture while the same was being transported by the defendant-appellant from Nangal Dam to Nohar and the defendant would be liable for the loss on account of aforesaid damages. In my opinion, the findings of learned trial Court in this behalf do not call for any interference. 15. Learned Counsel for the defendant-appellant has then submitted that learned trial Court erred in decreeing the suit for compensation amounting to Rs. 15,186/-whereas in fact as per the report Exhibit A-1, there was only marginal loss of quality and in view of that the plaintiff was only entitled to the compensation amounting to Rs. 63/-which was conveyed by the plaintiff-respondent to the defendant-appellant after the receipt of the notice under Section 80 CPC. He submits that since the chemical analyst had found that nitrogen contents in the fertilizer had been only marginally reduced, the plaintiff would be entitled only to the loss on account of said reduction in the nitrogen contents and to that extent alone the damages should have been awarded. In view of the explanation given by DW. 3 Chandrankant since there was only 2.8 per cent loss of nitrogen in the fertilizer, he submits that assuming the value of the fertilizer was Rs. 100/-per bag, the damages should have been quantified as Rs. 2.80 per bag. In response to the aforesaid, learned Counsel for the plaintiff -respondent submits that in the first place the report of the chemical analyst cannot be looked into to support the case of the defendant-appellant for the reasons which have already been stated while discussing the evidence of DW. 3 Chandrankant. 2.80 per bag. In response to the aforesaid, learned Counsel for the plaintiff -respondent submits that in the first place the report of the chemical analyst cannot be looked into to support the case of the defendant-appellant for the reasons which have already been stated while discussing the evidence of DW. 3 Chandrankant. He further submits that merely because the chemical analyst proved that loss of nitrogen content was marginal, it cannot be said that loss to the plaintiff is only to the extent of the loss of nitrogen contents in it and, therefore, the plaintiff -respondent is entitled to the amount of Rs. 363/-is not justified at all. On the other hand, learned Counsel for the plaintiff-respondent submits that plaintiff had led evidence to show that goods were damaged on account of moisture and the bags in which the fertilizers were contained were also damaged. It had lost its shape and instead of appearing in granule, it has become in powdered form as well as lumps on account of moisture content. Since, it has lost all its properties for appearance, size etc., customers who were farmers were not inclined to purchase the same and, therefore, the plaintiff had to sell the same at throwaway price as it has become unfit as the farmers were not prepared to buy the same. Hence, in order to mitigate the loss, whatever little the plaintiff-respondent could get by selling the same at the cost of the bags which was Rs. 4.25 paise. It is in this respect, the evidence in forms of bills has been produced by the plaintiff-respondent. 16. I have given my thoughtful consideration to the rival submissions and I find that as has been held above, I am not inclined to reply upon the report of the Chemical Analyst for the reasons which have already been stated above. If the report of the Chemical Analyst stands rejected for the previous ground the same cannot be relied upon for determining the loss of value. Even otherwise, as per the report Exhibit A-1, the remark in the report is that it is substandard. Thus, as per the defendants own evidence the goods were substandard and, therefore, in the light of the assessment report Exhibit-2 which shows that the condition of the bags of goods was torn and the contents have been drained out and affected by moisture. Thus, as per the defendants own evidence the goods were substandard and, therefore, in the light of the assessment report Exhibit-2 which shows that the condition of the bags of goods was torn and the contents have been drained out and affected by moisture. The contents were no more in the granule form and were powdered and stuck to the gunny bags. In view of the aforesaid, it can safely be held that customers who were farmers in the instant case, were not willing to purchase the same and, therefore, the goods were sold at the price which is indicated in the cash memo and bills which have been produced on the record and the entire consignment of 273 bags were sold for Rs. 1.176/-In this view of the matter, I find no error in the findings arrived at by the trial Court while quantifying the loss as Rs. 11,686/-which was arrived at after reducing the amount of Rs. 1,176/-from Rs. 12,862/-which was the cost of 273 bags of fertilizers alongwith Rs. 32/-being the bank charges as this was the actual loss which was caused to the plaintiff respondent. 17. Learned Counsel for the defendant-appellant has then argued that learned trial Court committed error in allowing interest component of Rs. 3,500/-while decreeing the suit for Rs. 5,186/-with interest. He submits that if at all the interest was to be awarded, the same should have been awarded only upon the amount of Rs. 11,686/-and excluding the amount of Rs. 3,500/-which was the interest component in the suit amount of Rs. 15,186/-. 18. In am inclined to accept the aforesaid submission, Learned Counsel for the appellant has further submitted that the learned trial Court has committed a serious error in awarding interest @ 18% p.a. during pendente lite which is highly excessive. In the facts and circumstances, the ends of justice would meet if interest @ 9% p.a. is awarded in place of 18% p.a. as awarded by the learned trial Court. This interest of 9% p.a. would be liable to be paid on the amount of Rs. 11,686/-excluding the amount of Rs. 3,500/-out of Rs. 15,186/-. 19. Consequently, while the Judgment and decree passed by the learned trial Court is upheld. It is modified only to the extent that the defendant-appellant would be liable to pay interest on the amount of Rs. 11,686/-excluding the amount of Rs. 3,500/-out of Rs. 15,186/-. 19. Consequently, while the Judgment and decree passed by the learned trial Court is upheld. It is modified only to the extent that the defendant-appellant would be liable to pay interest on the amount of Rs. 11,686/-@ 9% p.a. in place of 18% p.a. from the date of filling of suit. In the facts and circumstances, the parties shall bear their own costs.