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2007 DIGILAW 606 (SC)

Lakshmi Chand Textiles v. Union Of India

2007-04-17

A.K.MATHUR, LOKESHWAR SINGH PANTA

body2007
ORDER : 1. Leave granted. 2. This is an appeal directed against an order dated 2.9.2004 passed by the Division Bench of the High Court whereby the Division Bench affirmed the finding of the damages assessed by the trial court to the tune of Rs. 29,883.50 with interest @ 12% p.a. from the date of filing of the suit till realisation. Aggrieved against this order, present appeal has been filed. 3. The brief facts, which are necessary for disposal of this appeal, are as under: The appellant-plaintiff filed a suit for recovery of Rs. 84570/- along with interest both pendente lite and future. The appellant- plaintiff through its Bombay office tendered a consignment comprising 12 bales containing Indian sewing thread weighing 25.10 quintals to the Western Railway for onward dispatch to New Delhi under invoice dated 8.11.1974. The appellant-plaintiff sought booking of the said goods under "Quick Transit Service System' and was booked at the railway risk rate. On 14.11.1974, the appellant sent its representatives to the New Delhi Railway Station for taking delivery of the said goods where it was found that the entire suit consignment was fully burnt and was in badly damaged condition. Thereafter, respondents- defendants through their Goods Inspector asked the appellant-plaintiff to take delivery of the railway receipt and remove the sound goods leaving the burnt and damaged goods for assessment by them. On 19.11.1974, the appellant-plaintiff took delivery of the railway receipt on payment of the railway charges and requested the respondents-defendants to grant open delivery of the partly damaged three bales on assessment of the damages as the remaining nine bales had been completely burnt and were valueless. The consignment was inspected jointly by the Goods Inspector of the respondents-defendants with the representatives of the appellant-plaintiff. Subsequently the suite consignment was jointly examined by the A.T.S.(C) Northern Railway, the Goods Inspector along with the representatives of the appellant-plaintiff and in that assessment 75% loss was assessed in 8 bales and 30% loss in 21 bundles and 5% loss in remaining 139 bundles. The appellant- plaintiff by letter dated 29.11.1974 requested the respondents-defendants not to detain the goods and to seek opinion of two independent and respectable persons in order to assess the damages and loss. The appellant- plaintiff by letter dated 29.11.1974 requested the respondents-defendants not to detain the goods and to seek opinion of two independent and respectable persons in order to assess the damages and loss. It is alleged that two independent agencies/surveyors namely, M/ s. Delhi Cloth Mills and Shri Handloom Bhandar, Delhi were appointed and they gave their reports on 19.12.1974 and 20.12.1974 respectively giving their assessment of the loss. On the basis ofthe said reports, appellant- plaintiff lodged a claim for a sum of Rs. 585 84/ - with interest and served a notice on the Railways under Section 78-B of the Indian Railways Act. In the said suit, the appellant- plaintiff claimed Rs. 56010/- as loss of damaged goods and Rs. 28560/- as interest @ 17% and the claim of the appellant-plaintiff was, therefore, valued at Rs. 84570/-. The suit was contested by the Railways and six issues were framed. Learned Additional District Judge, after considering the matter, decreed the suit of the appellant-plaintiff to the tune of Rs. 29883.50 without any interest. Aggrieved against that order, the appellant- plaintiff filed an appeal before the High Court which came to be disposed of by the Division Bench by order dated 2.9.2004 affirming the findings of the trial court with addition of interest @ 12% p.a. on the amount of decree passed by the trial court. Aggrieved against the order of the High Court, present appeal has been filed by the appellant-plaintiff. 4. We have heard learned counsel for the parties and have perused the record. 5. Learned counsel for the appellant- plaintiff has submitted that the two assessment reports which were prepared by two independent agencies/surveyors namely, M/ s. Delhi Cloth Mills and Shri Handloom Bhandar, Delhi were in possession of the Railways Administration and the appellant- plaintiff had made a request to the trial court for summoning of those reports by application dated 13.11.1979 under Section 11 of Code of Civil Procedure and the Railways Administration, in pursuance of that, produced photocopies of the two reports i.e. one given by surveyor M/s. Delhi Cloth Mills on 19.12.1974 and another by Shri Handloom Bhandar, Delhi on 20.12.1974. The original reports were not produced by the respondents-defendants and only photocopies were produced before the trial court. The original reports were not produced by the respondents-defendants and only photocopies were produced before the trial court. Both these two reports were not taken into consideration either by the trial court or by the High Court which has resulted in ignoring a relevant and material evidence and as a result thereof, the appellant-plaintiff was put to a great loss. Learned counsel for the appellant-plaintiff has submitted that the photocopies were filed by the respondents- defendants before the trial court on his application and the original were in possession of the Railways Administration and the reports are admitted documents and should have been taken into consideration by the courts below. 6. Mr. B. Dutta, learned Additional Solicitor General submitted that in fact these two independent surveyors were not appointed by the Railways and their reports were not in possession of the Railways. On 7.2.2007, we had directed the Railways to inform the Court whether the two independent assessments made by it relate to the DCM and Handloom Bhandar. We also directed that if the two surveyors namely DCM and Handloom Bhandar were not appointed by them or which are two independent agencies from where the reports were sought in terms of the paragraph 1846 of the Indian Railway Commercial Manual. 7. Today, when the matter is again taken up, an affidavit has been filed by the Union of India through Mr. Ravi Sharma, Deputy Chief Commercial Manager, NDCR Building, State Entry Road, New Delhi stating that after the order passed by this Court, the concerned department had sent requests to the Chief Good Supervisor, New Delhi on 22.3.2007 and Divisional Railway Manager Office, New Delhi on 21.3.207 and 4.4.2007 by sending the staff from the office of the deponent and after thorough search, the file/records could not be found since it relates to old period 1974- 75. Further it is stated in the affidavit that the respondents- defendants are not able to state at this juncture about the opinion of the independent agencies nor able to produce the same before this Court. 8. In view of this statement given by the Railways Administration, it appears that the Railways is not in position to controvert or state otherwise that whether the two independent agencies/surveyors namely, M/ s. Delhi Cloth Mills and Shri Handloom Bhandar, Delhi were the same independent surveyors or not. 8. In view of this statement given by the Railways Administration, it appears that the Railways is not in position to controvert or state otherwise that whether the two independent agencies/surveyors namely, M/ s. Delhi Cloth Mills and Shri Handloom Bhandar, Delhi were the same independent surveyors or not. Learned Additional Solicitor General also submitted that these two reports though were taken on record before the trial court but cannot be made a basis for assessing the loss when the two courts below have given a concurrent finding of fact. Therefore, this Court should not interfere with the finding of the fact recorded by the courts below. 9. After considering the submissions of both the parties, it appears that both the courts below have failed to take into consideration the relevant and material evidence of reports of two surveyors. In fact in order to put the matter beyond any doubt, we gave an opportunity to the respondents-defendants to produce or state on oath whether the aforesaid two surveyors were two independent surveyors appointed by them or not but they are not in a position to controvert. At the same time, we cannot loose sight of the fact that on the application moved by the appellant-plaintiff under Section 11 of Code of Civil Procedure before the trial court, photocopies of reports of two surveyors were filed by the Railways. It was not a case of the Railways Administration before the trial court that the two photocopies produced by them were wrong or the said independent surveyors were not appointed by them. Further if the two independent surveyors were not appointed by them, then the Railways Administration could have produced the reports of the surveyors appointed by them. Neither they have denied two reports nor they are able to state the names of the independent surveyors appointed by them on a request made by the appellant- plaintiff. When the photocopies of these two reports were produced from the possession of the Railways which is the custodian of the original record, then there is no difficulty in accepting these two admitted documents for assessing the loss caused to the appellants plaintiff. It will be pertinent to mention here that both the reports of the independent surveyors namely M/s. Delhi Cloth Mills and Shri Handloom Bhandar, Delhi bear the signatures of the railway officials. Mr. It will be pertinent to mention here that both the reports of the independent surveyors namely M/s. Delhi Cloth Mills and Shri Handloom Bhandar, Delhi bear the signatures of the railway officials. Mr. Dutta also tried to improve by saying that it will be a bad precedent but we regret to say that when the photocopies of these two reports were produced before the trial court by the Railways who was supposed in possession of the original documents and it has not taken a stand that the reports are not correct or that the two independent surveyors were not appointed by it, in that case we fail to understand why these two reports cannot be made a basis for assessing the loss caused to the appellant- plaintiff. Whenever the parties are in possession of the original documents and produce the photocopies as per the direction of the court and the said documents are not disputed then in that case, there is no difficulty in taking these two photocopies as admitted documents and on that basis, assessment of damages could be worked out which has not been done either by the trial court or by the High Court. Therefore, both the courts have not taken into consideration the relevant and material evidence and have not assessed the loss caused to the appellant-plaintiff on the basis of these two reports of the independent surveyors. In this view of the matter, we set aside the order of the High Court as well as of trial court and direct that the average of two reports of the independent surveyors should be worked out within a period of three months from today and the difference of amount should be paid to the appellant- plaintiff with interest @ 12% p.a. from the date of filing of suit till the date of realization. 10. The appeal stands allowed accordingly with no order as to costs.