JUDGMENT : REKHA SHARMA, J. (ORAL) The short question which arises for consideration in this appeal is, whether a consignee in whose favour the consignor of the goods has made an endorsement on the railway receipt entitling him to collect the goods at the destination, is competent to file a claim for recovery in case the goods are found to be in a damaged condition at the time of taking delivery from the Railways. 2. The present appeal was preferred way-back in the year 1992 against the order of the Railway Claims Tribunal (hereinafter referred to as Tribunals’) dismissing the claim of the appellant for a sum of Rs.10,800/-, on the ground that the appellant was not an endorsed consignee for valuable consideration and thus, had no right to sue. 3. It is submitted by learned counsel for the appellant that the appellant was not a consignee simplicitor, but was also a commission agent of the consignor and that in its such capacity, it could file a claim in case the goods were found in a damaged condition. In support, reliance has been placed upon a judgment of this Court in the case of Union of India Versus B. Prahlad & Co. reported in 1976 Rajdhani Law Reporter 278. The relevant paragraphs of the said judgment on which reliance has been placed by the learned counsel for the appellant read as under:- [ x x x x x 5. Has the commission agent a right to sue? This is the question to be decided. In Union of India v. W. P. Factories AIR 1966 S.C. 395 (398 and 399) the Supreme Court has laid down the following proposition: ……Ordinarily, it is the consignor who can sue if there is damage to the consignment, because the contract of carriage is between the consignor and the railway administration. Where, however, the property in the goods carried has passed from the consignor to consignee, the latter may be able to sue. The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to consignee will have to be decided on other evidence……….’ 6. The test, therefore, is: Has the title to goods passed to the consignee? If it has he can sue. The test, therefore, is: Has the title to goods passed to the consignee? If it has he can sue. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person. The Supreme Court gives the following illustration: ………Take a simple case where a consignment is booked by the owner and the consignee is the servant will take delivery at the place of destination. In such a case the title to the goods would not pass from the owner to the consignee and would still remain with the owner, the consignee being merely a servant or agent of the owner or consignor for purposes of taking delivery at the place of destination. It cannot, therefore be accepted simply because a consignee in a railway receipt is different from a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consigner………’ 7. Applying this principle to the facts of the present case the answer is plain beyond question. The commission agent is not a servant. Nor is he an ordinary agent. The Commission agent occupies an important place in the world of commerce. He plays a leading role in mercantile transactions as in this case: See Firm Ram Dev Jai Dev v. Seth Kaku, AIR 1950 E.P. 92 (FB) and Shivnarayan v. State, AIR 1967 SC 989 (990). x x x x x x 44. This then is my conclusion. The plaintiff as commission agent has sufficient interest in the goods and is entitled to sue. To hold to the contrary would be retrograde step and would paralyse the entire mechanism of finance of our internal trade. In this vast country where goods are carried by railway over long distance and remain in transit for long periods of time, the railway receipt is regarded as a symbol of goods for all purposes. ‘(Morvi Mercantile Bank v. Union of India). AIR 1965 SC 1954 …………………" 4. In this vast country where goods are carried by railway over long distance and remain in transit for long periods of time, the railway receipt is regarded as a symbol of goods for all purposes. ‘(Morvi Mercantile Bank v. Union of India). AIR 1965 SC 1954 …………………" 4. Having regard to what has been held by this Court in the aforementioned judgment, with which I fully agree, it can no longer be contended by the other side that a commission agent in whose favour the consignor has made an endorsement on the railway receipt is not competent to bring a claim for the recovery of a certain sum in the event of any damage having been caused to the goods during transit by the Railways from the place of its booking till destination. 5. The only other question that is required to be determined is, whether the appellant was, in fact, the commission agent of the consignor and the railway receipt was endorsed by the consignor in its favour. 6. The appellant has placed on the record the railway receipt Ex.R1. On the reverse of the said receipt, there is an endorsement in favour of the appellant by the consignee. As regards the question, whether the appellant was a commission agent of the consignee, the learned counsel for the appellant has relied upon affidavit of one of its partners, Shri Suresh Kumar which was placed on the record by way of evidence. It will be apposite to reproduce paragraphs 4, 5, 6, 7 & 8 of the said affidavit. The said paragraphs run as under:- x x x x x 4. That the applicant is doing the business of commission agent. They receive the goods from the consignor for sale on commission basis. The consignor M/s. Sri Venkateswara Rice Trading Co. New Firm Vijaywada at Panduru sent 240 bags to the applicant for sale on commission basis, vide railway receipt No.725674. The same has been marked as R1. The consignor had made the endorsement on the back of the above railway receipt at point A. The same may kindly be read as part of this affidavit. The deponent identifies the signatures of Shri P.V.S.N.Rao, one of the partners of the said firm. The deponent has seen him signing and writing. As such he identifies the signatures of the said partner on the above endorsement. 5. The deponent identifies the signatures of Shri P.V.S.N.Rao, one of the partners of the said firm. The deponent has seen him signing and writing. As such he identifies the signatures of the said partner on the above endorsement. 5. That the applicant sent a sum of Rs.95,000/- to the above consignor on 15.7.1985 vide bank draft issued by the State Bank of Bikaner and Jaipur, Khari Baoli, Delhi. Entries for the above were made by the deponent in the cash book on 5.7.1985 and corresponding entries were also made in the sale book. The said accounts are maintained by the deponent in due course of business of the applicant firm. The true copy of the above cash and sale book are being submitted with this affidavit with their translation in English. They may kindly be read as annexure B and B/T and C and C/T to this affidavit. Thus the applicant are the endorsed consignee of the above goods for valuable consideration. Even otherwise as the applicant are the commission agent/consignor they had right in the sale proceeds of the goods. They had interest in the commission. Thus the applicant being the commission agent of the consignor had all right, title and interest in the goods and are entitled to file the application and claim the same from the respondent. 6. That the goods were received in Delhi in damaged condition. The applicant applied for delivery of the goods on assessment. The respondent made the assessment and issued the assessment certificate which has been marked as Ex.R3 and Ex.R4. 7. That the respondent did not settle the claim of the applicant, as such notice dated 5.8.1985 was given. The respondent has placed on record a copy thereof which has been admitted by the applicant as Ex.R5. 8. That the damage to the goods are due to the acts of negligence and misconduct on the part of the respondent." 7. The Tribunal inspite of the specific averments made in the aforesaid paragraphs of the affidavit that the appellant was a commission agent of the consignor and that the railway receipt contained an endorsement in its favour as a consignee, rejected the claim on the ground that there was no corresponding averment in the plaint that the appellant was a commission agent of the consignor. 8. I have gone through the plaint. 8. I have gone through the plaint. I do find on a perusal of the same that it does not contain a specific averment that the appellant was the commission agent of the consignor, but that, to my mind, is not such an omission as would disentitle the appellant from filing a suit for recovery of damages. The appellant in paragraph-2 of its plaint has stated that the plaintiffs were the endorsed consignees of the above railway receipt for the said goods for valuable consideration.µ This averment, I feel, was sufficient in terms of the aforementioned judgment of this Court to enable the appellant to lay a claim for damages. In any case, the appellant not only made this averment, but, as noticed above, also filed on record the affidavit of one of its partners, namely, Suresh Kumar who stated therein that a sum of Rs.95,000/-was sent to the consignor as advance payment towards the sale of the goods. The documents showing payment of Rs.95,000/- were exhibited as AW1/2, AW1/IIT, AW1/3 & AW1/3T. If the appellant had no interest in the goods, as is sought to be contended by the learned counsel for the other side and was only deployed by the consignor to receive the goods on its behalf, then there was no sense in the appellant paying an advance of Rs.95,000/-to the consignor. 9. It has been argued by the learned counsel for the respondents that there was no authorization from the consignor in favour of the appellant empowering him to file a claim in case the goods received were found in a damaged condition and, therefore, the claim so filed was not valid. This argument in the teeth of the judgment noticed above has no merit. 10. It has also been argued by the learned counsel for the respondents that the appellant led no evidence to show that the goods were, in fact, damaged. This submission again is liable to be dismissed. It was for the Railways to have made a note with regard to the status of the goods at the time they were accepted for transportation to another place. The railway receipt Ex.R1 carries no such note, implying thereby that at the time the goods were booked, they were in perfect condition. This submission again is liable to be dismissed. It was for the Railways to have made a note with regard to the status of the goods at the time they were accepted for transportation to another place. The railway receipt Ex.R1 carries no such note, implying thereby that at the time the goods were booked, they were in perfect condition. The Railways having accepted the goods without any certification that they were in a damaged condition, the presumption is that they were in perfect condition. 11. It may also be noticed that as per the Railway Receipt Exhibit R-1, the goods were booked under the caption Risk Rate;. As per Section 63 of the Railways Act, 1989, where any goods are entrusted to a railway administration for carriage, such carriage shall, except where owner’s risk rate is application in respect of such goods, be at railway risk rate." I may, in this context, also refer to Section 93 of the Act which lays down that: "…………Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage or deterioration in transit, or non-delivery of any consignment, arising from any cause except the following namely:- (a) act of God; (b) act of war; (c) act of public enemies; (d) arrest, restraint or seizure under legal process; (e) orders or restrictions imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorised by it in this behalf; (f) act or omission or negligence of the consignor or the consignee or the endorsee or the agent or servant of the consignor or the consignee or the endorsee; (g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods; (h) latent defects; (i) fire, explosion or any unforeseen risk.’ 12. The case of the appellant is not covered by any of the exceptions contained in clauses (a) to (i). As a matter of fact, the Railways itself had prepared an assessment report dated July 30, 1985 and therein it was recorded that the goods in question were partly damaged. The said report is Ex.R5. 13. For what has been noticed above, I find that the Tribunal wrongly held the claim to be not maintainable. As a matter of fact, the Railways itself had prepared an assessment report dated July 30, 1985 and therein it was recorded that the goods in question were partly damaged. The said report is Ex.R5. 13. For what has been noticed above, I find that the Tribunal wrongly held the claim to be not maintainable. Having regard to the fact that the claim pertains to the year 1987, it will be wholly unjust if the matter is sent back to the Tribunal for fresh adjudication, more so, when the amount claimed was only to the tune of Rs.10,800/- and also on account of the fact that the witness of the appellant was not cross-examined on the amount claimed by it. Hence, I award a sum of Rs.10,800/- to the appellant on account of the damage caused to the goods along with pendentelite and future interest @ 9% per annum from the date of filing of the suit, i.e. May 20, 1987 till the date of its realization. The respondents are directed to make the payment within three months from now. The appeal is disposed of.