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Chhangamal Harpaldas and Anr. Versus Dominion of India and Anr.

1957 (4) TMI 71 - BOMBAY HIGH COURT

A.F.O.D. No. 579 of 1952 - Dated:- 18-4-1957 - M.C. Shah and Schripatrau Palnitkar, JJ. For Appellant: G.S. Gupte, Adv. for R.B. Kotwal, Adv. For Respondents: G.P. Murdeshwar, B.A. Chikarmani, Advs. JUDGMENT M.C. Shah, 1. The plaintiffs, who are commission agents residing at Delhi have by this appeal challenged the decree passed by the Civil Judge, Senior Division, at Jalgaon in Special Suit No. 12 of 1950 dismissing their suit against the Dominion of India. 2. The facts which give rise to the c .....

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hat Forwarding Note Malhari Bhika requested the Station Master at Kajgaon to receive and forward by passenger train the parcel described therein to Delhi Junction Station at reduced rates as per Risk Note on the reverse signed by him. The consignment was booked at reduced rates. This consignment reached Delhi on 36th October 1948. It appears that between Kajgaon and Itarsi the wagon was attached to 39 Dn. Parcel Train and beyond Itarsi it was attached to a mixed passenger train. In the normal co .....

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3, dated 22nd October 1948. was obtained in the name Of Peer Mahomed and Sons as consignors and the consignees were the plaintiffs. This consignment was also booked at reduced rates, The wagon was loaded on 22nd October 1948 and between Kajgaon and Itarsi the wagon was attached to 33 Dn. Parcel train and at Itarsi it was attached to a mixed passenger train. In the normal course, if it had been carried by passenger train, the consignment should have reached Delhi on 24th October 1948. but it reac .....

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ached to a mixed passenger train. In the normal course, the wagon should have reached Delhi on 1st October 1946 if sent by passenger train; but it reached Delhi on 5th October 1948. On arrival at Delhi the contents of the wagon were found to be damaged and the loss was assessed at ₹ 2,200/-. By this Forwarding Note in this case also Peer Mahomed and Sons had requested the railway administration to send the consignment by passenger train but it was sent by parcel train from Kajgaon to Itars .....

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nduct on the part of the 'railway administration'. The railway administration having rejected the claim, the plaintiffs filed Special Regular Suit No. 13 of 1950 in the court of the Civil Judge. Senior Division, at Jalgaon against the Dominion of India as representing the Central Railway, for a decree for ₹ 10,061/12/- being the amount Of compensation for loss suffered by the plaintiffs, and interest thereon. The plaintiffs also claimed interest at the rate of 12 per cent from the .....

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loss of the consignments. It was also contended that under the Risk Note the Railway administration was absolved from liability, that the claim was barred by the law of limitation and that in any event the compensation claimed was excessive and unreasonable. 7. The learned trial Judge held that the railway administration did not bind itself by agreement to carry the goods by passenger train and that in failing to deliver the goods within a reasonable time the railway administration was not guilt .....

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was barred by the law of limitation. The learned Judge accordingly dismissed the plaintiffs' suit. In this appeal the plaintiffs have not challenged the decree passed by the trial court dismissing their claim for compensation for damage to the third consignment and have restricted their claim to ₹ 7,596-4-0 - ₹ 3,000/- being compensation for damage to the first consignment and ₹ 4,596-4-0 being compensation for damage to the second consignment. 8. Mr. Kotwal on behalf of th .....

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Exhibits 141, 143 and 111, that the consignments of plantains had been sent by passenger train, it is undisputed that from Kajgaon to Itarsi the consignments had not been sent by passenger train but they were sent by parcel trains. 39 Dn. from Victoria Terminus, to whim the wagons were attached, is only a parcel train. It is. therefore, difficult to accept the view Of the learned trial Judge that there was no breach of contract committed by the railway administration in sending the wagons from .....

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no clear evidence as to when the 39 Dn. Parcel train reached Itarsi with the wagons ,and there is also no evidence as to how long the wagons were detained at Itarsi. In B. B. and C. I. Rly v. Mahaniadbhai Rahimbhai 31 Bom. LR 16 AIR 1929 Born 355, it Was held by this court that if a consignment of perishable goods is sent by goods train, when it was agreed between the consignor and the railway administration that the consignment was to be sent by passenger train, a breach of contract is committ .....

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the consignor being a party to the contract with the railway administration is entitled to file a suit for compensation for loss suffered by him by reason of the breach of contract committed by the railway administration or by reason of misconduct on the part of the railway employees in dealing with the consignment. Again it has been held by this Court in Union of India v. Taherali Isaji. 58 Bom LR 650 , that an endorsee of a railway receipt, when he is not merely an agent for collection of the .....

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ods is not a party to the contract of consignment. At best, he is an agent of the consignor to take delivery of the goods covered by the railway receipt. In form, a railway receipt authorises the consignee to take delivery of the Hoods at the destination, and a consignee not being a party to the contract of consignment cannot file a suit for breach of the contract contained in the railway receipt. 10. In Macpamara's "law of Carriers by land", second Edition, at page 107, in Art. 13 .....

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f sale being so lost or damaged, and in the absence of any special contract between the carrier and the seller or buyer as the case may be, the proper person to sue the carrier is the person in whom the property in such goods is vested during transit." 11. In Halsbury's "Laws of England", Third Edition. Volume 4, page 196, Article 481, if is observed : "Delivery to a carrier does not necessarily vest the property in the goods In the consignee; and so. If the property in t .....

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f he has made a special contract with the carrier for their carriage, or if the consignor has delivered the goods to the carrier as agent for the consignee, the latter is the person to sue; and this may be the case even though the consignor has paid the carrier, for, in the absence of any arrangement to the contrary, the consignor is always liable to pay the carrier." 12. Two propositions appear to be well-settled. The right of action to recover compensation for loss or damage to the goods .....

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ignor may sue for compensation for loss relying upon the breach of contract of consignment. An owner of goods covered by a railway receipt may sue for compensation relying upon his title, and the loss of goods by misconduct of the railway administration. But a bare consignee, who is not a party to the contract of consignment and who is not the owner of the goods, cannot maintain a suit for compensation for loss or damage to the goods. He has no cause of action ex contracts nor ex delicto. 13. Mr .....

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e railway company for consignment. In that case Messrs. Baijnath Ramkisun had despatched to Dhanbad . five tins of ghee from Begusarai Station to self. The consignor did not endorse the railway receipt In favour of Sri Ram Krishna Mills Ltd., but Sri Ram Krishna Mills, Ltd., filed a suit for damages for failure to deliver the goods. It was held that the plaintiffs could not maintain a suit for damages. Mr. Justice Beevor after referring to a passage from the judgment of their Lordships of the Pr .....

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dictum not necessary for the decision of the case. 14. In Chunna Lal v. Govenor-General-in-Council. AIR1950All89 , it was held by Mr. Justice Seth that a consignor, who sued for compensation for loss caused to him by non-delivery of goods alleging that the consignee was his commission agent, could not be non-suited "In limine without affording him an opportunity to substantiate his allegation that the property in the goods had not passed to the consignee. The actual decision in that case do .....

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y Company for transmission to a buyer, the property in the goods passes to the buyer and any loss that is occasioned thereafter is the loss to the buyer and no loss to the seller, and that the seller having suffered no loss, is not entitled to claim any damages from the Railway Company". That, however, is not a decision in support of the proposition that a bare consignee under a railway receipt may sue the railway administration for loss of the goods. 15. In AIR 1924 Mad 517 the head-note i .....

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not entitled to maintain the action The observation that a consignee alone can file a suit was plainly unnecessary for the decision of that case. 16. In Shamjj Ehanji & Co. v. North Western Rly. Co. AIR1947Bom169 . it was held by Mr. Justice Bhagwati that the plaintiffs, who were consignors and who ultimately became endorsees of the railway receipt, could file a suit for loss of the goods. It was observed in that case that the endorsements made on the railway receipt by the plaintiffs had no .....

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n that the consignee can file a suit for compensation for loss, and the principle of the case is plainly inconsistent with the dictum in the case in AIR 1924 Mad 17. 17. In Erachshaw Desabhai v. Dominion of India. , it was observed that a consignee of goods has sufficient interest in the goods to entitle him to sue for compensation for loss arising out of misconduct of the railway administration, and in support of that observation. Jalan and Sons, Ltd. v. Governor-General in Council AIR 1949 EP .....

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the plaintiffs' firm, admitted in his evidence that he had not suffered any loss and that he was entitled merely to his commission in the sale proceeds. He also admitted in his evidence that the railway receipt was never sent to him. Evidently the plaintiffs were not even in possession of the railway receipt and could not be deemed to have become owners of the goods by negotiation of the railway receipt. They had otherwise no interest in the goods as owners and they were not parties to the c .....

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