JUDGMENT
S. Awasthy, J.
1. The plaintiff-appellant deals in the sale and purchase of foodgrains and fertilizers. In pursuance to an order placed by the plaintiff, the Food Corporation of India, Kandla Port, viz., defendant No. 2 (respondent. No. 2 herein), booked 2,200 bags weighing 1,100 quintals of Urea to be delivered to the plaintiff at Durg – vide Invoice No. 7, railway receipt No. 238109 on 6-7-1974. Open delivery of the consignment was given to the plaintiff on 20-7-1974. Only 2195 bags weighing 1094.25 quintals of Urea were delivered to the plaintiff. 5 bags were missing and 15 bags were in torn and damaged condition; and, thus, 5.75 quintals of Urea were delivered short to the plaintiff. A shortage certificate was accordingly issued by the railway authorities to the plaintiff on 27-7-1974. It is alleged that the short delivery of the consignment was due to the negligence or misconduct of the railway employees who handled the consignment. The plaintiff served a notice dated 7-10-1974 on the railway under section 78-B of the Indian Railways Act, reply to which was given by the railway authorities on 12-5-1975 repudiating the responsibility of the railway-defendant No. 1 (respondent No. 1 herein). A notice under section 80 of the Code of Civil Procedure, was issued on 1-9-1976 and both the defendants were served in due course of time. The plaintiff sought disclosure from the railway of the manner in which the railway and the railway employees dealt with the consignment which was in their custody from the date of booking till the date of delivery.
2. The Union of India, through the General Manager, South Eastern Railway, Calcutta, denied in the written statement that 2,200 bags weighing 1,100 quintals of Urea were handed over to the railway. However, it is admitted that the consignment was booked under Invoice No. 7, railway receipt No. 238109 on 6-7-1974 in the name of the consignee. It was contended that the consignment was booked as wagon load goods and reached Durg with seals intact; and there was no mishandling of the consignment, nor was there any misconduct on the part of the railway employees. It is also mentioned that the consignor might have booked less quantity of Urea, for which the railway cannot be held liable due to alleged short delivery. The railway did not supervise the loading of wagons and the words “said to contain” were mentioned in the railway receipt before the actual figures shown in the railway receipt pertaining to the consignment. It is submitted that, under these circumstances the railway was not negligent, nor could it be said to be liable for the short delivery.
3. The defendant No. 2 (respondent No. 2 herein) alleged that they had delivered 2,200 bags of Urea weighing 1,100 quintals to the railway for transit. If there was any short delivery, the liability would be that of the railway and not of the defendant No. 2.
4. The trial Court dismissed the suit holding that the negligence of the railway had not been proved. It was also held that the railway did not accept without qualification about the number of bags and the weight as shown by the consignor in the railway receipt. There is no evidence on record to prove that, in fact, 2,200 bags weighing 1,100 quintals of Urea were handed over to the railway. No witness has been examined by the defendant No. 2 to prove that the consignment, in fact, contained the Urea as was alleged by the plaintiff.
5. The appellate Court dismissed the suit as well as the appeal affirming the findings recorded by the trial Court. Hence, this second appeal, in which the following substantial questions of law have been framed:
“(i) Is the lower appellate Court right in holding that none of the defendants is liable to compensate the plaintiff for the loss admittedly suffered by it because of the short delivery of the bags and damage to goods?
(ii) Whether Food Corporation of India is a necessary party to the suit?”
6. The argument of the learned counsel for the appellant is that it is a case of fixing the liability on either of the defendants. If the defendant No. 2 is said to have proved that it did entrust the alleged 2,200 bags weighing 1,100 quintals of Urea, the liability would be that of the railway to account for the short delivery; but, in case it is not established by the defendant No 2 that the quantity of Urea, as shown above, was entrusted to the railway, the liability would be that of the defendant No. 2. It is not disputed by the defendants that the plaintiff received the consignment short by 5.75 quintals. The plaintiff, therefore, prays for a decree as claimed by it, which may be passed against any one of the defendants.
7. I do find much susbstance in the submissions made by the learned counsel for the plaintiff. Plaintiff’s claim cannot be thrown away merely on the ground that it has not been proved that the railway was entrusted with 2,200 bags weighing 1,100 quintals of Urea. In that case, the liability would be fastened on the consignor, whose duty was to prove the quantity entrusted to the railway. The story propounded by the plaintiff that the wagon was tampered with, has not been found established by both the Courts. I agree with the findings recorded by the first appellate Court for the reasons stated by it in the judgment.
8. The learned counsel for the defendant No. 2 drew my attention to section 77 of the Indian Railways Act and argued that the railway administration is made liable as a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872 (IX of 1872), for the loss, destruction, damage, deterioration or non-delivery of goods carried by railway. In order to fasten the liability on the railway under the Indian Railways Act, it is necessary to prove that the quantity was actually entrusted it for transit. In the present case, there is no evidence on record to show that, in fact 2,200 bags weighing 1,100 quintals of Urea were entrusted to the railway.
9. The railway receipt (Ex.D-1) mentions in the description of articles that the wagon described therein “said to contain 2,200 bags” of Urea weighing 1,116.72 quintals. Thus, the railway receipt does not sepcifically mention as to the actual number of bags which were booked as admitted by the railway. It was merely an estimate according to the declaration of the consignor. It was a wagon load which was sealed by the railway. The burden regarding the actual quantity of Urea has not been discharged as held by both the Courts. It cannot be said that the railway verified the number of bags and the quantity of Urea. Therefore, the railway receipt cannot form the basis of fixing the responsibility for any shortage. The consignor should have proved the actual number of bags and the weight entrusted to the railway by leading direct evidence. The case of Mahabir Kirana Bhandar v. Union of India, 1975 MPLJ 206 has rightly been applied by the Courts below to the facts of this case.
10. Under these circumstances, the respondent No. 2 would be liable to account for the shortage in the consignment. Hence, a decree against the respondent No. 2 will have to be passed.
11. In the result, the appeal succeeds and is allowed. Accordingly, a decree against the defendant No. 2, respondent No. 2 herein (Food Corporation of India) for Rs. 1,598.76 and odd is passed. The respondent No. 2 shall bear their own costs and shall also pay costs of the plaintiff-appellant herein. Counsel’s fee as per schedule, if certified.
A decree be drawn up accordingly.