{"id":209931,"date":"1977-08-11T00:00:00","date_gmt":"1977-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-bihar-state-co-operative-vs-union-of-india-uoi-and-ors-on-11-august-1977"},"modified":"2017-12-05T22:36:42","modified_gmt":"2017-12-05T17:06:42","slug":"the-bihar-state-co-operative-vs-union-of-india-uoi-and-ors-on-11-august-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-bihar-state-co-operative-vs-union-of-india-uoi-and-ors-on-11-august-1977","title":{"rendered":"The Bihar State Co-Operative &#8230; vs Union Of India (Uoi) And Ors. on 11 August, 1977"},"content":{"rendered":"<div class=\"docsource_main\">Patna High Court<\/div>\n<div class=\"doc_title\">The Bihar State Co-Operative &#8230; vs Union Of India (Uoi) And Ors. on 11 August, 1977<\/div>\n<div class=\"doc_citations\">Equivalent citations: AIR 1978 Pat 213, 1978 (26) BLJR 177<\/div>\n<div class=\"doc_author\">Author: P Sahay<\/div>\n<div class=\"doc_bench\">Bench: N P Singh, P Sahay<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>  Nagendra   Prasad   Singh,   J.  <\/p>\n<p> 1. This revision application has been filed on behalf of the plaintiff under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as &#8216;the Act&#8217;) for setting aside a judgment and decree passed by the Small Cause Court Judge dismissing the suit of the plaintiff. It was heard by a learned single Judge of this Court who referred this case to a Division Bench.\n<\/p>\n<p> 2. It appears that the plaintiff-petitioner filed a suit for realisation of Rs. 281.62 Paise, being the price of D.A. phosphate which had been consigned on 14-4-70 from Kanta Pukur to Narkatia-gan.i by the North Eastern Railway. The consignor was the Food Corporation of India which had consigned 440 bags of D.A. phosphate, each bag containing 50 Kgs., in favour of the plaintiff under Railway Receipt dated 14-4-70 (Ext. A). According to the case of the plaintiff when that consignment reached at. Nar-katiaganj railway station it was in a damaged and pilfered condition and a shortage of 251 kgs. was discovered. A shortage certificate was also granted by the railway at the time of delivery. After serving the notice the aforesaid suit was filed for a decree of the amount mentioned above along with Interest. On behalf of the railways a written statement was filed disputing the claim made on behalf of the plaintiff. The defence, inter alia, was that the consignment was<\/p>\n<p>loaded in the wagons supplied by the defendant to the consignor. It was also asserted that the bags which had been used for containing the phosphate in question were of inferior quality and had not been properly sewn. In such a situation the railways cannot be held responsible for shortage, if any, found at the destination. The plaintiff examined two witnesses. No witness was, however, examined on behalf of the railways. On behalf of the defendant railways two documents were exhibited and marked, namely the railway receipt (Ext. A) and a letter from the Chief Commercial Superintendent, Gorakhpur. The court below, however, upholding the claim of the plaintiff that there was shortage of 251 kgs, dismissed the suit on the finding that the shortage had occurred due to the negligence and carelessness of the consignor.\n<\/p>\n<p> 3.   The learned   counsel   appearing for the   petitioner   has   submitted   that   the court &#8216;below, on the facts and in the circumstances   of   the   case,    has   wrongly placed the onus on the plaintiffs.    He has submitted  that in   absence   of   any   evidence adduced on behalf   of  the   defendants that there was negligence or carelessness on   the   part   of  the   consignor, the court below could not have absolved the railways of their responsibility under the   statute.     The   learned   counsel   also pointed   out   that   the   court   below   has committed    a    serious    error    of   record while making   reference to paragraph   3 of  the   plaint.    In   paragraph   6   of   the judgment the learned Judge has observed that   it  was   quite  clear  from   paragraph 3 of the plaint that  the  consignment  was   not properly handled  by the consignor    and   was    loaded   in    a   bad, damaged    and    pilfered    condition.    We have  looked into that  paragraph  of   the plaint.     The   plaintiff   has   never   made such statement   in   the   plaint.    On   the other  hand, it has  stated  that the  consignment   reached  Narkatiaganj    railway station in a damaged and pilfered   condition.\n<\/p>\n<p> 4. Now the question is whether this court can interfere in exercise of the power under Section 25 of the Act. In the instant case, the forwarding note which could have shown whether the package was defective or not, has not been produced by the railways and no explanation has been given for its non-production. I have already pointed out that no witness has been examined on be-\n<\/p>\n<p>half of the railways to   prove that  the shortage was due to the negligence   and carelessness of the consignor.\n<\/p>\n<p> 5.   Learned counsel appearing   on   behalf  of the railways submitted that   on the facts   and   in   the   circumstances   of the present case, there was no such onus on the railways to prove that the shortage was due to  the   negligence   of   the consignor.    In support of this contention reliance has been placed on a Bench decision of this court in the case of Union of India v. Chhatelal Shewnath Rai (AIR 1973 Pat 244).    In that case it was held that where   it  was not   shown   by   the consignor that a defective or leaky wagon for carriage  of  goods   was   supplied   to him   at   the despatching  station   and   it was merely asserted by him that when the goods reached destination the wagon was   leaking   badly,    thus    resulting   in short   delivery,   it   would   be   presumed that the wagon   supplied   was   in   good condition.    It  was also pointed out that from   a  mere   mention   of   a   particular weight of  the   consignment   on   railway receipt     and     forwarding     note     which carried such endorsement only for calculating  the freight   charge, no   admission on behalf of the railway  as to   correctness of the weight loaded could be made out to fix the liability.    But in my opinion, the aforesaid judgment is of no help to   the   defendants    opposite   party.    In that case, the loading had been done  at the station of despatch by the consignor himself    under    L\/U    condition,    which means the  wagon   was   loaded   by   the consignor himself and was to be unloaded  by  the consignee at   the   destination point.    In  that  background   it was    observed that the consignor    has   to   lead evidence and to prove to the satisfaction of the court that the railway  was   responsible for the shortage.    Ratio of that case will not apply to cases where   the consignor has handed aver the goods   to the railway and it  has been   loaded by the railway.    In the instant case, it will appear from the  railway receipt (Ext, A) Itself that the goods had been loaded by the labourers of the railway and loading charges had been realised.    The consignee was, however, to unload.    Therefore, the despatch was not under L\/U condition.    In such a situation the responsibility was of the railways to check up as to   in   which   condition  the   goods   had been entrusted to it for consignment. In my view, In   such   cases  the  principles laid down by a Bench decision   of this<\/p>\n<p>court, in the case of Sheonand Rai Gajanand v. Union of India  (1968 BLJR 22) is applicable,   In that case four bales of cotton yarn were booked  under railway risk.    The    consignment    reached    Darbhanga in damaged  condition   and   open delivery was given.    Thereafter    a   suit was filed  against the railway.     It    was however,  dismissed  by the Small Cause Court   Judge.    On   revision   being   filed this  Court decreed the suit for the loss caused to   the  plaintiff  and it was   observed  that in such cases the   railways would not be relieved of its liability unless it also proves that it had no notice of  such  defective packing at   the    time the consignment was booked.    The court noted that on that point no evidence was adduced on behalf of the railway.    Even the  forwarding note which   could   have shown   whether the packing was   defective or not,  had not been  produced   by the   railway   and    no   explanation   was given   for   its    non-production.    In    my view, the aforesaid judgment is fully applicable to the facts and circumstances of the  present case.    In   the   instant   case also, the railways had, apart from proving defective   packing,  to  prove further the fact that  at   the time  the   consignment  was   booked   the   railway   administration had no notice of the  defective packing.    On all these points no evidence has been adduced.   In such a situation I am left with no option but to set  aside the judgment   and decree passed by the Small Cause Court Judge and to decree the suit of the plaintiff with costs throughout  and interest pendente lite at  6 per cent per annum with future interest at 6 per cent per annum till realisation of the amount.\n<\/p>\n<p>  P.S. Sahay, J.\n<\/p>\n<p> 6. I agree.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Patna High Court The Bihar State Co-Operative &#8230; vs Union Of India (Uoi) And Ors. on 11 August, 1977 Equivalent citations: AIR 1978 Pat 213, 1978 (26) BLJR 177 Author: P Sahay Bench: N P Singh, P Sahay JUDGMENT Nagendra Prasad Singh, J. 1. This revision application has been filed on behalf of the plaintiff [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-209931","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>The Bihar State Co-Operative ... vs Union Of India (Uoi) And Ors. on 11 August, 1977 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-bihar-state-co-operative-vs-union-of-india-uoi-and-ors-on-11-august-1977\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Bihar State Co-Operative ... vs Union Of India (Uoi) And Ors. on 11 August, 1977 - Free Judgements of Supreme Court &amp; 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