1. MAKSUM-UL-HAKIM, J.--This is a defendant's appeal and is directed against the judgment of the Subordinate Judge, 2nd Court, Dacca, passed in Money Suit No, 19 of 1959, whereby he decreed the plaintiff's suit with costs.
2. The facts giving rise to this appeal are as follows:-- The plaintiff Messrs Adamjee Jute Mills Ltd. on 4-7-1957, delivered a consignment of 30 bales of jute, each containing 300 bags of B. Twill new gunny bags under R/R No, 529386 at Narayanganj. The plaintiff-company (hereinafter described as the company) paid Rs, 204-6-0 on account of freight.
3. On 18-7-1957 the said Company delivered another consignment of 70 bales, each containing 300 bags of B. Twill new gunny bags, to the Eastern Bengal Railway under R/R No, 548545 at Narayanganj. For this consignment a Railway freight of Rs, 239-5-0 was also paid. These consignments were required to be carried to Chittagong for delivery to Messrs Orient Agencies Limited for onward shipment. The consignment of 30 bales was loaded in wagon No, EBC 22117 and the consignment of 70 bales was loaded in wagon EBC 0631.
4. For over one year the goods, however, were not delivered to the consignee. Ultimately on 29-8- 1958, open deliveries were made of the consignment of 30 bales under R/R 529386 and on 27-10- 1958 and 28-10-1958, a consignment of 70 bales under R/R 548545 were given open delivery. At the time of delivery the goods were in damaged condition as they were taken out from water filled wagons of different numbers. Before giving delivery the survey of the goods was held by the officer (J/1 goods) of the defendant and 13 bales in the consignment of 30 bales and further 19 bales out of the consignment of 70 bales were found entirely damaged. Subsequently three bales out of these 13 bales were accepted by the ship but the rest were shut out. It was further alleged in the plaint that Messrs Sinclair Murray (Pak.) Limited, sold the damaged bales and recovered Rs, 2,100.8- 0 for the damaged jute goods in 10 bales out of the 30 bales whereas their value was Rs, 5,547-3-0.
5. Similarly they realised Rs, 3,783-12-0 by selling the damaged jute goods of 19 bales out of the consignment of 70 bales. Their actual price, however, was Rs, 8,978-10-0. It was further stated that the total thus realised by selling the damaged jute goods amounted to Rs, 5,884-4-0 against their total value of Rs, 14,525-13-0. This real value is calculated at the rate of Rs, 124 per one hundred bags. In this value, however, sale tax, bailing charges and freight were not included. The plaintiff, therefore, contended that for the loss of this value alone, the defendant was liable to pay a sum of Rs, 8,641-0-9 pies.
6. It was further pointed out in the plaint that because of the delay in shipment of 71 bales due to the gross negligence and misconduct of the defendant, the price of the jute goods fell. It came down from Rs, 372 per bale at the rate of Rs, 124 per 100 bags to Rs, 345 per bale at Rs, 115 per one hundred bags. The plaintiff lost an amount of Rs, 1,917 at the rate of Rs, 9 per 100 bags due to this delay in delivering the goods. It was pointed out that the defendant was, therefore, liable to make good the loss of this amount of Rs, 1,917 to the plaintiff.
7. When the goods were not delivered within a reasonable time, the company served notice under section 77 of the Railway Act demanding payment of Rs, 38,360-11-0 from the defendant as the price of the jute goods. No reply was, however, received by the plaintiff-Company. Thereafter they served notice under section 80 of the Code of Civil Procedure on the General Manager of the defendant on 27-6-1958. Then the deliveries were received as stated earlier, after survey and assessm ent as well as sale of damaged bales. The plaintiff-Company thereafter demanded compensation for loss as stated earlier. The defendant, however, denied liability and as such a further notice under section 80, Civil Procedure Code was served on them without any redress.
8. Accordingly the plaintiff filed the present suit for recovery of a sum of Rs, 10,558-9-0 with costs.
9. The defendant Railway resisted the suit of the plaintiff-Company by filing a written statement. It was contended therein that they were not liable for the loss as the consignment was booked to Chittagong Port Station which is under the control and administration of a different railway known as Chittagong Port Railway. The defendant, the East Bengal Railway, was not responsible for the laches committed by the Chittagong Port Railway. Subsequently an additional written statement was also filed by the defendants. It was further pointed out in the written statement that the suit was not maintainable as the Chittagong Port has not been made a party in the suit. Furthermore the liability for the damage and the loss was not admitted by the defendant. It was claimed in the written statement that wagon No, 0531 carrying the 70 bales under R/R No, 54854 dated 18-7-1951, met with hot axle at Asuganj and the contents thereof were transhipped on 20-7-1957 into wagon Nos, 8024 and 22959 which were made over to Chittagong Port Marshelling Yard by C. S. 72 Dn. of 24-7-1957 in good condition. With regard to other consignment it was claimed that wagon No, 22117 holding 30 bales was transhipped on 20-7-1957 at Sitakund into wagon No, 8088 and the same was made over to the Chittagong Port Railway or Chittagong Port Marshelling Yard by C. S. 38
(down) of 4-8-1957 in good condition. It was pointed out that as the East Bengal Railway made over the consignments in good condition to the Chittagong Port Railway, so the present defendant had no liability in the matter and the plaintiff's remedy, if any, was only against the Port Railway. It was further pointed out that the defendant was not guilty of any negligence or misconduct.
10. Technical objections were also taken regarding the form and the contents of the notice under section 80, Civil Procedure Code and under section 77 of the Railways Act and they therefore contended that the East Bengal Railway was not at all liable and the plaintiff's suit was liable to be dismissed.
11. The learned Subordinate Judge after perusing the pleadings framed the following issues:-- "(1) Whether the damage to the consignment of jute was done due to the negligence of the officers of the defendant.
12. (2)Whether the amount claimed is correct.
13. (3)Whether the plaintiff is entitled to a decree."
14. During the trial the plaintiff examined one witness and the defendant examined two witnesses. Both the parties exhibited a number of documents to substantiate their respective cases. The only witness examined by the plaintiff is one of their employee G. I. Bewa. He stated in his evidence that 30 and 70 bales of jute were consigned to the defendant at Narayanganj for shipment to Chittagong and for delivery at Chittagong Port. Each bale contained 300 bags of jute. At the time of the consignment price was Rs, 124 for 100 bags. The goods were given delivery by the defendant after one year; the jute was found damaged at the time of taking delivery from the defendants.
15. This happened due to rain water. He further stated in his examination-in-chief that in one consignment 10 bales were completely damaged and in the other 19 bales were damaged. Survey was held by Messrs Sinclair and by the Railway Surveyor. He further stated that at the time of the delivery the prevailing price of the jute goods was Rs, 115 per 100 bags. He further stated that the plaintiff demanded compensation for the loss and damage which took place due to the negligence of the defendant E. B. Railway. He further stated that notice under section 77 of the Railways Act was duly served on the Railway but they did not explain the reason for such delay. He admitted that the defendants, however, relinquished the demurrage. He claimed that the Port Station was under the Railway Administration meaning thereby the defendant. He stated that the claim was true and correct and the demand of Rs, 10,558-9-0 was justified. In cross-examination he stated that the plaintiff maintained a siding within their area and the railway used to place wagons there on their request. The sealing and loading was done by the plaintiff. He stated in cross-examination that they inspected the wagon before loading and executed risk note B. He further stated that according to his information the jute was in good condition at the time of the loading. They wrote to the defendant for the first time on 10-10-1957 to deliver the jute goods. They again wrote on 30-11-1957 to which they did not receive any reply. In reply to a question in cross- examination he stated that be did not know if any consignment reached the port on 27-7-1957 and another on 4-8-1957. He pointed out that the jute goods in question were booked on 4-7-1957 and 18-1-1957. He denied the suggestion that they did not approach the defendants for taking delivery.
16. He made it clear in cross-examination that the consignee the Orient Agency is their clearing agent and this company approached the defendants for taking delivery. He, however, did not know the details as to when and where the consignee approached the defendants. He admitted that he did not personally inspect the jute goods and was not present when the survey was carried out and also did not know how the jute goods were sold. He further admitted that he did not produce any paper to show the cost of production. He also admitted that he did not produce any paper to show the price of raw jute at the time of their purchase. He, however, proved Exh. 5 which is the price list at the time of to king delivery of the consignment from the Railway. He stated that he served notice under section 80, Civil Procedure Code and section 77 of the Railways Act before taking of the delivery of the jute goods. He admitted that no notice was served by the plaintiff on the General Manager of the Port Railway.
17. This is the only witness examined on behalf of the plaintiff. A number of documents were, however, filed and exhibited on behalf of the plaintiffs. Exh. 1 is the notice dated 10-10-1957 from the plaintiff to the defendant under section 77 of the Railways Act. Exh. 1(a) is another office copy of a letter dated 12-10-1957 from the plaintiff to the defendant demanding the goods and in default compensation under section 77 of the Railways Act. Exh. 1(b) is another copy of similar demand notice from the plaintiff to the defendant which is dated 8-11-1957. Exh. 1 (c) is another letter from the plaintiff to the defendant demanding compensation for the goods and is dated 10-2-1959. Exh. 1(d) is a letter dated 28-5-1959 from the Chief Traffic Manager, Chittagong Eastern Bengal Railway to the pleader of the plaintiff wherein it was stated that as the claim relates to Port Administration so the notice and demand letters were forwarded to the Chittagong Port for disposal. Exh. (1)(e) is a letter from the Deputy Traffic Manager, Chittagong Port Railway to Messrs Orient Agencies Limited who are the clearing agents for the plaintiff and the consignee under this consignment and is dated 6-11-1959.
18. In this letter the Deputy Traffic Manager, Chittagong Port Railway stated that from the open delivery report, which was made on assessm ent in presence of the two material parties and Messrs Orient Agencies Limited it was found that only 1300 pieces of gunny bags were affected and damaged out of the entire consignment and as such the Chittagong Port Railway was prepared to settle the claim for this quantity alone. Exh. 2 and Exh. 2 (a) produced by the plaintiffs are the two notices under section 77 of the Railways Act and are dated 25-11-1957 and 30-11-1957 respectively. Exh. 2(b) and Exh. 2 (c) are two notices under section 80 of the Code of Civil Procedure which were served on the defendants. Exh. 3 is a letter dated 30-10-1958 which was sent by the Superintendent of Jetties of Chittagong Port to the consignee Messrs Orient Agencies Limited, giving extracts of the open delivery report relating to the consignments. Exh. 3(a) is another letter dated 17-9-1958 to Messrs Orient Agencies Limited--the consignee for warding an extract of the assessment report of the consignment of 30 bales in question. Exh. 5 is a market report showing the price of the goods at the time of the delivery to the plaintiffs. Exhs. 4 and 4(a) are the postal receipts showing the despatch of legal notices. These are all the documents produced by the plaintiffs to substantiate their case.
19. On behalf of the defendants, two witnesses were examined. D. W. 1 is S. L. Das who was a tally clerk at Sitakund in the early part of 1957 stated that he received one wagon No, 22117 loaded with jute goods on 6-7-1957. Its axle became hot and as such they transhipped the jute goods to another wagon being wagon No, 8088 on 27-7-1957. The jute goods were in very good condition when the transhipment took place. The wagon was despatched to Chittagong on 30-7-1957. In cross- examination he stated that he got order to tranship the jute goods. The next witness for the defendant is one of their employees named Faiz Buksh who was the Goods Clerk at Ashuganj in 1957. He stated that on 19-7-1957 wagon No, 0631 got hot axle and accordingly the goods were transhipped to wagon No, 8024 and wagon No, 22953 on 21-7-1957. The goods were despatched on the same day and they were in good condition. He further stated that this despatch had been duly noted in the diary book. In cross-examination he denied the suggestion that actually the wagon did not receive hot axle. These are all the witnesses examined on behalf of the defendant. Apart from this, the defendant also produced two relevant risk notes which were executed by the plaintiff in connection with the consignment of 100 bales of gunny bags and they are marked as Exhs. A and A (1). The forwarding notes in connection with these were also produced by the defendant and marked as Exhs. B and B(1). These are all the documents produced on behalf of the defendant.
20. The learned Subordinate Judge after considering the materials on record found that the notice under section 77 of the Railways Act was served within three months from the despatch of the goods from Narayanganj and that the defendants could not make over the goods as they could not find out the number of the wagon. Accordingly the damage was caused on account of the wagon remaining at the railway station for a period of one year and the defendants were guilty of negligence and misconduct and hence they were liable to pay compensation to the plaintiffs. With regard to the liability of the Port Railway, Chittagong, the trial Court found that the Government created a separate department for efficient administration but the same is managed and controlled by the defendant and is a branch of the Railway Administration, and accordingly the Port Railway is not a necessary party. The learned Judge further found that the notices were lawfully and regularly served and the plaintiff was entitled to his relief. In assessing the compensation realisable by the plaintiff, the learned Judge found that the plaintiff is entitled to recover the total amount claimed, that is to say, Rs, 10,558 and 9 annas, and accordingly granted decree with costs. This decree has been assailed before us by the defendant.
21. Before taking up the points raised by the learned Senior Government Pleader we would like to refer to a petition filed by him. This is an application for additional evidence wherein the learned Senior Government Pleader has sought our permission to produce a letter dated 5-8-1958, which was sent by the Chief Traffic Manager of the defendant-Railway to the lawyer of the plaintiff, wherein it was contended that the Deputy Traffic Manager, Chittagong Port is the competent authority to deal with the claim of the plaintiff-Company. It was further pointed out in that letter that the goods in question were made over to the Port Railway in July and August 1957, in good condition and accordingly the defendant-Railway is not liable for the damage. This application was filed by the learned Senior Govenment Pleader at the time of his reply after the plaintiff-respondent's learned Advocate had concluded his arguments. This first appeal was filed in this Court on 3-11-1960, and it is regrettable to find that it took along ten years for the Railway Authorities concerned to make this letter available to their lawyer for filing the present application at this belated stage. The explanation for non-production of the letter before the trial Court is not at all convincing. Be that as it may, the facts which have been sought to be brought before the Court also does not appear to be very material. Relevant facts have already been placed before the Court through the deposition of the two witnesses examined by the defendant. In view of the above, we are of opinion, that this application for additional evidence is entirely unnecessary and accordingly we reject the same.
22. The learned Senior Government Pleader in pressing the appeal has contended firstly that in a suit of this nature it is the consignee alone who is entitled to file the suit. The consignor has no locus standi to bring a suit of this nature. In order to consider this point, it is necessary for us to refer to subsection (1) of section 72 of the Railways Act which is to the following effect:-- "72(1) The responsibility of a Railway administration for the loss, destruction cr deterioration of animals or goods delivered to the administration to be carried by Railway shall, subject to the other provisions of this Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872 (IX of 1872)."
23. From this it follows that the responsibility of a carrier for the loss, destruction or deterioration shall be that of a bailee in accordance with the provisions of sections 151,152 and 161 of the Contract Act.
24. Bailment has been defined in section 148 of the Contract Act in the following terms :-- "A 'bailment' is the delivery of goods by one person to another for some purpose, upon a contract that they shall when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor'.
25. The person to whom they are delivered is called the `bailee'."
26. From this definition it is clear that under this contract the Railway is the bailee and it is the consignor who is the bailor. Section 151 of the Contract Act requires that the bailee should take such care of the goods as a man of ordinary prudence would take of his own goods under similar circumstances. Section 161 of the Contract Act enjoins that if due to the default of the bailee the goods are not returned or delivered or tendered at the proper time then the bailee is responsible to the bailor for any loss, destruction or deterioration of the goods. From this provision it is obvious that the bailee, that is to say, the Railway is liable for damages to the bailor that is to say, the consignor if the loss is due to the negligence of the Railway. It is clear therefore, that the person who entrusts the goods to a carrier is ordinarily entitled to sue the carrier for any loss or damage sustained by him due to the negligence or default of the carrier. The responsibility of the bailee, that is to say, the carrier is terminated only when they delivered the goods in accordance with the terms of the contract or disposes of the same as undertaken under the contract. From the above it is evident that on principle as well as on authority the consignor is entitled to sue the carrier for any loss sustained by him.
27. This, in our opinion, however, does not rule out circumstances where the consignee is also entitled to sue the carrier for the loss. The consignee, if acquires title to the property, either by arrangement with the consignor or in accordance with the original contract in between the consignor and the carrier, can, under certain circumstances, acquire a right to recover damages. That does not, however mean that in every case the consignor is debarred from instituting a suit for realising damages. From the sections quoted above it is obvious that in the contract of bailment n the consignee himself is not a party and as such from the very contract of bailment the consignee cannot acquire a right unless there are some other facts giving those rights to the consignee. In Halsbury's Laws of England, Third Edition, Volume 4 at page 196 in Article 481 it has been stated as follows :- "Action by consignor who remains owner. Delivery to a carrier, however, does not necessarily vest the property in the goods in the consignee; and so, if the property in the goods has never passed to the consignee, the consignor should sue for loss or damage. Where goods are sent to the consignee for sale on approval, the consignor alone has a right to sue if the goods are lost or damaged in transit."
28. In the case of Chhangamal Harpaldas and another v. Dominion of India and another , Shah, J., with whom Palnitkar, J. concurred observed as follows:-- "Two propositions appear to be well-settled. The right of action to recover compensation for loss or damage to the goods ordinarily vests in the consignor. Where the goods lost or damaged in transit are the subject-matter of a contract of sale, the owner of the goods may in the absence of a contract to the contrary sue the Railway Administration. Therefore a consignee who is in possession of a Railway Receipt duly endorsed by the consignor may maintain an action for compensation for loss of the goods covered thereby, but he can do so not because he is the consignee but because he is the owner of the goods. A consignor 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 contractu nor ex delicto."
29. We respectfully concur with the above view as the same clearly follows from the legal provisions quoted above.
30. Mr. S. A Chowdhury has relied on the case of The M. S. M. Ry. Co. Ltd. v. K. Rangaswainy Chetty and another , in support of his proposition that in such contract for carriage of goods, it is the consignee only who can sue for loss caused by the nondelivery of the goods after the goods have been delivered to the Railway Company. It true that the head-note of this case is to that effect. In our opinion, however, this proposition does not follow in such broad term from the decision itself. The facts are not elaborately given in the judgment. Phillips, J., however, observed in this judgment to the following effect:-- Under section 91 of the Indian Contract Act the other goods had been delivered to Munisami Chetty and properties in them had passed to him. Plaintiffs in consigning the goods, some of which had never been their property, only acted as Munisami's agents. If the property had passed from plaintiffs they have sustained no loss by the non-delivery of the goods and consequently no damages."
31. It is obvious from the above observation that the consignor in that case had no interest of their own in the property concerned. Under that circumstance it can be assumed that the consignor in that case had already lost their right in the property in question. In view of that it was held that the consignor could not claim damages. If, however, this case is taken to be an authority for the proposition that in such contracts it is the consignee alone who could file suits for compensation for non-delivery, then we must say that we are unable to subscribe to that view in view of the fact1 2 that the legal provisions do not warrant such a Broad Proposition.
32. The learned Senior Government Pleader has also cited another Single Bench decision in the case of Sri Rain Krishna Mills Ltd. v. Governor-General-in-Council . The observations of Beevor, J., in this case can also be read in the same line. In course of the judgment the learned Judge observed as follows:-- "It is conceded that the petitioner was not named in the railway receipt as the consignee. Actually the consignee is shown in the railway receipt as self i,e,, the same as the consignor Messrs Baijnath Ramkisun. Nor was any endorse-ment made by that firm in favour of the petitioner."
33. It was held in that case that the plaintiff was not the consignee of the goods and as such the decision of the Court below was affirmed and the suit of the plaintiffs was dismissed on the observation that the plaintiff cannot be treated as the consignee of the goods or the endorsee of the Railway receipt. It is obvious, therefore, that the point decided in this case is of no assistance to the learned Senior Government Pleader. The view that we are taking are supported by other precedents. We find that the observation of Mukerji, J., in the case of G. I. P. Railway v. Firm Radhey Mal Manni Lal supports our view. The same runs as follows:-- "The lower Court found that the plaintiffs consigned not only their own goods, but some goods which their customer purchased for himself and had asked them to consign with the plaintiffs' own goods. An argument was based on this fact, viz., the plaintiffs were not the owners of the entire goods and that, therefore, they could not maintain the suit. To this argument the clear answer was that as between the Railway Company, on the one hand, and the plaintiffs, the consignors, on the other, the Railway Company could not dispute the title of the consignors to the goods."
34. The case of Dondapati John v. Vaddi Subrahmani , also supports the view that we are taking.
35. The learned Senior Government Pleader has also cited the case of Dominion of India and another v.
36. Messrs Gaya Pershad Gopai Narain . In this Full Bench decision all that has been held is that a consignee who is not the owner of the goods but to whom the goods were consigned on commission basis for the purpose of sale is entitled to maintain a suit for loss in respect of the damage caused to the goods in transit. This proposition need not be disputed. We have already stated that under certain circumstances a consignee is also entitled to bring a suit for recovering damages if it is shown that under the original contract such a right has been conceded in favour of the consignee or subsequently the consignee comes to acquire a title in the property in question. It is nowhere laid down in this case that a consignor is not entitled to bring a suit for recovering damages under the original contract of bailment even though the title to the property continues to be with him. It has to be remembered in this connection that a Railway receipt as well as the other documents in connection with consigned goods for carriage are mercantile documents of title and their valid transfer can effectively give rise to substantial rights. See the case of The Firm of Dolatram Dwarkadas v. The Bombay' Baroda and Central India Railway Company . From the above discussion, it is evident that the contention of the learned Senior Government Pleader that the suit was not maintainable at the instance of the consignor and that consignee alone could bring such a suit, has no substance. Nothing has been placed before us to show that the plaintiff- respondents had parted with the title over the property. On the contrary the evidence of P. W. 1 clearly shows that the consignee Messrs Orient Agencies was only the clearing agent of the plaintiff-respondent.
37. The next point raised by the learned Senior Government Pleader is that the claim should have been lodged against the Chittagong Port Railways in view of the fact that in the risk note as well as in the forwarding note it was clearly stipulated that the goods were to be given delivery of at Chittagong Port Station for shipment to Karachi. Mr. S. A. Chowdhury has placed before us a Notification published in the Gazette of Pakistan on 21st January 1953, which is numbered as E 520621/6-2 to show that the administration of the Port of Chittagong in respect of the working of Jetties3 4 5 6 7 Warehouse Railway Sidings was placed in charge of a newly appointed Administrative Officer who was designated as General Manager, Port and he was directly under the Railway Division, Ministry of Communication. From this notification the learned Senior Government Pleader wanted to say that the defendant, that is to say, the East Bengal Railway did not have any responsibility for the non-delivery of the goods in question. The learned Senior Government Pleader further contended that the Chittagong Port Railway is a different entity and if anybody was responsible for the damage, it was that Railway and not the defendant. We are unable to accept this contention in view of the fact that section 80 of the Railways Act runs as follows :- "Notwithstanding anything in any agreement purporting to limit the liability of a Railway administration with respect to traffic while on the Railway of another administration, a suit for compensation for loss of the life of, or personal injury to a passenger, or for loss, destruction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the Railways of two or more railway administrations, may be brought either against the Railway administration from which the passenger obtained his pass or purchased his ticket, or to which the animals or goods were delivered by the consignor thereof, as the case may be, or against the Railway administration on whose Railway the loss, injury destruction or deterioration occurred."
38. From the reading of the section it is abundantly clear that the Railway which takes delivery of the goods is required to act as an agent on behalf of the other Railways over which the goods have to pass before the same can be delivered to the parties in question and an individual is entitled to bring a suit for damages against the Railway to whom the goods are consigned or the other Railway in whose area the loss was sustained or even against both. It is not possible for a consignor or a party who delivers the goods to a particular Railway to know as to where and how the goods have been damaged.
39. In view of such contingency the Legislature has protected the interest of a citizen by providing the salutary provision of section 80 of the Railways Act. Sulaiman, A. C. J and Kendall, J., in the case of Great Indian Peninsula Railway and others v. Jugul Kishore Mukat Lal , observed as follows :- "The last point urged on behalf of the Company is that under section 80 of the Indian Railways Act the plaintiff had the option of suing either the B. I. Railway to which the goods were delivered or the G. I. P. Railway on whose Railway the deterioration occurred. It seems to us that although section 80 gives the plaintiff that option it by no means prohibits him from impleading both the companies in a suit. Indeed in many cases it may be difficult for the plaintiff to know before the institution of the suit on which line the loss actually occurred. There is therefore no good reason for holding that the plaintiff could sue only one of the two companies and not both. Similar is the observation of Jwala Prasad, J., in the case of Jamunadas Ramjas v. East Indian Railway Co. Ltd. and another AIR 1933 Pat. 630 Jwala Prasad, J., observed as follows :- `The principle underlying section 80, is this that the Railway which takes delivery of goods with an undertaking to carry it safe is an agent for the Railways over which the goods have to pass in order to reach its destination and vice versa. The consignor is a third person. He contracts with the particular railway to deliver to him at a particular station the goods consigned and the arrangement of carrying the goods is between the railways over which the goods has to pass and has nothing to do with the consignor. Therefore the deterioration in this case having occurred to the plaintiff at the place where the goods had to be delivered back, namely the B. N. Railway, that Railway, is as much liable as the E. I. Railway, the original undertaker, to carry the goods safely.
40. Therefore under the law and upon a true construction of section 80 the B. N. Railway was equally liable as the E. I. Railway jointly and severally; and as the E. I. Railway is being absolved upon the ground that the Secretary of State for India-in-Council though a necessary party was not impleaded in the suit, the liability of the B. N. Railway remains and therefore the plaintiff is entitled8 to a decree against the B. N. Railway."
41. It is obvious, therefore, that the claim can be effectively lodged against the defendants even though the delivery was not effected by the Chittagong Port Railway Authorities. Even if we E accept the contention that the Chittagong Port Railway was an independent organisation from that of the defendant, still the liability of the defendant cannot terminate on that ground. This point also, therefore, does not appear to have any substance.
42. It has been next contended by the learned Senior Government Pleader that the plaintiff failed to prove negligence and default by positive evidence as is required under the terms of the risk note Exh. B and such the suit should be dismissed. This argument in our opinion, is in conflict with the terms clearly stipulated in paragraph B of the risk note wherein it has been stipulated that the railway administration is bound to disclose to the consignor how the consignment was dealt with throughout the time it was in that possession or control and if necessary to give evidence thereof before the consignor is called upon to prove misconduct The defendant has given evidence to show that the goods reached in good condition to Chittagong but what happened thereafter for a period of one year was not placed before the Court through any testimony of any witness. The defendant possibly thought that the responsibility of showing the conditions of carriage and the circumstances relating thereto in the port area was not a concern of the defendant. We have already pointed out that that was an erroneous impression. It is obvious, therefore, that the initial onus that lay upon the defendant was not discharged. The want of negligence which was required to be proved by the railway itself was not so established by the defendant. The observations of the Judicial Committee of the Privy Council in the case of The Surat Cotton Spinning and Weaving Mills Ltd. v. The Secretary of State for India-in-Council and another concerning the responsibility of the railways under this provision in risk note is quite applicable in the facts of the present case. In view of the above, we find that this contention of the learned Advocate for the appellant also does not have any substance.
43. The last point urged by the Senior Government Pleader is to the effect that the Port Railway as well as the Messrs Orient Agencies were necessary parties in the suit and since they were not impleaded in the suit suffered from defect of parties. The plaintiff did not ask for any relief from the Port Railway and we have already pointed out on the authority of the principle as well as precedents that the plaintiff could proceed against either of the Railways. Moreover, Messrs Orient Agencies has simply an agent for a specific purpose as appointed by the plaintiffs. In view of the above, we do not find any serious defect in the suit for not impleading them in the proceedings.
44. These are all the points that were raised by the learned Senior Government Pleader. It is necessary, however, for us to examine another aspect of the case.
45. The plaintiff asked for a total claim of Rs, 10,558-9-0. From this amount, Rs, 8,700 was shown to be the price of jute goods. After the sale of the damaged goods they recovered a sum of Rs, 5,884-4-0 annas. It is obvious, therefore, that on this account they should get Rs, 4,903-12-0 annas. They also claimed another sum of Rs, 1,917 for the fall in the price due to the delay of nearly one year. Adding this amount with Rs, 4,903-12-0 annas, it comes Rs, 6,820-12-0 annas. Over and above this amount, the plaintiff also claimed a sum of Rs, 3,737-13-0 annas for sale tax freight and bailing charges. If we add this amount then the figure comes to Rs, 10,558-9-0 annas. From a consideration of the facts and circumstances we are, however, of opinion that no evidence in this case has been produced with regard to the payment of sale tax and bailing charges. Not a single word has been uttered by the only witness of the plaintiff with regard to this amount. We have also scrutinised the documents which have come up before the Court and we do not find any mention anywhere to the effect that the sale tax was in fact paid, and as to how much was paid for that purpose nor any material was brought before the Court showing the amount required for bailing charges on the contrary from the evidence of P. W. 1 as well as from Exh. 5 it will show that the price of the gunny9 bags as given at Rs, 115 per one hundred bags appears to be inclu-sive of the bailing charges. At any rate, no material has been placed before the Court which could entitle the plaintiff for a decree of an amount on this score. In view of this, we are of opinion, that the amount for sale tax and bailing charges could not be decreed in favour of the plaintiffs. On a consideration of the materials on record particularly the evidence of P. W. 1 as well as Exhs. 3 and 3(a) and also Exh. 1(e), we are satisfied that the goods relating to 29 bales were delivered after more than one year in a damaged condition. We are also satisfied from Exh. 5 as well as the evidence of P. W. 1 that the original price which was Rs, 124 per 100 bags at the time of consigning the goods fell to Rs, 115 per 100 bags at the time of giving delivery of the same to the plaintiff. As such the plaintiff is entitled to a payment at the rate of Rs, 9 per 100 bags for 71 bales which comes to Rs, 1,917. We are also satisfied from the materials that the plaintiff sustained a loss for 29 bales due to non-delivery of the goods to the plaintiffs in proper conditions. After deducting the amount recovered out of the sale of the salvage the amount comes to Rs, 4,903-12-0. Adding these two amounts the figure comes to Rs, 6,820-12-0.
46. The plaintiff has also proved from the forwarding notes Exhs. B and B (1) and other that they paid a total freight of Rs, 443-11-0 s. 204-6.0 annas plus Rs, 239-5-0 annas which comes to Rs, 443-11-0 annas) for the purpose of carrying 100 bales of jute goods; out of that 29 bales were not properly carrieJ at all. The plaintiff is clearly entitled to get a refund of the freight charge for this amount which in our opinion comes roughly at Rs,
130. In view of this the amount of Rs, 6,820-12-0 should be added with this Rs, 130 making the total at Rs, 6,950-12-0 annas. In our opinion, the plaintiff is entitled to a decree for this amount, that is to say, for Rs, 6,950-12-0 annas. we accordingly direct that the decree passed by the trial Court should be modified to the extent that the same should be for an amount of Rs, 6,950-12-0 annas instead of Rs, 10,558-9-0 annas. The plaintiff should get proportionate costs of the Court below to be calculated by it.
47. The appeal is accordingly allowed in part. In view of the facts and circumstances of the case let the parties bear their own costs of this Court.
48. T. H. KHAN, J.--I agree. AIR 1957 Bom. 276 AIR 1924 Mad. 517 AIR 1945 Pat. 387 AIR 1925 All. 656 AIR 1965 Andh. Pra. 260 AIR 1956 All. 338 I L R 38 Born. 659 I L R 52 All. 238 41 C W N 837