Nain, J.
1. This is a revision application under Section 25 of the Provincial Small Cause Court Act against the judgment of the Additional Judge, Small Causes Court, Poona, dismissing the petitioners' suit for recovery of a sum of Rs, 1,340.50, being damages for loss of a consignment of coal consigned from Pathardihi on the Eastern Railway to Poona.
2. The facts leading to the case, briefly stated, are that the petitioners ordered some quantity of coal from Pathardihi on the Eastern Railway. It is agreed that this quantity was 21 tons 3 quintals. The goods were consigned to Poona on January 14, 1963, in wagon No. 30913. The railway receipt states that the goods were to be carried from Pathardihi to Poona. It is not disputed that for some reason or another, the goods came to be transhipped from one railway wagon to another wagon at an intermediate station. The consignment arrived at Poona on or about January 30, 1963. The petitioners claimed re-weighment of the goods before taking delivery. The Railway Authorities at Poona refused to re-weigh the goods and asked the petitioners to take delivery without re-weighment. The Railway Authorities waited for a month and thereafter served the petitioners with a notice of sale under Sections 55 and 56 of the Indian Railways Act. The coal was, however, not actually sold, probably because it was a controlled commodity and required permission of the District Magistrate to sell it, and the wagon was sent to Matunga and thereafter to Parel and was then used up by the Railway Authorities. The petitioners thereafter filed in the Court of the Additional Judge, Small Causes Court at Poona, Civil Suit No. 2393 of 1983 for recovery of Rs. 1,340.50 as damages, alleging that the respondents had unlawfully refused to re-weigh the consignment and, therefore, delivery could not be taken and the goods were lost. The contention of the respondents is that under the law and the rules framed under the Railways Act, they were not bound to re-weigh the goods and that the petitioners should have taken delivery of such quantity as was offered to them and got the goods re-weighed themselves and filed the suit for damages for shortage. Their contention is that they were, therefore, not responsible for the loss.
3. In the suit a number of issues were framed but the material issue was whether the respondents unlawfully and illegally refused to re-weigh the goods before effecting delivery. On this issue, the lower Court held against the petitioners, and the result was that the suit was dismissed with costs. It is against this dismissal that the petitioner has filed the present revision application.
4. In ordinary law, the responsibility of a carrier who is a bailee within the meaning of Section 161 of the Indian Contract Act is governed by that section. If by the default of the bailee the goods are not returned, delivered or tendered at proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. In case of railways, Section 73 of the Indian Railways Act provides for general responsibility of a railway administration as carrier of goods. It provides that save as otherwise provided in the Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery in transit of goods delivered to the administration to be carried by railway arising from any cause, except certain causes with which we are not concerned. This responsibility, I might here state, may be varied by the goods being carried at owner's risk as is done in this case, which merely shifts the burden of proving negligence to the person entitled to the goods, whereas if the goods were carried at railway risk, it would have been the duty of the Railways to prove that they took as much care of the goods as an owner would take of his own goods.
5. The responsibility of a bailee in the ordinary law, including the responsibility of a Railway Company or Administration as a bailee prior to 1962, has been considered in a number of judgments and it is now well-established that a consignee or other person entitled to take delivery of goods is not entitled to insist on a condition that goods shall be weighed or examined and loss endorsed regarding damage and shortage, if any, before he takes delivery. Normally, it is the duty of such person to take delivery of the consignment in the condition in which it is found after giving notice to the officer giving delivery as to its condition and then sue the Railway for damage or shortage, if any. He has no right in law to insist that either the officer of the Railway should make an endorsement or that the consignee should be permitted to make an endorsement as to the damaged condition of the consignment in railway registers. It is further well-settled that the consignee or other person entitled to delivery is not justified in refusing to take delivery if the Railway did not agree to re-weighment or examination of goods. It has been so held in the case of Jusaf & Ismail Co. v. Governor-General , Managing Agents (Martin & Co.) v. Deokinandan : AIR1959MP276 , Dominion of India v. Netai Chandra : AIR1952Cal726 and D. R. L. Rly. Co. v. E. K. Colliery : AIR1963Pat46 .
6. Mr. Lalit for the petitioners has, however, relied strongly on Rule 118 of General Rules (Goods) of Goods Tariff Part I, framed under the Indian Railways Act and in force from January 1962. That rule reads as under:
118. Re-weighment of consignments at destination.-Railways do not undertake to weigh consignments at destination stations as a matter of course. Such weighments at destination stations can only be considered in exceptional cases when the condition of the consignment or package warrant this.
7. I am afraid, this rule also does not help the petitioners. It only provides that normally Railways do not undertake to weigh consignments at destination stations, but such weighment at destination stations can only be 'considered' in exceptional cases when the condition of the consignment or package warrants this. Now, it may be that in this case the condition of the consignment warranted that there should be re-weighment. After all a condition is a circumstance that is essential to the occurrence of something else. Transhipment of goods from one wagon to another at an intermediate station would be a strong circumstance which is essential to the occurrence of shortage and the petitioners would undoubtedly have been right in demanding re-weighment. But all that the rule enjoins on the railway administration is to 'consider' the question of re-weighment. It may even be that they may arbitrarily refuse to re-weigh the goods after consideration. It does not enjoin on them to re-weigh goods where there has been a change in the condition of the consignment as there has been in this case. I am afraid, this rule as framed does not carry the petitioners further than where they would have been but for this rule.
8. Under the Contract Act, there is a duty on a person claiming damages on account of breach of contract to mitigate the damage. In this case, it is an undisputed fact that out of 21 tons and 3 quintals the quantity offered by the Railway to the petitioners was about 20 tons. The loss was only about 1 ton and 3 quintals, the price of which would have been about Rs. 200. Instead of taking delivery of these 20 tons and mitigating the loss of that quantity, the petitioners chose not to take delivery of those goods and allowed the goods to go to Parel where they were used by Railway. It may be that if the petitioners had framed their suit so as to fall under Section 70 of the Indian Contract Act, they may have been able to recover the price of at least these 20 tons from the railway administration. I am, however, not concerned with this aspect of the matter as that is not the case of the petitioners.
9. Under these circumstances, I hold that the railway administration did not unlawfully or illegally refuse to re-weigh the goods before delivery. I, therefore, confirm the judgment of the lower Court and dismiss the petition with costs. Rule discharged.