Judgment:
A. Subbulakshmy, J.
1. Appeal is directed as against the order passed by the Railway Claims Tribunal, Madras Bench in O.A.No. 21 of 1989.
2. The applicants are M/s.Swamy Match Works, represented by its subrogee/power agent, the Oriental Insurance Company Limited, and the Oriental Insurance Company Limited are the appellants in this appeal. The appellants filed an application for compensation for the damage caused to the goods sent through the railways. The first applicant sent 1000 bundles of safety matches by rail from Salt Cotaurs on the Southern Railway to Farukkabad to be delivered to their dealer M/s.Naveen Stores at Kaimganj under railway receipt No. 389932. The consignment was made available at Farukkabad by the railways in a damaged condition. According to the applicants, apart from the suit consignment another consignment of 100 bundles which are not concerned of this case were loaded in that wagon. Assessment delivery report was issued by the destination station setting out the extent of the damage to the consignment. The applicants contend that the damage was caused due to the negligence of the railways and there was a net loss of Rs. 91,000. The second applicant, in terms of insurance policy, settled the claim of the first applicant by paying a sum of Rs. 1,09,238 being the proportionate insurance value and has been subrogated to the rights of the first applicant. The recovery agent of the second applicant lodged a claim with the second respondent which was repudiated. So, notice under Section 80, C.P.C. was issued by the applicants. The applicants contend that the fire occurred due to the lack of reasonable foresight on the part of the railway administration while dealing with the subject consignment. Not having obtained any redress from the respondents, the applicants had filed O.S.No. 2080 of 1989 in City Civil Court, Madras claiming compensation of Rs. 91,000 and then the suit was transferred to the Railway Claims Tribunal.
3. The respondents contend that the subject consignment was involved in an accidental fire at Kozipet yard on 6.11.1985 and that the fire was not due to any negligence or misconduct on the part of the respondents and so, the respondents are not liable for the claim.
4. The matter was tried by the Railway Claims Tribunal and the Claims Tribunal dismissed the application.
5. As against that order, the present appeal is filed.
6. Admittedly, the loss was caused to the consignment due to fire. But, the railways contend that it is beyond their control and the fire accident was not due to negligence of the railways.
7. Learned Counsel appearing for the respondents submitted that the damage was caused by fire which was an act of God and it was beyond the control of the railways and there was no negligence on the part of the railways.
8. Exs.B-1 and B-2 are the copies of the relevant forwarding note and railway invoice which show the booking of 1000 bundles of safety matches from Salt Cotaurs to Farukkabad on 20.10.1988 under railway invoice Ex.B-2. The assessment delivery report Ex.A-3 shows that out of 1100 bundles, 784 bundles had been turned into a heap the loss of which was assessed at 90% and that the damage was assessed in varying degrees from 40% to 80% in 316 bundles. The Tribunal has found that there is no evidence on the side of the respondents to prove that the damage caused to the goods was accidental and unforeseen and beyond the control of the respondents and so, the defence taken by the railways cannot be accepted. The Tribunal has further found that the damage to the goods have been caused by fire due to negligence and misconduct on the part of the railways.
9. Learned Counsel for the respondents submitted that on booking the said consignment with the railways, the title is vested with the consignee and the appellants are, therefore, not entitled to maintain the application for compensation.
10. The learned Counsel for the appellants submitted that in Ex.B-3 indemnity bond, which was executed in the presence of the Assistant Commercial Superintendent, Salt Cotaurs, it has been admitted that the first appellant is the bona fide owner of the goods. In Ex.B-3, it is stated that the first appellant undertakes the whole of the said liability equally with the consignee and for this purpose, he affixes his signature thereto. The learned Counsel for the appellants drew my attention to the wording in Ex.B-3 that the first appellant is the bona fide owner of the goods, vehemently submitted that the first appellant, being the owner of the goods, is entitled to maintain the suit and so, the suit is maintainable and the order passed by the Railway Claims Tribunal has to be set aside.
11. The learned Counsel for the railways submitted that once the consignment is passed from the hands of the consignor and it was loaded in the railway wagon, the consignor ceases to be the owner and the consignee becomes the owner of the goods and as the consignor, the first appellant is not the owner, and the first appellant is not entitled to maintain the suit.
12. But, in the indemnity bond Ex.B-3, it has been clearly stated that the first appellant is the bona fide owner of the goods and he undertakes the whole of the said liability equally with the consignee and for that purpose, he affixed his signature thereto. Ex.B-3 proves that the consignor continues to be the owner and undertakes the whole of the liability. The significant factor is that the railway receipt has not been produced at the destination station while taking delivery of the consignment and so, the delivery of consignment was taken on indemnity bond. The goods were also consigned to 'self'. It is stated in Ex.B-3 that consignee is 'self. Ex.A-1 invoice was raised in the name of Naveen Stores, Kaimganj. The Tribunal has found that Naveen Stores, Kaimganj is the consignee against whom the invoice Ex.A-1 relating to the suit consignment had been raised by the first applicant on 17.10.1985.
13. Of course, the invoice has been raised in the name of Naveen Stores. Since the railway receipt was not produced at the destination station, the goods were taken delivery on the indemnity bond Ex.B-3. Under Ex.B-3, the first appellant is said to be the owner of the goods and he has undertaken to pay freight charges and other charges that may subsequently be found in respect of the said transaction. The first appellant has also undertaken the whole of the liability equally with the consignee. Ex.B-4 is the indemnity note executed by Hari Krishna as the consignee in respect of the subject consignment. The name of the firm Naveen stores as stated in Ex.A-1 invoice is not specifically mentioned in Ex.B-4. Only on the indemnity bond executed by the first appellant, the goods were delivered at the destination station since the railway receipt was not produced. The Tribunal found that the endorsed consignee, M/s.Naveen Stores took delivery of the consignment at the destination on assessment of damage as shown in Ex.A-3. Naveen Stores is not shown as consignee in Ex.B-4. It is stated as Hari Krishna. There is no mention about Naveen Stores in that document. So, it is also clear from Ex.B-4 that the first appellant is the bona fide owner of the goods. The first appellant undertook the whole liability equally with the consignee. So, it is well evident that only the first appellant is the owner of the goods. The name of Naveen Stores does not find place in Exs.B-3 and B-4.
14. The Tribunal found that Ex.A-1 invoice contains specific condition printed on its bottom that the goods once sold cannot be taken back and that the responsibility of the first applicant ceases when the goods leave the first applicant's godown and in the circumstances, it should be considered that the first applicant consigned the goods by railways and had also endorsed the railway receipt in favour of Naveen Stores, after the loss of which, the first applicant had executed the indemnity bond Ex.B-3 in favour of the consignee and the title of the goods had passed from the first applicant to the consignee Naveen Stores with the result that the first petitioner and the second petitioner cannot maintain the application for compensation. The Tribunal has also relied upon a decision in Yacob Rowther Sons v. Union of India A.I.R 1965 Mad. 162, and dismissed the application.
15. Even though the consignor parted with the goods and loaded the goods in the railway wagon, in Ex.B-3 it has been clearly stated that the consignor the first appellant is the bona fide owner of the goods and he has also undertaken to pay the freight charges and other charges that may subsequently be found payable and has also undertaken the whole liability equally with the consignee. So, it is evident that only the consignor continued to be the owner of the goods till they were delivered in good condition to the consignee. Further, the consignee is also 'self.
16. In the decision reported in Yacob Rowther Sons v. Union of India A.I.R. 1965 Mad. 162, a Division Bench of this Court has held that when the consignor delivered the goods to railways for delivery to consignee, for the loss caused by non-delivery, the consignee to whom property in goods has passed alone can sue for loss. The learned Counsel for the appellants submitted that this decision is not applicable to the case on hand since in the indemnity bond, at the time of delivery, it has been admitted by the parties that the consignor the first appellant is the owner of the goods and he is liable to pay any freight charges that may accrue subsequently and when there is clear admission in the document Ex.B-3, it cannot be said that the first appellant is not the owner and he cannot maintain the suit.
17. In Union of India v. Indian & Overseas Trading Co. A.I.R. 1987 All. 1960, it has been held that the consignor has got a right to institute a suit against the railways for loss, damage or non-delivery to the consignee unless the consignee actually takes the delivery at the destination. In the facts and circumstances of that case, the Allahabad High Court held that the title in the goods sent by the disputed consignment vested in the seller, plaintiff and therefore, the suit fried by the plaintiff was maintainable. In Union of India v. W.P. Factories the Apex Court held that in a suit for damages to goods by fire on the railway platform, title to the goods not having passed to the consignee, the consignor can bring such suit. In the above decision, the Apex Court has observed that,
From the mere fact that a railway receipt is a document of title to goods covered by it, it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of goods and the consignor can never be the owner of the goods. The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee has to be decided on other evidence. Ordinarily, it is the consignor who can sue if there is damage to the consignment, because the contract of carriage is between the consignor and the railway administration. Where, however, the property in the goods carried has passed from the consignor to consignee, the later may be able to sue. Whether title to the goods has passed from the consignor to the consignee depends on the facts of each case.
In New India Assurance Co. Ltd. v. Union of India , the Apex Court has held that there is no dispute between the consignor and the consignee about the ownership of goods or the right to sue. In paragraph 8 of the above decision, the Apex Court relies on a decision of the Constitution Bench of the Supreme Court in Union of India v. West Punjab Factories Ltd. (1958) 65 A.C.J. 602 (S.C.), wherein it has been held that,
Ordinarily it is the consignor who can sue if there is damage to the consignment since the contract of carriage is between the consignor and the railway administration; the mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title of goods has passed to the consignee has to be decided on other evidence.
Relying on the decision of the Constitution Bench, the Supreme Court has held that,
In short, whether title to goods has passed from the consignor to the consignee is a question of fact in each case. The ordinary rule indicated was that the consignor who enters into contract of carriage with the railway administration can sue. It is difficult to appreciate how, in the present case, the High Court could have dismissed the consignor's suit particularly when the consignee had clearly intimated to the railway administration in writing that it did not claim any right or title in the goods.
In the light of the decision of the Apex Court, it can be safely concluded that it is the consignor who can sue if there is damage to the consignment since the contract of carriage is between the consignor and the railway administration. The consignor had sent the goods through the railways. Even in the indemnity bond, the consignor has stated that only the consignor is the owner of the consignment and he has also undertaken to pay the freight charges that had arisen and the consignor has also undertaken the whole liability. So, it is evident from Ex.B-3 that title to the goods did not pass to the consignee. Even though the consignor had sent the goods through the railways and has parted with the goods, the facts and circumstances of the case prove that title to the goods had not passed from the consignor to the consignee. If as soon as the goods were sent by the railway the title passes to the consignee, there would not have been any necessity on the part of the consignor to write in the indemnity bond that the consignor is the bona fide owner of the property and he has undertaken the liability. The clear wording in Ex.B-3 and B-4 clearly prove that the title of the goods had not passed to the consignee and the consigner alone was the owner of the consignment. Only the consignor sent the goods through the railways as evidenced by the forwarding note Ex.B-1. So, it is well evident that the first appellant, consignor had entered into contract of carriage with the railway administration as evidenced by Ex.B-1. So, the first appellant is entitled to maintain the suit.
18. The Tribunal has held that the railway had failed to use reasonable foresight and acted with negligence and misconduct which resulted in damage to the consignment. On appreciation of evidence, the Tribunal, after deducting the salvage value, had fixed the compensation at Rs. 79,740 payable by the railways for the loss caused to the consignment.
19. The appellants are entitled to maintain the application and they are entitled to this compensation of Rs. 79,740.
20. In the result, the appeal is allowed. The other passed by the Railway Claims Tribunal is set aside. The appellants are entitled to compensation of Rs. 79,740 from the railways. No costs.