Judgment:
A. Subbulakshmy, J.
1. This civil miscellaneous appeal is directed against the order passed by the Railway Claims Tribunal in T.A.I. No. 162/90 dated 13.11.1991. The petitioners in the 'claim petition are the appellants herein.
2. The first petitioner booked four bales of handldom cotton goods as per Invoice Ex. Al for carriage to New Delhi to be delivered to the endorsed consignee M/s. Paushak. The goods were insured with the second petitioner-Insurance Company. When the consignment reached the destination, out of four bales two bales alone were delivered to the consignee and the other two bales were not delivered. The Chief Parcel Supervisor, Northern Railway, New Delhi issued Parcel Delivery Certificate Ex. A2 to that effect. The first petitioner sent a letter to the Chief Parcel Supervisor claiming compensation for the loss sustained by them under Ex. A3. But the Railway Authorities did not send any reply and did not settle the claim of the petitioner. So the first petitioner made a claim with the second petitioner, Insurance Company and the Insurance Company has settled the claim by paying a sum of Rs. 14,804/- being the value of the consignment non-delivered and thus became subrogated to the rights of the first petitioner to recover the said amount from the respondents. So the respondents are liable to pay the said amount to the second petitioner. The petitioners have sent a notice dated 26.4.1988 calling upon the respondents to pay the said sum of Rs. 14,803.96 towards compensation for the loss sustained by them due to short delivery of the consignment. The respondents did not reply for the said notice. So, the petitioners sent another notice under Section 80, C.P.C. to the respondents. The Chief Claims Officer of the first respondent Railway sent a reply under Ex. All stating that enquiries were being made and the result of the same would be intimated to them. Since no information has been received from them, the petitioners have filed a civil suit in the City Civil Court, Madras. The petitioners would contend that the non-delivery of the consignments by the Railway Administration was solely due to the gross negligence and misconduct of the respondents and the respondents are liable to settle the claim.
3. The respondents/Railways filed a written statement contending that the right and title to the suit consignment are not vested with the petitioners.
4. The suit was then transferred to the Railway Claims Tribunal. The Railway Claims Tribunal has taken the same on the file in T.A.I. No. 162/1990 and framed issues and after enquiry, dismissed the claim petition. Aggrieved by the said order, the petitioners have preferred this appeal.
5. Learned Counsel for the appellants contended that the goods were booked with the Railways to be delivered to the endorsed consignee M/s. Paushak and there was a short delivery of goods and two bales alone were delivered and other two bales were not delivered and only due to gross negligence and misconduct of the Railways, the non-delivery of consignment had taken place and the railways are liable to pay the compensation.
6. Learned Counsel for the respondents/Railways contended that when the goods reached the destination, they were taken delivery by the consignee and the title to the goods passed to the consignee and the consignor is no longer the owner of the goods and the consignor cannot maintain the suit and as such the suit filed by the petitioners/claimants is not maintainable.
7. Learned Counsel for the respondents further relies upon Exs. B1 and B2 and would contend that the delivery has been taken by the consignee and so the consignor is not the owner of the goods. Ex. B1 relates to the delivery of two bales. Ex. A2, letter of delivery book reveals that out of four bales two bales were received. Of course, Exs. Bl and A2 reveal that the consignee has received only two bales. The other two bales were not delivered. Ex. Al invoice reveals that four bales of goods were booked by the claimants. The Tribunal has relied upon the ruling of the Madras High Court and had held that only the consignee can maintain the suit and not the consignor. The Tribunal has also relied upon the conditions stated in Ex. Al, which states that the responsibility of the respondents ceases as soon as the goods left the godown and they are not responsible for any loss or damage in transit and arrived at a conclusion that the title passed to the consignee and the consignee alone is the owner of the goods and the consignor/claimant is not me owner of the goods and in accordance with the terms and conditions of the sale, the consignor had transferred the title to the consignee and accordingly found that the claim petition is not maintainable.
8. Learned Counsel for the appellants submits that there was agreement between the claimants and the respondents in respect of carriage and the agreement of sale does not arise in this case as the consignor has delivered the goods to the respondents for a safe carriage at the destination to the consignee and as the goods were not delivered to the consignee, the consignee does not become the owner of the goods and, therefore, the consignor can maintain the suit.
9. Learned Counsel for the respondents relied upon the conditions in Ex. Al that the responsibility of the petitioners ceases since the goods left their godown and they are not responsible for any loss or damage in transit and he further relies upon Exs. Al and A2 and contended that since delivery has been taken by the consignee, the consignor cannot maintain the suit.
10. Learned Counsel for the appellants relies upon the following
decisions S.K.M. Yacob Rowther Sons Mettupalayam by its Managing Partner J.K. Abdul Rahim v. Union of India Representing the Southern Railway and Anr. Traders Syndicate v. Union of India. Union of India and Anr. v. Indian and Overseas Trading Company Kanpur and Anr. The Union of India v. The West Punjab Factories Ltd.
11. In the decision reported in cited supra, the Division Bench of Madras High Court has held that 'Where a consignment is delivered to the Railway, the consignor, except where he is acting as the agent of another, can be regarded as the party to the contract of carriage, prima facie, he can also be treated as the bailor; where he is acting as an agent, his principal can be regarded as the bailor so far as the Railway is concerned.
But where under a contract of sale, goods are delivered by the seller to the Railway for carriage, in order to effect delivery, the Railway is ordinarily treated as the agent of the buyer to receive the goods from the seller.
Therefore, where property in the goods had passed to the buyer, on delivery to the Railway, the latter should have to be regarded as bailee to the owner of the goods namely, the consignee. And only the consignee can sue for loss caused by the non-delivery of the goods after the goods have been delivered to the Railway for delivery to him.
12. In the decision reported in (cited supra) the Calcutta High Court has held that the plaintiff was a party to both the contracts of carriage as evidenced by the two Railway Receipts and it was the plaintiff who was entitled to sue the defendant for compensation for committing breaches of these contracts by non-delivery of the goods. In the decision reported in , the Calcutta High Court has held as follows:
Where the action is founded on contract, the right to maintain an action on the contract belongs to the person who entered into the contract. Ordinarily that person is the consignor.
13. In Union of India v. Indian and Overseas Trading Co. (Supra), it has been held as follows:
The consignor has got a right to institute a suit against the Railways for loss, damage or non-delivery of goods in transit entrusted to it for delivery to the consignee unless the consignee actually takes the delivery at the destination. This rule, however, is subject to the well-established exception contained in Sections 23 and 39 of the Sale of Goods Act. To put in a different way the terms of the contract of sale have to be considered and, whether they indicate that the moment the seller entrusts the goods to the carrier the ownership in the goods vested in the buyer and the carrier is presumed not only to be the buyer's agent but to have assented to the appropriation to the contract of goods so delivered.
14. In the decision reported in , it has been held that the question whether the plaintiff was the owner of the goods or not, was not relevant for the purpose of that suit and on the ground that the endorsement in Railway Receipt in favour of the consignee, it cannot be held that it is the consignee who has the right to maintain an action. In the decision reported in AIR 1964 page 290, it has been held that mere endorsement and delivery of the Railway Receipt does not transfer the contract contained in or evidenced by the Railway Receipt to the transferee and an endorsee of a Railway Receipt cannot sue the Railway on the contract contained in the Railway Receipt merely because the property or an interest in the goods has been transferred to firm and in such case, the endorsee was the owner of the goods and he can sue the Railway in his own name only for conversion or negligence.
15. The Supreme Court in the decision reported in , has laid down that:
Ordinarily, it is the consignor who can sue if there is damage to the assignment, 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 latter 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.
16. In the case on hand, four bales were sent through Railway by the consignor to the consignee and only two bales were delivered to the consignee and there was non-delivery of two bales. Only the claimant sent the goods through the Railway. In the Supreme Court decision cited supra, the Supreme Court has observed that it is the consignor who can sue if there is any damage to the consignment. In the present case, there was short delivery of two bales. There was contract of carriage between the claimants and the Railway Administration, even though the conditions in their bill Ex. Al states that 'Our responsibility ceases as soon as the goods leave our godown and we are not responsible for any loss or damage in transit'. Those conditions were printed at the back of the bill and by simply printing those conditions, the claimants cannot say that they are absolved of the liability and their duty is over since the goods left the godown. If the consignee has taken delivery of all the goods left from the claimant's godown, then, of course, it can be contended that after the goods left the godown, the consignor /claimants are not liable. The case on hand is not one like that. In the instant case, the consignor has despatched the goods through the carriage/Railway to reach the consignee. The consignee has not taken delivery of two bales and there was a short delivery of two bales. Till the goods were delivered to the consignee, in view of the contract of the carriage between the consignor and the Railway Administration, the consignor can maintain the suit if any damage has been caused to the goods during the transit and if the consignments were taken delivery of by the consignee in damaged conditions, for the damage caused to the goods or for the loss of goods, the consignee can claim compensation from the Railways and only the consignee can maintain the suit. In the instant case, there was non-delivery of goods of two bales. Delivery of other two bales alone does not constitute that the consignee has taken delivery of all the goods sent by the consignor. Consignee having taken delivery of two bales and the other two bales not being delivered to the consignee, the consignee cannot be said to be the owner of those goods. For the loss of two bales which occurred during transit, in the light of the contract of carriage between the consignor and the Railway, only the Railway is responsible. As the two bales have not reached the destination, I feel that the consignor can maintain the suit and as such the suit is maintainable. Since the two bales were not delivered to the consignee, the consignee does not become the owner of the goods and the consignor alone can maintain the suit. The Apex-Court in the decision reported in , has held that whether title to goods has passed from the consignor to the consignee depends on the facts of each case. In the instant case, admittedly, two bales were not delivered to the consignee. The unloading of the goods and the handing over of the goods to the consignee is the duty of the Railway and there can be non-delivery of the goods by the Railway till the Railway has unloaded the goods. The consignee cannot remove those goods from the wagon since those two bales were not available for delivery. So, only two consignments were unloaded by the Railway. The other two bales must be in the custody of the Railway and non-delivery could be said to have taken place in respect of two bales. Even though under Railway Receipt, the consignee has taken delivery of two bales, since the other two bales were not delivered by the Railway, they will be deemed to be under the control and custody of the Railway. So, it cannot be stated that the consignee has taken delivery of two bales and the title passed to the consignee. So, the contention raised by the Railways/respondents that delivery had been made to the consignee and the consignee alone can maintain the suit is not acceptable in the facts and circumstances of the case. There was short delivery of two bales and so the title has not passed from the consignor to consignee and hence, the consignor can maintain the suit. The Railway has failed to use reasonable foresight and acted with negligence and carelessness which resulted in shortage of two bales. Due to Railway's negligence and carelessness, the shortage had occurred during the transit and hence, the Railway is liable to pay compensation for the loss of two bales.
17. Admittedly, two bales were not delivered. The claimants have claimed its value of Rs. 14,804.90. With respect to the non-delivery of the goods and its value, there is no dispute at all. No arguments were advanced in respect of the non-delivery of the goods and also its value. The only issue in this case is with regard to the maintainability of the suit. In view of my finding as discussed above, the consignor can maintain the suit, I hold that there will be a decree for Rs. 14,804/- being the value of two bales in favour of the petitioners and the respondents/ Railways are directed to pay this amount to the petitioners within three months from the date of receipt of this order, failing which, the petitioners are entitled to claim interest at the rate of 6% per annum.
18. In the result, the civil miscellaneous appeal is allowed setting aside the order of the Tribunal in T.A.I. No. 162 of 1990. No costs.