Bhai Mehar Singh Kishan Singh, Fruit Merchants, Subzi Mandi, Delhi-7 Vs. Union of India and ors. - Court Judgment

Excerpt:
the case debated whether the consignee of goods could sue for the compensation on the damage of goods entrusted to the railway in transit - generally the owner of the goods was the proper person to sue for the damages - ordinarily the consignor could sue because the contract of the carriage is between the consignor and the carrier- hence it was held that if the person suing was neither the consignor nor the owner of the goods but was a consignee, then he would have to establish his claim to the compensation - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - this showed clearly that the plaintiff was a commission agent. the learned judge rejected this evidence on the ground that this was not a case pleaded in the plaint and further that the plaintiff had failed to lead evidence that he in fact advanced money to the consignor. he held that a commission agent is not by nature an employee or agent and it is consistent with its position to deal with the goods as principal to principal and acquire the property in the goods as well as realise the commission. 77 (4) speaking of owner's liability to demurrage and wharfage, and one might as well remember that the liability of the railways under the contract of carriage has been for over a century and a quarter governed by statutes beginning with act 18 of 1854 and a host of rules and forms prevalent at the relevant time. in this case, the consignor owner does not challenge the title of the plaintiff and if the railways made payment to the plaintiff, they will have completely satisfied the claim without being liable to the owner consignor.order1. this revision is against the order of the addl. judge, small cause court, delhi, of january 29, 1975. the petitioner had filed a suit against the union of india, defendant no. 1, on the allegations that 17 consignments of mosammies were dispatched to him by, m/s. angoor mohammed yunus & sons, defendant no. 2, from madras by railway. the consignments upon delivery were found short and damaged too. he filed a claim for rs. 671.00, but the railways conceded liability only to the extent of rs. 128/-. he refused to accept such a smaller amount and in the suit, prayed for a decree of the aforesaid amount of rs. 671.00. issues were framed and evidence recorded. the learned judge dismissed the suit by deciding issue no. 2 that the plaintiff being the consignee had no locus standi to sue. he relied upon a judgment of the supreme court reported in union of india v. west punjab factories, : [1966]1scr580 .2. kishan singh, p. w. 2, had deposed that his business was to advance the price to the consignor, receive and sell the goods and after deducting the commission and the advance payment made by him, to send the balance to the consignor. this showed clearly that the plaintiff was a commission agent. the learned judge rejected this evidence on the ground that this was not a case pleaded in the plaint and further that the plaintiff had failed to lead evidence that he in fact advanced money to the consignor. he, thereforee, was unable to hold that the plaintiff acquired any interest in the goods. though the owner consignor of the goods had also been imp leaded and had not repudiated the claim of the plaintiff, the learned judge felt that no decree could be passed unless defendant no. 2 was transposed as plaintiff no. 2, and no transposition was possible without a notice under s. 80, c. p. c. the notice already served by the plaintiff could not fulfill the requirement of the law, because there would then be lack of total identity of the parties.3. having considered the matter, i am of the view that the learned judge fell into error both in respect of law and fact. in a decision of this court dated nov. 14, 1975, and reported in union of india v. b. prahlad and co., : air1976delhi236 , avadh behari, j., had, after careful consideration of the aforesaid supreme court decision and several other cases, laid down that a consignee can if he is a commission agent, institute a suit for compensation against the railways if he is able to show that the goods represented by the railway receipt had been transferred to him or sufficient interest therein had been created in his favor. that is, if i may say so, because, to borrow viscount simon, l, c., in luxor (eastbourne) ltd. v. cooper, (1941) ac 108 contracts with commission agents do not follow a single pattern and the primary necessity in each instance is to ascertain with precision what are the express terms of the particular contract under discussion. there is, however, a contrary decision of this court delivered by anand, j., on april 8, 1976, and reported in union of india v. jashan mal & co., air 11976 del 335. the learned judge appears to have taken a view that a commission agent had no right or property in the goods which may justify an action for damages against the railways, because what he has is a bare right to receive the goods and sell them on behalf of the principal. misra. j., in union of india v. gopal dass ramesh chand. 2nd (1976) 2 del 508, noticed both the decisions and observed that there is no real conflict between the two decisions as the question in each case was answered on the facts and circumstances disclosed. he held that a commission agent is not by nature an employee or agent and it is consistent with its position to deal with the goods as principal to principal and acquire the property in the goods as well as realise the commission.4. after reflection i find it easy to state that in case of loss or damage to the goods, the person who suffers the loss, will have a cause of action to sue. thereforee, the general rule is that the owner of the goods is the proper person to, sue for damages: vide halsbury's laws of england halsham's edition 4th. vol. 5. para 452. this proposition is supported by s. 74 of the indian railways act, 1890, relating to owner's risk rate, ss. 76 and 76e thereof placing the burden on the owner to prove the damage in case of delay or detention or in case of carriage over foreign railways and s. 77 (4) speaking of owner's liability to demurrage and wharfage, and one might as well remember that the liability of the railways under the contract of carriage has been for over a century and a quarter governed by statutes beginning with act 18 of 1854 and a host of rules and forms prevalent at the relevant time. broadly such liability began as that of an insurer then it was equated with a bailee, and under the law as it now stands, it is akin to a common carrier with an exception that it is that of a bailee for seven days after the termination of transit. it is a matter of evidence as to who is the owner of the goods when they are in transit.in union of india v. west punjab factories : [1966]1scr580 (supra), it was contended before the supreme court the consignee and not the consignor had the right to sue. the court held that ordinarily it is the consignor who can sue because the contract of carriage is between the consignor and the carrier. 1, thereforee, think that where the person suing is neither consignor nor the owner of the goods, and say is a consignee, he will in order to establish his claim to compensation, have to show that he had interest in the goods in virtue of purchase or pledge or otherwise or some special agreement or that the consignor had dispatched the goods as his agent. the right to receive the goods must be coupled with an interest so as to entitle the consignee to claim compensation. in the case of sale, it would be determined on the principles laid down in the sale of goods act. whether the property in the goods had passed to the consignee during their transit. as stated in the commissioners for the port of calcutta v. general trading corporation ltd., : air1964cal290 the consignee is presumed to be the owner of the goods though such a presumption is reputtable, because he holds the railway receipt, which is a document of title under the sale of goods act.it, thereforee, appears that beyond saying that the person who is during transit the, owner of the goods is entitled to sue for loss or damage to the goods in transit, it is not possible to lay down as a rule that the consignor or the consignee can or cannot sue, because the right of the plaintiff to sue for compensation will ultimately depend upon the pleadings and evidence of the parties. the concern of the railway arises because they have to find the person to whom they should pay compensation in the event of goods being lost or damaged so as to completely discharge the liablility and not to be liable twice over. in this case, the consignor owner does not challenge the title of the plaintiff and if the railways made payment to the plaintiff, they will have completely satisfied the claim without being liable to the owner consignor. there is no need for any transposition of the parties. as a matter of fact, until they filed the written statement, the railways did not dispute the consignee's right to damages. in his replication, the plaintiff had stated the he was a consignee for consideration and being a commission agent had interest in the goods. he explained this in his statement, there is no variance between pleading and proof. he had a right to sue.5. i, thereforee, accept this revision petition, set aside the impugned judgment, decide issue no, 2, in favor of the plaintiff-petitioner, and direct the learned trial judge to proceed to decide the remaining issues in the suit, the costs of this revision shall be costs in the suit.6. revision allowed.

Judgment:
ORDER

1. This revision is against the order of the Addl. Judge, Small Cause Court, Delhi, of January 29, 1975. The petitioner had filed a suit against the Union of India, defendant No. 1, on the allegations that 17 consignments of Mosammies were dispatched to him by, M/s. Angoor Mohammed Yunus & Sons, defendant No. 2, from Madras by Railway. The consignments upon delivery were found short and damaged too. He filed a claim for Rs. 671.00, but the Railways conceded liability only to the extent of Rs. 128/-. He refused to accept such a smaller amount and in the suit, prayed for a decree of the aforesaid amount of Rs. 671.00. Issues were framed and evidence recorded. The learned Judge dismissed the suit by deciding issue No. 2 that the plaintiff being the consignee had no locus standi to sue. He relied upon a judgment of the Supreme Court reported in Union of India v. West Punjab Factories, : [1966]1SCR580 .

2. Kishan Singh, P. W. 2, had deposed that his business was to advance the price to the consignor, receive and sell the goods and after deducting the commission and the advance payment made by him, to send the balance to the consignor. This showed clearly that the plaintiff was a commission agent. The learned Judge rejected this evidence on the ground that this was not a case pleaded in the plaint and further that the plaintiff had failed to lead evidence that he in fact advanced money to the consignor. He, thereforee, was unable to hold that the plaintiff acquired any interest in the goods. Though the owner consignor of the goods had also been imp leaded and had not repudiated the claim of the plaintiff, the learned Judge felt that no decree could be passed unless defendant No. 2 was transposed as plaintiff No. 2, and no transposition was possible without a notice under S. 80, C. P. C. The notice already served by the plaintiff could not fulfill the requirement of the law, because there would then be lack of total identity of the parties.

3. Having considered the matter, I am of the view that the learned Judge fell into error both in respect of law and fact. In a decision of this Court dated Nov. 14, 1975, and reported in Union of India v. B. Prahlad and Co., : AIR1976Delhi236 , Avadh Behari, J., had, after careful consideration of the aforesaid Supreme Court decision and several other cases, laid down that a consignee can if he is a commission agent, institute a suit for compensation against the Railways if he is able to show that the goods represented by the Railway receipt had been transferred to him or sufficient interest therein had been created in his favor. That is, if I may say so, because, to borrow Viscount Simon, L, C., in Luxor (Eastbourne) Ltd. v. Cooper, (1941) Ac 108 contracts with commission agents do not follow a single pattern and the primary necessity in each instance is to ascertain with precision what are the express terms of the particular contract under discussion. There is, however, a contrary decision of this court delivered by Anand, J., on April 8, 1976, and reported in Union of India v. Jashan Mal & Co., Air 11976 Del 335. The learned judge appears to have taken a view that a commission agent had no right or property in the goods which may justify an action for damages against the Railways, because what he has is a bare right to receive the goods and sell them on behalf of the principal. Misra. J., in Union of India v. Gopal Dass Ramesh Chand. 2nd (1976) 2 Del 508, noticed both the decisions and observed that there is no real conflict between the two decisions as the question in each case was answered on the facts and circumstances disclosed. He held that a commission agent is not by nature an employee or agent and it is consistent with its position to deal with the goods as principal to principal and acquire the property in the goods as well as realise the commission.

4. After reflection I find it easy to state that in case of loss or damage to the goods, the person who suffers the loss, will have a cause of action to sue. thereforee, the general rule is that the owner of the goods is the proper person to, sue for damages: vide Halsbury's Laws of England Halsham's edition 4th. Vol. 5. para 452. This proposition is supported by S. 74 of the Indian Railways Act, 1890, relating to owner's risk rate, Ss. 76 and 76E thereof placing the burden on the owner to prove the damage in case of delay or detention or in case of carriage over foreign railways and S. 77 (4) speaking of owner's liability to demurrage and wharfage, and one might as well remember that the liability of the Railways under the contract of carriage has been for over a century and a quarter governed by statutes beginning with Act 18 of 1854 and a host of rules and forms prevalent at the relevant time. Broadly such liability began as that of an insurer then it was equated with a bailee, and under the law as it now stands, it is akin to a common carrier with an exception that it is that of a bailee for seven days after the termination of transit. It is a matter of evidence as to who is the owner of the goods when they are in transit.

In Union of India v. West Punjab Factories : [1966]1SCR580 (supra), it was contended before the Supreme Court the consignee and not the consignor had the right to sue. The court held that ordinarily it is the consignor who can sue because the contract of carriage is between the consignor and the carrier. 1, thereforee, think that where the person suing is neither consignor nor the owner of the goods, and say is a consignee, he will in order to establish his claim to compensation, have to show that he had interest in the goods in virtue of purchase or pledge or otherwise or some special agreement or that the consignor had dispatched the goods as his agent. The right to receive the goods must be coupled with an interest so as to entitle the consignee to claim compensation. In the case of sale, it would be determined on the principles laid down in the Sale of Goods Act. whether the property in the goods had passed to the consignee during their transit. As stated in the Commissioners for the Port of Calcutta v. General Trading Corporation Ltd., : AIR1964Cal290 the consignee is presumed to be the owner of the goods though such a presumption is reputtable, because he holds the railway receipt, which is a document of title under the Sale of Goods Act.

It, thereforee, appears that beyond saying that the person who is during transit the, owner of the goods is entitled to sue for loss or damage to the goods in transit, It is not possible to lay down as a rule that the consignor or the consignee can or cannot sue, because the right of the plaintiff to sue for compensation will ultimately depend upon the pleadings and evidence of the parties. The concern of the Railway arises because they have to find the person to whom they should pay compensation in the event of goods being lost or damaged so as to completely discharge the liablility and not to be liable twice over. In this case, the consignor owner does not challenge the title of the Plaintiff and if the Railways made payment to the Plaintiff, they will have completely satisfied the claim without being liable to the owner consignor. There is no need for any transposition of the parties. As a matter of fact, until they filed the written statement, the Railways did not dispute the consignee's right to damages. In his replication, the plaintiff had stated the he was a consignee for consideration and being a commission agent had interest in the goods. He explained this in his statement, There is no variance between pleading and proof. He had a right to sue.

5. I, thereforee, accept this revision petition, set aside the impugned judgment, decide issue No, 2, in favor of the plaintiff-petitioner, and direct the learned trial judge to proceed to decide the remaining issues in the suit, The costs of this revision shall be costs in the suit.

6. Revision allowed.