1. The defendant railway is the petitioner in this Civil Revision directed against the judgment of the S.C.C Judge, Berhampur, in S.C.C Suit No. 120 of 1957 whereby the learned Judge decreed the plaintiffs suit for Rs. 373/- for alleged loss of some consignment of medicines stated to have been entrusted to the defendant railway at Howrah to be delivered to the plaintiff consignee at Berhampur, (Ganjam) on the South Eastern Railway.

2. The facts, shortly, are these: On August 20, 1956, the said consignment of medicine was booked at Howrah Station. Four days thereafter on August 24, 1956, delivery of the case containing the consignment was made at Berhampur. The weight of the goods as per railway receipt was stated to be 17 seers but the weight found at the time of delivery was 9½ seers, that is to say, 7½ seers short. Ext. 4, the shortage certificate, reads as follows:

“Case arrived in sound and intact condition and delivered under D/R. On demand reweighment found 9 ½ seers against R/R weight 17 seers. Hence short weight only certified”.

Thereafter, the plaintiff took the case home and opened it in the presence of P.Ws 2 and 3. The basis of the plaintiffs claim in the suit is alleged shortage of medicine worth Rs. 306/8/-. The trial Court, on evidence, decreed the suit for the amount claimed including profit and other incidental charges as aforesaid. Hence, this Civil Revision.

3. The only defence, which the defendant railway petitioner in this revision pressed before this Court, is on the stand taken by the Railway that an admission of weight in the railway receipt is not an admission of actual weight and the Railway is not thereby bound. The mention of weight in the R/R is stated to be based on the consignor's statement. Rule 15 of the Tariff Rules which is described as General Rules for Acceptance, Carriage and Delivery of Goods (Goods Tariff No. 29 in force from 1st June 1954 — Sanjiwa Row's “The Indian Railways Act”, 3rd Edition, page 1183);, reads as follows:

“15. Right to correct charges under receipt notes— The weight, description and classification of goods and quotation of rates as given in the Railway receipt and forwarding note are merely inserted for the purpose of estimating the railway charges and the railway reserves the right of remeasurement, reweighment, reclassification and recalculation of rates, terminals and other charges and correction of any other errors at the place of destination and of collecting any amount that may have been omitted or undercharged. No admission is conveyed by a Railway receipt that the weight as shown therein has been received or that the description of goods as furnished by the consignor is correct”.

Mr. B.K Pal, appearing for the Railway, relied on Rule 15 in support of his contention that mention, in the Railway receipt that the case weighed 17 seers is not conclusive as its actual weight and the alleged consequent liability of the railway therefor.

4. On the interpretation of Rule 15 of Goods Tariff Rules quoted above, Mr. Pal relied on the position in law, as interpreted by the Courts, as follows:

Where the weight of a consignment shown in a railway receipt is the mean weight and not actual weight, it is merely for the purpose of calculating the railway charges and the administration reserves the right for remeasurements both under the receipt and the Goods Tariff Rules; it is not an admission by the Company that the weight accepted prima facie for the purpose of charging freight is the actual weight; Rule 15 clearly specifies that the Railway receipt contains no admission of weight.

5. In a Madras case, relied on behalf of the railway, the High Court, while dismissing a petition in revision made by the claimant against the railway, took into consideration a further circumstance that under Rule 15, Goods Tariff General Rules, the railway administration does not admit that the weight as shown in the railway receipt has been received or the description of the goods as furnished by the consignor is correct. In that particular case the learned District Munsif came to the conclusion that at the time the goods were accepted for transit at Madura there was no evidence to show that they were weighed or that the weight of 15 maunds and 20 seers was the correct weight. On these facts the High Court came to the conclusion that no inference was called for in revision and the Civil revision was accordingly dismissed (Secretary of State v. Mansey Lakhamsey, AIR 1930 Bom 262; Madras Handloom Weavers Provincial Co-operative Society Ltd., Madras v. Dominion of India, AIR 1953 Mad 514.) Thus, on the authorities cited above, there can be no dispute as to the implication of Rule 15 of Goods Tariff General Rules quoted above.

6. Mr. M.K.C Rao, appearing for the plaintiff opposite party, however, sought to give a different interpretation, contending that Rule 15 was to be interpreted as a caution for the railway in that the railway has a right to reassess and charge the excess if the actual weight is more than the R/R weight. The argument however rather supports the railway's stand, in that if the weight is found to be less there is provision for refund by the railway to the consignee as provided in Section 77 of the Railways Act and the appropriate Tariff Rules which entitle the consignee to refund if over-charged provided the claim is made within six months.

7. In the present case, the admitted facts, as appear from the records, are that the difference between the Railway receipt weight and the actual weight is 7½ seers as aforesaid; that the case when, delivered was in sound and intact condition; that verification as to the contents of the case was done at the plaintiffs house in the presence of P.Ws 2 and 3. On merits, the only question for consideration is, whether the medicines, alleged to have contained in the case, were actually booked at Howrah Station. Mr. Pal appearing for the Railway relied on the position that there is no evidence of the alleged actual booking of the said medicines at Howrah. In fact, it appears that nobody from the side of the consignor nor anybody from the side of Messrs May and Baker Ltd., from whom the goods were purchased at Calcutta, was examined.

8. Mr. Rao, however, contended that there was evidence of booking of the goods at Howrah; in the plaint it was stated that the goods were booked as per invoice Ext. 5; that the notice of demand Ext. 7 under Section 77 of the Railways Act and notice under Section 80 of the CPC, according to him, show that the plaintiff made the claim on the railway on the basis of the invoice which stated the particulars of the different items of medicines alleged to have been packed in the case and booked at Howrah; further there was an affidavit by the consignee at Berhampur Ext. 6 that the goods referred to therein were actually booked at Howrah.

9. It is noticed in this case that R/R is not on record. This Court, therefore, is to proceed on the evidence, as available to it, adduced before the trial Court. In my opinion none of these pieces of facts constitute any legal proof of actual booking of the medicines at Howrah. A statement in the plaint is a matter of pleading and not proof nor are the statements in the notices of demand any proof of the claim on which demand is made. With regard to Ext. 6, the affidavit made by the consignee, it can be readily said that this affidavit was made at Berhampur where the goods were delivered and not by any body at the other end at Howrah where the goods were booked. Accordingly, Ext. 6 does not support the plaintiff's contention.

10. Strong reliance was made on the invoice dated August 21, 1956 (Ext. 5) purporting to show that the items of medicines which were bought from Messrs May and Baker Ltd. were actually booked at Howrah station. I do not see how this invoice proves actual booking of the goods at Howrah. The invoice only shows that the medicines referred to in the invoice were bought from May and Baker Ltd. in Calcutta and not they were actually booked at Howrah.

11. Furthermore, the plaintiff as P.W 1 does not say in his evidence that the goods were booked as per invoice Ext. 5. Besides, the invoice Ext. 5 is dated August 21, 1956, whereas the goods appear to have been booked at Howrah a day earlier, that is to say, on August 20, 1956; so the invoice was not even in existence at the time the goods were booked at Howrah. It thus could not have been said, that the goods were booked as per the invoice, which is of later date than the date of booking. Thus the admitted dates of booking and the invoice Ext. 5 speak for themselves.

12. Mr. Rao, further took the stand that there is no explanation forthcoming from the railway, as to why there was shortage in weight of the case, consigned at Howrah. The onus being on the plaintiff 1 and by reason of the fact that the contents of the case were within the special knowledge of the plaintiff or the consignor from Howrah, it was for the plaintiffs to adduce evidence as to the actual booking of the goods at Howrah.

13. It appears that the learned Judge proceeded on certain wrong premises as to the legal position on the question of liability of the railway in respect of the goods booked. The learned Judge was wrong in his conclusion that even if a parcel was in sound and intact condition the defendant (the railway) is liable for the loss when the shortage in weight is admitted. That apart, although the Railway took the defence in the written statement that the difference in weight will not entitle the plaintiff to claim any damages, the learned Judge did not consider this aspect of the case with reference to Rule 15 of the Goods Tariff General Rules. In fact, the learned Judge does not appear to have considered the provisions of Rule 15 at all in his judgment.

14. In these circumstances the judgment of the learned trial Court does not appear to be according to law. The plaintiff's suit is therefore dismissed. This revision is allowed.

15. But in the circumstances of the case, there will be no order as to costs.

EE/L.B

16. Revision allowed.