P L D 1957 Dacca 302 (PLP)

IBRAHIM, J.‑

This suit has been brought for recovery of damage from the defendants who are common carriers (Steamer Companies). The facts are these. On the 14th October 1943, the plaintiff dispatched 180 bags of goods from Beldanga on the B. & A. Railway for delivery at Narayanganj. In the Railway Receipt, Exh. G the bags were described as "said to contain gram (169 bags) and Khusari (11 bags), each containing 2 maunds 11 seers, in all 407 maunds 20 seers. The goods were to be carried by Railway upto Khulna and thence by Steamer to Narayanganj. The consignment arrived at Khulna on the 19th October 1943, by 771 Up in Wagon No. 32336 but without the invoice. The consignment was, therefore, dispatched from Khulna to Narayanganj under Exh. A. Free Chalan No. 9/e, dated 21st October 1943, and transshipped into dependants' barge No.

394. When accepting the consignment under the free chalan, the defendants' officers made the following note in the ,Remark Register: "180 bags old, single, contents unknown, without Mark BED to N. J. G. given by Railway, of which 10 bags torn and slack, resewing by Railway Wg. 2‑10, 2‑9, 2‑10, 2‑8, 2‑10, 2‑0, 2‑0, 2‑0, 2‑0, 2‑0, the Railway refused to weigh the rest bags. Sent at Railway risk in respect to mark, weight and exchange. B. & A. Railway entirely responsible for association of packages with original invoice at destination." When the consignment arrived at Narayanganj, it was found that the bags contained Mashkalai and the plaintiff refused to take delivery. He complained that he had sent gram Khesari and that his goods were replaced by Masokalai. This was on the 4th November 1943. On the same day or the next the Ghat Supervisor of the defendant at Narayanganj sent a wire to the Railway Station Master at Beldanga stating that 180 bags received under Khulna Free Chalan 9/c of 21st October 1943, contained Kalai and not gram and Khesari and that the consignee refused to take delivery. He further stated that the Free Chalan referred to Wagon No. 32336, which would connect the consignment with invoice No. 3/790325 of 14th October 1943. The telegram was con firmed by a letter on the 5th November 1943, copies of which were sent to the defendants Joint Agent at Khulna and the Railway Station Master and Beldanga. On the 6th December 1943, the plaintiff filed a claim to the Joint Agent at Narayanganj for Rs. 10,719‑2‑0 for 407 maunds 20 seers at the rate of Rs. 26 per maund. T be Joint Agent sent the file to the Superintendent, Joint Claims Department, Calcutta, with the letter, Exh. E (5) of 7th December 1943. On the 18th January 1944, the latter wrote to the Chief Commercial Manager, B. & A. Railway asking him to arrange to forward 169 bags of gram and 11 bags of Khasari to destination (i.e., Narayanganj) or to accept liability for the claim of Rs. 10,719‑2‑

0. On the 18th February 1944, the Superinten dent, Joint Claims Department, Calcutta, directed the Joint Agent, Narayanganj, to give notice to the consignee that if he did not take delivery within fifteen days the consignment would be sold to realize the dues. Notice was accordingly given to the plaintiff on the 26th February 1944. Thereafter the plaintiff took delivery on 12th March 1944, when the time of the notice was to expire. The goods were found short by 44 maunds 6 seers. While taking delivery the plaintiff's officer made an endorsement that the delivery was taken without prejudice. On the same day the plaintiff again filed a claim for Rs. 5,222‑14 to the joint Agent, Narayanganj. In the letter of claim, Exh. E (28) he stated: "Regarding the above (Beldanga to Narayanganj invoice for 180 bags) on 11th March 1944, I submitted to you a letter No. 184 on which your honour agreed with the terms of that letter and ordered the Ghat Supervisor to give us the delivery and also have given him instruction to take delivery of consignment of Kalai instead of gram and Khesari. To‑day I have taken delivery of that Kalai consignment weighing 25 per cent. by which weight received 363‑14 seers against R. R. weight 407‑20 seers, i.e., shortage 44‑6 seers: The following are my claim amounts: Rs. As. P. 407‑20 at Rs. 10 per maund for quality 4,075 0 0 Short 44‑6 at Rs. 26 per maund 1,147 14 0 Total 5,222 14 0 Under the circumstances I hope your honour will be pleased to send me a cheque for Rs. 5,222‑14 at your earliest convenience." Mr. Hanson, defendants' officer, replied (Exhibit 2) that he was forwarding the letter to Joint Claims Department, Calcutta, for disposal. Then there was correspondence between the Superintendent, Joint Claims Department, Calcutta and the Chief Commercial Manager of the B. & A. Railway. The Chief Commercial Manager disclaimed liability by his letter, Exh. E (19), dated 31st May 1944. On receipt of this letter the Superintendent, Joint Claims, Calcutta, wrote to the plaintiff, Exh. 2 (b) on 12th June 1944. He quoted the letter of the Chief Commercial Manager, Railway and told the plaintiff that the bags, which the Steamer Company had received from B. & A. Railway had been correctly delivered to him, and that as. the Railway Company refused to admit liability, he could do nothing to assist him: The plaintiff then instituted this suit on the 20th October 1924, (sic) to recover Rs. 5,000 from defendants 1 and 2, the Steamer Companies, and the third defendant, their Joint Agent, relinquishing claim to the extent of Rs. 222‑14, The plaintiff's case is that on the 12th March 1944, when the took delivery, there was a contract between him and the Steamer Companies through their agent, the third defendant, that the defendants would pay him Rs. 10 per bag for quality and Rs. 26 per bag for the shortage. Alternatively, he contends that the defendants are bound as common carriers to pay him damage for shortage as well as for substitution of his goods by goods of inferior quality. The learned Courts below decided both the points against him and dismissed the suit. On the first question they held that there was no contract as alleged by the plaintiff. The alternative case was overruled by the trial Court on the ground that the plaintiff made no such case in the plaint. The learned District Judge dismissed it on the ground that the plaintiff had failed to prove that the loss and substitution complained of occurred after the acceptance of the goods by the defendants. The findings are based on oral and documentary evidence which have been fully and thoroughly discussed by the learned District Judge. Mr. Bose for the appellant frankly concedes that he is not in a position to assail the learned District Judge's finding that there was no contract on the 12th March 1944, as alleged by the plaintiff But as to his decision that the liability for the loss and substitution has not been brought home to the defendants, he contends that the finding of the learned District Judge is based on a wrong interpretation of the documentary evidence, which, as he says, constitutes an error of law entitling the appellant to assail it in second appeal. In view of the documents, which fell to be considered by the learned District Judge, the argument is inappropriate. The argument propounds that wrong inference drawn from any document constitutes an error of law, and enables the High Court under section 100, Civil P. C., to reverse a finding of fact based on it. That proposition is hit by The Secretary of State for India in Council v. The Rameswaram Debasthanam and others (38 C W N 533 (P C) ), where after observing that under section 100 of the Civil P. C., the High Court has no jurisdiction to reverse findings of fact arrived at by the lower Appellate Court however, erroneous, unless they are vitiated by some error of law, the Judicial Committee added: "The rule is equally applicable to cases in which th findings are based wholly or partly on inferences drawn from documents exhibited in evidence which are no instruments of title or otherwise the direct foundations of rights but are really historical materials." A finding, though based on erroneous inference drawn from documents, is nonetheless a finding of fact binding on this Court in second appeal, unless the documents, from which such inference have been drawn, or instruments of title o otherwise the direct foundation of rights. The documents, which fell to be considered by the learned District Judge, are letters of claim, correspondence relating thereto, and entries and endorsements in the business papers relating to dispatch and transit of goods. The decision of the District Judge, though mainly based on interferences drawn from such documents, is nonetheless, a finding of fact binding on us. The appeal is dismissed with costs. CHAKRABORTI, J.‑

I agree. K. B. A. Appeal dismissed.