P L D 1957 (W (PLP)

MUHAMMAD BACHAL, J.-The plaintiff has sued claiming a sum of Rs. 38,440 for the failure of the N.-W. Railway to deliver pieces of artificial silk worth Rs. 29,127-14-3 out of the five cases of artificial silk despatched from Karachi Bunder to Sukkur Bunder. The plaint states that on the 1st May 1948 the plaintiff despatched five cases of artificial silk worth Rs.40,528-5-6 from Karachi Bunder to Sukkur Bunder. When the con signment arrived at Sukkur it was found in a damaged broken and quite unsatisfactory condition. Hence open delivery was demanded by the plaintiff. On the 18th May on checking the contents with the Beejak, goods worth Rs. 29,127-14-3 were found short and missing and an iron hook was also recovered from inside the broken case for which a remark was duly given in the delivery book. The plaintiff claims the above amount, Rs. 7,282 damages, Rs. 2,010-2-3 interest and Rs. 20 costs of notices and correspondence. He served the railway authori ties the statutory notices under section 80, Civil P. C. and section 77 of the Railway Act. The principal pleas taken by the defendants in the case are that the plaintiff has no right to sue, that the suit is not within time, that they are not liable as a part of it was stolen en route and that the consignment contained excepted articles. Apart from these pleas, the plaintiff was put to proof of facts stated in the plaint, it being denied that the value of the cloth was Rs. 40,528-5-6 and that the value of the missing articles was Rs. 29,127-14-3. The following issues were raised

1. Has the plaintiff' right to sue ?

2. Is the suit in time ?

3. On what terms was the consignment in suit carried ?

4. Was the defendant common carrier, trustee and insurer of the goods in question ? If so, what is the result ?

5. What is the extent of the shortage ?

6. Is the defendant liable for the alleged shortage as alleged by plaintiff ?

7. Is the defendant exonerated from liability as alleged by para. 6 of written statement ?

8. Is notice alleged to have been given under section 77 of Railways Act in order ?

9. Is the notice alleged to have been given under sec tion 80, Civil P. C. in order ?

10. To what amount if any is the plaintiff entitled ?

11. General. My findings are as follows: Issue No. 1.-Yes. Issue No. 2.-Dropped. Issue No, 3,-As per risk note, Issue No. 4.-Dropped. Issue No. 5.-Rs. 29,127-14-3. Issue No. 6.-Yes. Issue No. 7.-No. Issues Nos. 8 and 9.-Dropped. Issues Nos. 10 and 11.-Suit decreed as below :-- Issue No. 1.--The R. R. (Exh. 5/6) is in the name of Ibrahim Abdullah who endorsed it to the plaintiff. My finding on this issue is in the affirmative. Issue No. 2.-This issue was dropped as the statutary notices were proper. Issue No. 3.-My finding on this issue is that the terms are mentioned in the risk note (Exh. 8/2). Issue No. 4.-This issue was dropped. Issue No. 5.-Abdul Sattar of the firm of Haji Sattar Haji Ismail states that the plaintiff purchased the goods from this firm as per Beejak (Exh. 7/1 and 2) and entries (Exhs. 5/1 and 2) for Rs, 17,037-13-6 and Rs.23,490-8-0 total Rs. 40,528-5-6, out of which the entry (Exh. 7/4) in the delivery book shows that articles worth Rs. 26,631-3-9 were missing. My finding on this issue is that the articles worth Rs. 26,631-3-9 were missing. The entry (Exh.7) shows that the plaintiff paid Rs. 2,496-10-6 Sales Tax on this amount. The amount will be Rs. 29,127-14-3. Issue No. 6.-Mobinullah who was employed in the Karachi Goods Shed booked the articles. Sardar Khan checked the seals and rivets at K. B. X. Sadik Hussain guard checked the seals of the wagon from Karachi City to Kotri. Shujjat Ali checked them at Kotri. Manzoor Hussain guard checked them from Padidan to Rohri. Habibullah, M. R. George and Bashir Ahmed checked them at Rohri. Karimali and Marghoob Khan checked them at Sukkur. They all found the seals and rivets intact. On the 5th May 1948 when the wagon arrived at Sukkur Anwar Hussain, loading clerk, who unloaded the goods found the articles missing from the wagon and made such entry. M. R. George in his cross-examination states that only this particular wagon had long tape seal in the whole train. Long tape seals can be opened without showing any sign that it had been interfered with. Mobinullah, booking clerk Karachi Goods Shed, states in his cross-examination that in March 1948, there were large number of cases of goods stolen from the railway yard. Marghub Khan goods clerk, Sukkur states in his cross-examination that during this period in 1948, several cases of pilferage were detected from wagons coming from Karachi and other stations. The learned Advocate for the plaintiff has therefore argued that the defendants will be liable for this shortage. In Secretary of State v. Nand Ram Chhotey Lal (A I R 1929 All. 749) it was found that tin shackles had been. put on the wagon in which the bags were loaded and it was further found that there had been many thefts on the line. In these circumstances Sulaiman and Niamatullah, JJ. held the railway company liable. In this case the method of fastening by long tape seals speaks for itself and the railway company knew that the wagons sealed in this manner were quite likely to be tampered with. The evidence of the constant thefts on the line would further show that a person endowed with a minimum of prudence and common sense would know that the means taken for fastening the wagon as it was fastened in this case for a long journey were simply to invite theft. It is clear therefore that the circum stances were such as to put the railway company on their guard and induce them to arrange things in such a way that these constant thefts should become rare. The defendants are therefore guilty of misconduct. My finding oil this issue is in the affirmative. Issue No. 7.-Mr. Zahidi for the defendant has urged that as the articles purchased by the plaintiff were of great value, they should be included in the terms "silk" mentioned in Schedule 11 of the Railways Act. No authority has been quoted. But on the other hand Mr. Sherali for the plaintiff has relied upon Federation of Pakistan v. Eshan Ilahi (P L D 1955 Lah. 303.), where it was held that the artificial silk was not silk within the meaning of Schedule II of the Railway Act. My finding on this issue is in the negative. Issue Nos. 8 and 9.-These issues have been dropped. Issue Nos. 10 and 11.

The plaintiff in his evidence states that the percentage of profit on these goods is Rs. 20 or Rs. 25 per cent. Abdul Sattar of the firm of Haji Sattar-Haji Ismail states that the plaintiff is a retail dealer. The retail dealers get about 15 to 20 per cent. margin profit, according to the times. He does not remember what was the margin of profit at the time the plaintiff purchased the articles from their firm. There was shortage of goods and therefore there was good margin of profit. The amount of profit claimed is disallowed as no materials have been furnished for assessing the amount and besides this and interest claimed on the damages cannot be allowed. The result is that the suit is decreed for Rs. 29,127-14-3 and costs in proportion with interest at 6010 p. a. on Rs. 29,127-14-3 from the date of suit till payment. A. H. Suit decreed.