Bisheshwar Prasad and Others vs E.I. Ry. Co. and Others

Wort, J.—This is an appeal by the plaintiff against the decision of the District Judge in two suits by the plaintiffs brought for recovery of Rs. 3,453-5-9 and Rs. 4,649-2-0 from the defendants, E.I. Ry. Co. and others. In the first suit the plaintiffs were consignors of 52 bales of cloth to be despatched from Asarwa to Muzaffarpur and in the second suit 45 bales of cloth also from Asarwa to Muzaffarpur.

On the consignment of 52 bales, 3 bales were delivered in a damaged condition, some of the contents being removed and there was non-delivery of 5 bales; the remaining 44 bales were delivered in accordance with the contract. Of the 45 bales 37 were delivered intact. There was no delivery of 6 bales at all and of the 2 remaining bales the outer covers or sacks were delivered the contents having gone. All the packages which are the subject matter of the appeal were loaded in one wagon No. 35761 at Asarwa and with that wagon only we are concerned. According to the risk-note the route specified was Asarwa to Agra East Bank to Tundla Junction and from Tundla Junction to Cawnpur, there to be delivered to the Bengal North Western Railway to be sent to Muzaffarpur. There is no doubt in the first instance that there was a deviation from the specified route at Tundla.

The wagon was sent from Tundla to Moghal Sarai and from Moghal Sarai to Benares to Muzaffarpur. There was a delay at Tundla Junction of 39 days. Of the three bales which were delivered in a damaged condition out of the 52, one bale was so damaged after it left Tundla Junction and the railway company (the respondents) therefore concede that there having been a deviation from the specified route so far as that loss is concerned which took place after the wagon had left Tundla they cannot rely upon the terms of the risk-note. To that extent at any rate, in the first instance, the decree of the District Judge will be modified.

It will be convenient at this stage to state that the risk-note upon which the goods were sent provided that:

The Railway Administration was to be held harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to the Company from any cause whatever except for the loss of a complete consignment or of one or more complete packages forming part of a consignment due either to the wilful negleat of the Railway Administration or to theft by or to wilful nogleot of its servants, transport agents or carriers employed by them during and after transit over the said railway or other railway lines working in connexion therewith.

So far as the 5 bales of the 52 and the 6 bales of the 45 which were short delivered are concerned it is argued on behalf of the railway company (the respondents) that there was no wilful negligence and therefore they cannot be held responsible for this loss. However there is a clear finding of both Courts that there was wilful negligence on the part of the railway company. It appears that after arriving at Tundla on 9th January 1924 the wagon remained there for no less than 39 days and that it was discovered on no less than two occasions that the seals of the wagon had been broken but there was no check of the contents of the wagon by the railway company or its servants. It would be impossible to hold under these circumstances that the judgments of the Courts below were wrong in deciding that there was wilful negligence on the part of the railway company and this point was only faintly contended by the respondents.

We are, therefore, concerned now with only those packages which either had been delivered in a damaged condition part of the contents being removed or the whole contents having disappeared.... It is argued on behalf of the appellants here that the learned District Judge was wrong in disallowing their claim with regard to these, as whatever may be the true interpretation of the risk-note, the terms of the contract in the risk-note did not bind them as there was a deviation from the agreed route: Vali Mahomed Hamad v. G.I.P. Ry. Co. AIR 1922 Bom. 74. The answer to this, however, is that the loss so far as has been proved, occurred at Tundla and therefore before the deviation from the agreed route had commenced.

It is true that the onus was upon the railway company (the respondents) to prove that such loss if any occurred before such deviation. But it clearly appears from the judgments of the Courts below that this fact has been established by either one party or the other. It comes therefore to be seen whether as regards the two bales the whole of the contents of which have been removed come within the terms of the risk-note. I must hold in agreement with the learned District Judge, so far as the two bales a part only of which disappeared, that the railway company is protected and the plaintiffs cannot recover. Amongst the exceptions for which the railway company hold themselves liable is the loss of a complete consignment or of one or more complete packages. As regards these two packages it cannot be said that it is a loss of two complete packages.

However, there remains the two packages of which the covers only had been delivered by the railway company.

In disallowing the claims with regard to these the Courts below have relied upon the decision of the Calcutta High Court in the case of Kali Das v. E.I. Ry. Co. 21 C.W.N. 815, and a case of this High Court: Bhagwan Das and Another Vs. The East Indian Railway Company, . This High Court followed the decision of Kali Das Mallick and the E.I. Ry. Co. in a very short judgment feeling themselves bound by that decision. The case in the Calcutta High Court in which a similar risk-note was involved was a case in which of a consignment of ghee in some instances only the empty tins were delivered.

It was held that the railway company was not liable. However, each case must depend upon its own facts. The respondents in this case rely upon the case of G.W. Ry. Co. v. Wills [1971] A.C. 148. This case, however, is of little assistance to the respondents as the agreement in that case created a liability in the case of "non-delivery of any package or consignment fully and properly addressed. Those were the words which were to be construed and there was no dispute about the facts. The case is useful in this instance: vide the speech of Lord Lore-burn, p. 153 as it lays down, "whether there has been a delivery or non-delivery is a question of fact;" and if I may say so with respect to the opinion of Lord Loreburn, that must be so. In the case before us there is no finding of fact of whether there has been delivery or non-delivery of these two packages but it has been found that only the outer covers or gunnies have been delivered. In ordinary circumstances, in most cases, it would be necessary to remand the case to the lower appellate Court for a decision on the question whether as regards these two packages there has been delivery or non-delivery of the two packages. But in my judgment in this case that course is unnecessary.

The facts are sufficiently before this Court and exercising the powers given to the Court u/s 103, Civil P.C I would find as a fact that as regards these two packages there has been no delivery. Lord Loreburn further says in the case to which I have referred that a Judge or a jury ought to answer the question: Was there in substance and in a business sense delivery or not? If this question were put to the lower appellate Court in this case, I think, that an answer in the negative would be inevitable.

In these circumstances, I would allow the appeal so far as these two packages are concerned and grant a decree in the suit in favour of the plaintiffs for the 11 packages which they already recovered; also for the one package which the railway company now admits went astray after the deviation; and also for the two packages covers of which only have been delivered.

The cross-objection is not pressed and is dismissed. Appellants are entitled to their costs in this Court and lower appellate Court in proportion to their success.