Dominion of India vs Jokhiram Agarwalla

Chunder, J.—This is an appeal against the appellate judgment of the Subordinate Judge of Darjeeling affirming that of the Munsif of Kurseong. The facts, as far as at present ascertained, may be clearly stated as follows:

Messrs. E. Spinner and Co. of Bombay despatched a bale of clothes containing various kinds of textile materials from Wadi Bandar, Bombay, on the G.I.P. Railway, to the Plaintiff at Kurseong, on the Darjeeling-Himalayan Railway, on July 16, 1942. The consignment never reached Kurseong and was never delivered to the Plaintiff. The Plaintiff, therefore, sued for recovery of compensation for non-delivery of the goods booked to him.

The defence was that the consignment arrived at Mokameh Ghat on August 1, 1942, and was unloaded on the following day, the reason given being that restrictions had been imposed on traffic of goods to Kurseong by the Darjeeling-Himalayan Railway, as there was a breach at Loop 2 due to landship and, therefore, all inward booking through that line had been stopped. As a result of this, the B. and N.W. Rly., now the Oudh and Tirhut Railway, could not further despatch the goods beyond Mukameli Ghat and the goods were detained there. This part of the story has not been accepted by both the courts and must now be taken as final. Both the courts have found that the railway company failed to prove any such written message from the Darjeeling-Himalayan Railway restricting transit of goods. Oral evidence was given on behalf of the Defendant, the Dominion of India representing the East Indian Railway administration to prove this. That oral evidence, for reasons discussed in both the judgments, was disbelieved. We must, therefore, proceed upon the finding that, through negligence, the Bengal and North-Western Railway detained the goods at Mokameh Ghat from August 1, 1942. It appears that a serious civil commotion, almost putting an end to British rule, broke out in that part of Bihar about August 13, 1942. This is called the 1942 rioting. As a result of mob violence, the goods were looted and, therefore, they were not sent on and were not delivered to the consignee the Plaintiff, Jokhiram Agarwalla.

Mr. Bhabesh Narayan Bose, appearing on behalf of the Appellant, has contended here that, even accepting the finding that the goods were negligently detained by the railway administration at Mokameh Ghat from August 1, 1942, the damage was too remote and the railway administration is not liable for the loss of the goods by the act of the rioters. It is well-settled now that the general liability of a railway, apart from any special contract, is that defined in Section 72 of the Indian Railways Act, which runs as follows:

The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall subject to the other provisions of this Act be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872.

We may just mention that there is no other provision of the Indian Railways Act which has any application to the case before us. In connection with Section 152 of the Indian Contract Act, Section 151 of that Act will also have to be looked into. Therefore, liability of a railway administration is to be determined on basis that they act as bailees and are liable to, the extent set (sic) in Sections 151, 152 and 161 of the Indian Contract A his (sic) ordinary liability under the law in India. It (sic) by a contract or increased. There is no case of any special contract before us here. It is well-settled that the railway administration in India does not act as insurers of goods made over for transmission. The duty of a bailee under the Indian law is to take such care of the goods bailed to him as an ordinary prudent man would take of his own goods. This is absolutely clear from Section 151 of the Indian Contract Act. The question, therefore, boils down to this, namely, whether an ordinary prudent man under the circumstances of the present case would have been liable for the loss or damage which ultimately occurred or was the damage too remote.

My attention has been drawn by Mr. Bhabesh Narayan Bose to an observation made by a Division Bench consisting of Sir Ashutosh Mookerjee and Cuming JJ. in Surendra Lal Choudhuri v. Secretary of State for India in Council (sic)N. 1125. It is no doubt an obiter, but has good reason to support it. In that case, certain goods were destroyed by a severe cyclone in course of transmission from Rungpore to Calcutta. The Division Bench pointed out that, when goods had not been delivered to the consignees at the place of destination, the Plaintiff need not prove how the loss occurred. The burden lies upon the bailee to prove the existence of circumstances which exonerate him from liability for the loss. With this statement of the law I am in full accord. In that case, the Division Bench found that the Defendant railway administration had discharged the burden that was on it and wag exonerated. Then, having come to this finding, the Division Bench further proceeded to say:

We may add that even if it was established that there was avoidable delay in the transmission of the goods, it is at least doubtful whether the Plaintiff would have any remedy against the Defendant. Assume that the conduct of the Defendant has been negligent within the definition formulated by Alderson Bin Blyth v. Birmingham Water Works Company (1856) 11 Ex. 781:156 E.R. 1047 ... still the question arises whether the act of God is not the proximate cause of the loss and the alleged lack of diligence of the Defendant nothing more than the remote cause.

Following what has been laid down by Beven in his work on Negligence and a unanimous judgment of the Supreme Court of the United States in Memphis Rail Road Co. v. Reeves 10 Wallco 176 the Division Bench was of opinion that, in a case of this nature, the damage would be too remote and the bailee would not be liable. It has been pointed out by Beven that, where an extraordinary cause is the primary means of setting in motion an injurious agency and by co-operating with the negligence of a person, produces injury to some other person, the negligent person is not liable, for, not only would his negligence alone fail to produce the injurious effect, but the exciting cause being an extraordinary occurrence an act of God, was not reasonably to be anticipated nor guarded against. The negligent act in such a case is not followed by injurious results in natural and probable sequence, but only by the occurrence of something abnormal and not to be anticipated. Mr. Bhabesh Narayan Bose''s whole contention in the present case has been that the railway administration could not have anticipated the extraordinary circumstances and their negligence in not forwarding the goods from August 1, 1942; could not alone apart from these extraordinary circumstances which could not have been anticipated, have produced the damage that it did. The contention is sound and what I have pointed out from Beven lays down the correct principle.

Mr. Bakshi has drawn my attention to an unreported decision of a single Judge of this Court in Governor-General of India in Council (as owner of the East Indian Railway Administration) v. S.M. Rafi (1950) S.A. 1928 of 1945 of which the judgment was delivered on July 4, 1950. In that case, on August 11, 1942, a consignment was booked from Delhi station for Howrah, both being on the East Indian Railway. It is said that the goods were despatched by the down Parcel Express train and when they arrived at Patna they were sent on to Mokameh station and not forwarded any further and were looted during the August disturbances of August 13 and the following days. In that case, the finding arrived at by the subordinate court was that, when the goods arrived at Mokameh and were not forwarded, the condition was such that the railway administration should have, as reasonable and prudent men, anticipated the damage that was going to be done and the looting that was going to take place, as the disturbances had already begun. Rioting had broken out and still nothing was done and, therefore, in that case the subordinate courts, as also the learned single Judge of this Court, agreeing with those courts on facts, held the railway administration to be liable. The case of Surendra Lal Choudhuri v. Secretary of State for India in Council (supra) was referred to in that case and distinguished. My attention has also been drawn to an unreported decision of a Division Bench (to which I WAS a party myself with Sen J.) in the case of Governor-General of India in Council (as owner or the East Indian Railway Administration) v. Prohladrai Marwari ILR [195(sic)]. In that case, it was held by the Division Bench that there was no negligence on the part of the railway administration in view of the circumstances then existing. On such finding the railway administration was held to be not liable. Neither of these two decisions have really any bearing on the present case. In the present case, it has not yet been established whether when the railway administration could have anticipated (sic) the extraordinary circumstances prevailing at Mokameh Ghat and the danger to goods from looters they could have taken any step either to send on the goods or prevent loss by looting. This aspect of the case was not considered in either of the courts below in view of the way in which the case was conducted there. The excellent way in which Mr. Bhabesh Narayan Bose has clinched the whole matter in this Court was not before the courts below. Mr. Baksi has urged that this aspect of the case should never be considered.

Therefore, accepting the finding of both the courts below, and this being no longer open to further challenge, I send the case back to the trial court, setting aside both the decrees of the trial court and the first appellate court for a decision, after taking proper evidence on both sides, as to whether the railway administration could have, between August 1, 1942, and the looting of the goods by the rioters in the August disturbances, at any stage, anticipated such loss by looting and could have then taken steps to obviate such loss by either sending on the goods or taking proper steps, which would be taken by an ordinary prudent man, diligent in his own affairs. If the court finds that, judged by such a standard, the railway administration could have anticipated and prevented the loss, it will decree the suit of the Plaintiff for the value of the goods only and costs, and if judging by such a standard it is of opinion that the railway administration could not anticipate it and could not prevent the loss by rioting after exercising the diligence of an ordinary prudent man then it will negative the claim for damages.

A small point was taken, namely, that the courts below were not right in awarding ten percent over and above the value of the goods as interest by way of damages. That is not allowed under the law. The measure of damages will be the price of the goods and that was awarded by the courts. Further interest was neither contracted for nor is allowed under any law and the Interest Act does not apply in the present case. Therefore, I have pointed out that the measure of damages will be the value of the goods and not anything in excess of that.

As the point on which remand is taking place was for the first time taken by Mr. Bose in this Court, the Plaintiff should have his costs up to this stage including of costs of this Cesrt. Further costs will abide the result and be in the discretion of the court below.