Dominion of India vs Vrajlal Chheganlall and Co.

In view of the order we propose to pass in this case it will not be necessary to refer in detail to all the allegations in the plaint and in the written statements. Although the claim in the suit was in respect of alleged non-delivery of part of two consignments of biri tobacco to Shalimar-one from Nadiad and the other from Boriavi, in the present appeal by the Union of India the propriety of the decree so far as it refers to the consignment booked from Boriavi is concerned has not been questioned.

The points raised in this appeal are in connection with the consignment despatched from Nadiad. Such facts as are relevant to that only need be referred to.

On the 24th November, 1944, 189 bags of biri tobacco packed in bags were booked from Nadiad, a station on the B.B.C.I. Railway for being carried to Shalimar. The normal time for the transit of the goods to Shalimar was about 6 days. Out of the said 189 bags, the Railway Administration delivered to the consignee only 140 bags, 49 bags have not been delivered. It is contended that the Railway Administration neglected and refused to disclose how the consignment was dealt with from when the bags were booked and when they were under their possession and control. In July, 1945, the Claims Officer at Shalimar offered 27 bags of biri tobacco but as the said consignment bore a mark different from the one on the original consignment, they could not be taken delivery of as the same did not appear to belong to the plaintiff. Notices required u/s 80, C.P.C. and section 77 of the Railways Act were alleged to have been duly served.

The consignment booked at Nadiad on the B.B.C.I. had to pass through the G.I.P. and the B.N. Railways for reaching Shalimar. All these different sections of the Railway were State Railways and on the day when the consignment was booked or the date on which the suit was filed they were represented by the Governor-General in Council. In accordance with the practice, each one of the different Railways had been mentioned as the defendant represented by the Governor-General in Council. Separate written statements were filed on behalf of the Governor-General in Council as representing the B.N. Railway, G.I.P. Railway and the B.B.C.I. Railway.

As I had pointed out on other occasions the proper and correct manner of describing the defendant should be the Central Government or the Union of India. Now, each of the sections of the Railways by whatever name it may be called is not a separate party.

I indicate in brief the nature of the defence which was raised on behalf of the Governor-General. The original written-statement which was filed on behalf of the Bengal Nagpur Railway raised various defences resting on the terms and conditions contained in Risk Notes A, B, and C, all three having been executed by the sender.

In the written statement filed on behalf of the B.B. & C.I. Rly., it was stated in addition that the particular wagon in which the goods were being carried were seen to be on fire at Kalhar on the G.I.P. Railway. The fire was immediately extinguished and 140 out of 189 bags were salvaged in good condition which were re-loaded in another van and delivered to the consignment Shalimar on the 12th of February, 1944. It was further averred that out of the balance of 49 bags the quantity which was recovered was filled in 27 gunny bags and despatched to the destination in March, 1945. These bags arrived at Shalimar on the 13th April, 1945, but the plaintiff wrongfully refused to take delivery of the same. The remaining portion of the quantity had been lost by fire. On behalf of the G.I.P. Railway a petition had been filed adopting the written statement filed by the B.N. Railway. Subsequently an additional written statement was filed on the 8th November, 1946, by which the written statement filed by the B.B.C.I. Railway giving reference to the fire was also adopted. The cause of the fire was stated not to be known. The defence raised on the basis of the conditions in Risk Notes A, B, and C were also reiterated.

The learned Subordinate Judge found in favour of the plaintiff and decreed the claim subject to a small deduction.

As regards the merits the learned Subordinate Judge came to the conclusion that some of the important and relevant papers and some very important witnesses had been withheld by the defendant. The burden of proof on certain points was placed on the defendant. It was found that the defendant had not been able to prove that the bags not delivered had been destroyed by fire. Further, the Risk Notes did not absolve the defendants from all liabilities.

In the present case all the three Risk Notes A, B, and C, had not been executed. The principal defence was that the goods having been damaged or destroyed by fire the defendant was absolved under the Risk Notes.

The trial Court disbelieved the defence story of loss by fire. Evidence in this case was led in five installments. Some of the relevant documents were in the hands of some of the Railway witnesses when being examined. They were not however, actually filed in Court. This was probably due to the idea that the onus was on the plaintiff. Without going into the question as to whether in this particular case the Railway Administration was bound to make disclosure or that such disclosure had or had not been made, we have to consider on whom does the initial onus of proving loss by fire lie.

Under the old Risk Notes B and H the Railway Administration was not liable under any circumstances to pay damages for loss caused by fire, irrespective of the fact whether such fire was caused accidentally or through the willful neglect of the Railway servants, AIR 1926 341 (Lahore) . But in the existing Risk Note Forms B and H the words "provided the term ''willful neglect'' be not held to include fire, robbery etc", have been omitted. The difference between pre 1924 and the present Risk Notes is that under the earlier one the Administration was entirely absolved from responsibility in the case of fire etc. In the forms now in force the words ''willful neglect'' have been changed into ''misconduct'' and the Administration will be made liable in case of loss by fire, also provided that it was due to the misconduct of their officials.

To bring the case within the exception clause it is for the Railway Administration in the first instance to show that there was loss by fire. As soon as that is established the onus shifts to the plaintiff to prove misconduct. But when the Railway Administration witnesses are proving that there was a fire which was the cause of the destruction or loss leading to non-delivery either of the whole or of part of the consignment, the plaintiff claimant gets the opportunity to cross-examine such witnesses and place before the court materials which may or may not ultimately discharge the onus which lies on the plaintiff.

The Railway Administration as a bailee is primarily liable for the loss but it may exonerate itself under certain circumstances. It may places materials before the court to make it believe that the wagons in which goods entrusted to it had been so loaded with ordinary care, caught fire. As soon as the court is so satisfied the onus is placed on the plaintiff.

In the present case as indicated already the learned Judge has refused to accept the defendant''s plea that the loss was by fire. Many of the important witnesses as for example Sexsena, the Station Master at Kalhar who was the writer of Exhibits H.I. and J had not been called. So also Deolia and Srivastava who had written entries P. and P1. The Officer or Officers who were stated to have held the enquiry had not been called. Even the enquiry report or the Driver''s original report forwarded by Exhibit C or the Driver''s journal and the original telegram stated to have been sent from Kalhar to Shalimar on 28.11.45 were not before the court. Only the forwarding Note Exhibit O was proved but not the original report. The Assistant Station Master D.W. 3, stated not to have any personal knowledge about the entries Ex. H(1) and 1. The Assistant Station Master stated that he had the original enquiry report with him when he was being examined. Unfortunately the report was not produced in proper time.

The case had not been properly managed in the trial Court though grave suspicion may arise there are lacunae left. In the interest of justice, we think the necessary documents which were in the possession of the Railway Administration ought to be produced and the witness, who can speak about the fire, examined by the plaintiff. We direct that the parties will be given a further opportunity of adducing fresh evidence before the trial Court only on the question whether the goods were destroyed by fire and if so, under what circumstances. The records will be sent down with the above direction. The learned Subordinate Judge will return the record of the evidence now adduced to this Court within four months from this date. A supplementary paper-book will be prepared at the cost of the appellant. The appeal will then be disposed of on the evidence already on the record and the evidence as may be produced as under this order.

After remand the following judgment was delivered on 20.4.56.

Mookerjee, J.

After the case had been sent back on the 12th April, 1954. allowing fresh opportunity to the Union of India to adduce evidence as referred to in the order of remand, the latter has failed to produce any additional material, not even those items of evidence which were available when the original trial had taken place. It appeared that when some of the witnesses were deposing, they had in their hand some records to which reference was being made but were not filed in Court. Even such materials have not been produced.

The learned Subordinate Judge had on the previous occasion come to the conclusion that the plea of destruction by fire as set up by the defendant had not been proved. In the existing state of the records no other conclusion can be reached. Mr. Bose appearing on behalf of the appellant has not seriously contested that position.

If destruction by fire is not proved, then the plaintiff is entitled to full disclosures by the defendant as to how the consignment was dealt with during the period that it was in the custody of the bailee. A portion of the consignment has not been delivered. We must, therefore, hold that the defendant having failed to disclose fully, the plaintiff is entitled to compensation for the portion of the consignment which had not been delivered.

There are two small items to which reference has been made by Mr. Bose. The amount of compensation as assessed by the learned Subordinate Judge has not been questioned before us, so far as the value of the consignment and the price of the gunny bags are concerned. The learned Subordinate Judge has allowed Rs. 5/- for postal and other charges and Rs. 835-8 as. as interest. Mr. Chakravarti appearing on behalf of the plaintiff respondent, without conceding the question of law, has agreed to reduce the amount decreed by Rs. 340-8as. in respect of the two small items mentioned above.

The result, therefore, is that this appeal is dismissed subject to the variation that the amount of claim will be reduced by Rs. 340-8as. (Rupees Three hundred forty and annas eight only). The costs allowed by the lower Court will not be disturbed because of the reduction of the amount as mentioned. The appellant must pay the cost of this appeal to the respondent. The appellant must pay the entire amount of the decree within three months from this date less such amount as might have been paid in the meantime.

Renupada Mukherjee, J.

I agree.