East Indian Railway Co. vs Gobardhan Das

Mullick, Ag. C.J.

On 24th February 1921 the plaintiff consigned to the defendant Company 25 bags of coriander seed at Howrah and on 20th September 1921, he consigned 125 bags of sugar at the Kidderpore Docks for delivery at Giridih to himself. It is admitted by the plaintiff that 16 bags of sugar and one bag of coriander seed were lost and the present claim is for Rs. 782 as damages.

The defendant set up a risk note in form B and declined to give any account of what had become of the goods.

The Munsif decreed the suit and on appeal the Subordinate Judge affirmed that decree.

The present second appeal is preferred by the defendant.

The sole question is whether the risk note absolves the defendant from liability. The Subordinate Judge thought that the risk note did not apply because this was a case not of loss but of nondelivery and in his opinion a loss to the plaintiff is not sufficient and the defendant must give proof of loss to himself. He relied on the case of Ghela Bhai Punsi v. E.I. Ry. Co. AIR 1921 Bom 443. But it has been held in G.I.P. Ry. Co. v. Jitan Ram Nirmal Ram AIR 1923 Pat 285 that in order to make the risk note applicable it is sufficient that the plaintiff pleads loss to himself and that it is not necessary for the defendant to give evidence that the goods have been lost to him also. Reference was made in that case to the judgment of the House of Lords in Smith Ltd. v. Great Western Railway Company (1921) LR 2 KB 237 and Ghela Bhai''s case AIR 1921 Bom 443 was dissented from. The same view has been taken in other cases in this Court and I think we must follow the cursus curiae.

Our attention has been drawn to East Indian Railway Company v. Sukhdeo Das and Gobardhan Das AIR 1924 Pat 25 where a learned Judge of this Court sitting alone held that the risk note did not apply because the defendant had not pleaded loss within the meaning of the special contract. It would seem that the decision in that case turned upon the special language used in the written statement. But the G.I.P. Ry. Co. v. Jitan Ram Nirmal Ram AIR 1923 Pat 285 is quite clear and lays down the following rules: (1) where a contract contains an exception and a proviso the party who desires to take the benefit of the exception must (if the contract requires it) not only plead the exception but prove it, and when that has been done the other party who desires to take the benefit of the proviso, which is in reality an extrinsic covenant by way of defeasance, must prove that the subject-matter is not within the exception; (2) upon the special contract in risk note B the burden of proof lies in the first instance upon the defendant to show that there was such loss as is contemplated by the risk note and the onus is then shifted upon the plaintiff to show that the loss was due to the wilful neglect of the defendant.

Therefore if the plaintiff admits the loss, then all that the defendant has to do in his written statement is to plead the contract. He is not required to bring any evidence to support his plea. If, as is frequently the case, the plaintiff is astute to plead not loss but only nondelivery, even in that case the defendant need only plead the contract and he will be relieved from the duty of calling evidence.

The question really turns upon the construction of the risk-note. Does it intend that loss to the plaintiff only will be sufficient to bring it into operation or does it intend otherwise? In my opinion the answer is that the decision in G.I.P. Ry. Co. v. Jitan Ram Nirmal Ram AIR 1923 Pat 285 was correct and the contract requires that loss to the plaintiff is sufficient to bring it into operation. If the goods are being wrongfully withheld by the Railway Company and have not been lost to them I see no hardship to the plaintiff in construing the risk note to cover such a case. The plaintiff would them be entitled to an immediate decree on the ground that the goods have been lost to him by reason of the wilful neglect of the defendant to deliver. If the defendant has good grounds for detaining the goods he must prove them. Therefore in my opinion, the learned Subordinate Judge''s finding that the failure of the defendant to give any account of the disappearance of the goods proves that the goods have not been lost within the meaning of the risk note cannot be supported, and the risk note also applies where the plaintiff only pleads non-delivery. In truth, in most cases the real object of asking the defendant to call evidence of loss to himself is not to test the correctness of the defendant''s allegation but to get by cross-examination some evidence of wilful neglect so as to found a claim under the proviso.

A contrary view has recently been (taken in the Calcutta High Court in the East Indian Railway Co. Vs. Jogpat Singh, . In arriving at the conclusion that loss to the plaintiff is not sufficient the learned Judges in that case have relied upon the language of the English Carriers Act of 1830 and the decision of Baron Parke in Hearn v. London and South Western Railway Company (1885) 10 Ex 793. But my respectful opinion is that the English Carries Act is not in pari materia with the Indian Railways Act; and having regard to the fact that a carrier under the English Act is an insurer which a railway company in India is not, I do not think we are compelled to give the word "loss" the same meaning here as in the Carriers Act.

If then the risk note applies, is the plaintiff entitled to succeed on the ground of wilful neglect on the part of the Railway? The learned Subordinate Judge''s judgment on this point is as follows: "The position of the plaintiffs was such that it was not possible for them to make anything more than a general statement of the fact of negligence as inferred from all the circumstances. And they are not to blame if they have not been able to make out by means of cross-examination the specific acts of negligence because the available evidence on the question of loss has not been placed before the Court." If that is the position I cannot see upon what evidence the learned Subordinate Judge comes to the finding that there has been wilful neglect. "Neglect" means the omission to perform a duty and implies that a man does something which ought either to be done in a different manner or not at all, or that he omits to do something which ought to be done. Here the defendant''s duty was that of a bailee, namely, to take such care of the goods as a prudent man would have taken of his own goods. The degree of care required depends on the circumstances of each case. The plaintiff must show that the defendant did something which a prudent man in his circumstances, and having regard to the previous course of dealing, would not have done. There is no such evidence

The defendant in cross-examining one of the plaintiff''s witnesses suggested that he, the plaintiff, had as a matter of fact, locked the wagons with his own locks, but that was denied. The learned Subordinate Judge does not find that it was the defendant''s duty to supply locks to the wagons and there is no evidence that the defendant did not take that case which he would ordinarily take of his own goods or of the goods of his other consignors in transit.

Then the learned Subordinate Judge says that if the goods were stolen before they were loaded there must have been neglect. That does not follow. He also says that if they were delivered to a wrong party there must have been neglect. There is no proof that they were delivered to a wrong party.

There is therefore no legal evidence of neglect at all. But wilful neglect goes far beyond this and implies that the defendant knew that he should do a particular act and that he deliberately abstained from doing it. There may be cases where neglect may be deliberate and yet not wilful, as for instance when the act is not that of a free agent. Apart from such cases it may be said that every omission is wilful because everyone must be presumed to have intended the ordinary consequence of his act. But the mere presumption of law for the purpose of fixing responsibility is not sufficient. The plaintiff must show that the neglect was not accidental and that the person knew that mischief would result from his conduct or that there was an indifference to his duty to ascertain whether such conduct was mischievous or not. In Lewis v. Great Western Railway Company (1887) 47 LJQB 131 the question was whether there had been wilful misconduct in packing certain cheeses in London and Lord Justice Bramwell expressed himself on the subject as follows: I cannot, however, say that there was evidence here to show that the packers who were in London, which is not a great place for the exportation of Cheshire cheeses, knew that they were doing wrong, or at all events that they were aware that there might be mischief resulting from it, and that they improperly did not inform themselves as to whether there would be, or would not be, mischief resulting."

In my opinion there was no legal evidence of wilful neglect hero and therefore the plaintiff is not competent to succeed.

The result is that the appeal will be decreed with costs throughout.

Kulwant Sahay, J.

I agree.