Jalim Chand Seraoji vs The Union of India (UOI) and Another

Deka, J.—This appeal is by the plaintiff who made a claim of Rs. 10,900/- against the Union of India for loss of 201 bags of gur khurpada booked by a consignor on 29-9-48 from Shamli Railway station of the S.S. Light Railway to Gauhati, and the Railway Receipt was endorsed by defendant 2 in favour of the plaintiff, it being Railway Receipt No. 26/009930.

The plaintiff did not get delivery of the articles and, as such, asked for the price of the ''gur'' at the rate of Rs. 25/- per maund, and further charged interest on the amount at the rate of Re. 1/- per cent per month, the total claim thus coming to Rs. 10,900/-, as indicated above. The plaintiff alleges that the articles were not received by him, but did not specifically state in the plaint as to where the loss occurred. He brought the suit for compensation after issuing the necessary notices on the Railway Authorities.

The defence taken by defendant 1, the Union of India, was that they were not liable to pay any amount to the plaintiff as price of the articles lost or as compensation, inasmuch as none of the Union Railways was responsible for the alleged loss. Their main defence is set out in para 4 of the amended written statement filed on 4-9-50, which says--

The S.S. Light Railway, which is the contracting Railway, is not owned and managed by the answering defendant. Only 200 bags were made over by the S.S. Light Railway to the East Punjab Railway owned by the answering defendant, and these 200 bags were correctly made over by the East Indian Railway owned by the answering defendant to the E.B. Railway owned by the Dominion of Pakistan in wagon No. N.W. 30914 at Naihati, which met despatch by NHP 5 UP of 12-11-1948, But the Eastern Bengal Railway did not make over the consignment to Assam Railway at all. The answering defendant has no control over the management and administration of the Eastern Bengal Railway and, as such, the answering defendant denies liability.

It may be stated here that the plaintiff did not make the S.S. Light Railway a party to the suit, nor did he ask for any relief against the Game. The plaintiff examined one witness, an employee of the plaintiff''s Arm, and the defendant examined one of the Railway officials, namely, the Goods Clerk at Gauhati Railway Station.

The learned Subordinate Judge found that defendant 1 was not liable inasmuch as the loss occurred in the E.B. Railway alter the goods were consigned to it, as pleaded by defendant 1, and since that Railway is not within the administrative control of the Union of India, nor a party to this suit, the plaintiff could get no decree against the Union of India.

The learned Subordinate Judge further observed that the case of both the parties, meaning the plaintiff and the contesting defendant, was that the goods reached the E.B. Railway in due course and that since the E.B. Railway was a foreign Railway and they had not made over the goods to the Assam Railway, as alleged, neither the Assam Railway nor the Union of India was liable for compensation, as sued for.

The learned Advocate General appealing on behalf of the plaintiff, has urged before us that since it is conceded by defendant 1 that the goods were passed on to the E.I. Railway, they had the responsibility of a bailee as contemplated under Sections 72 and 73, Railways Act, and they were to make good the loss u/s 76 of the said Act, since the articles were not delivered to the plaintiff from their possession.

The inference, under the circumstances, must be that the loss occurred when the articles passed through the E.I. Railway, which is under the management and control of the Union of India. The learned Government Advocate, on the other hand, contends that since the accepted position is that the goods were delivered to the E. B. Railway, by the Eastern Bengal Railway no liability rests either on the Assam Railway or the E.I. Railway to make good the loss alleged, since the E.B. Railway had not delivered the articles to the Assam Railway. He relies on the deposition of the plaintiff''s witness who deposed to the effect that from S.S. Light Railway the consignment came over to E.I. Railway, then to E.B. Railway and then to Assam Railway". He further said that the consignment was lost in the Assam Railway, and according to him, it was sold in auction at the Gauhati Railway Station, when he was present there.

The Union of India pleaded that the S.S. 1 Light Railway is a private Railway, and not a State Railway, and that position has been accepted by the plaintiff, but what the learned Advocate General urges is that the plaintiff is not as much bound by what the witness for the plaintiff said as he was by the statements in the plaint.

P.W. 1 was only an employee of the plaintiff and had no personal knowledge of what happened to the goods when they passed through the Railway (Administration. He urges that it was the duty J of defendant 1 to prove, through the employees of the Railway Department, that the articles had, as. a matter of fact, been delivered at Naihati to the E.B. Railway, as alleged.

The only presumption that can be drawn from non-production of the E.I. Railway papers, according to him, is that since defendant 1 found that the statement to the effect that the articles were made over to the E.B. Railway could not be supported from the entries in the books of the Railway Department, the evidence was withheld. His submission is that Section 106, Indian Evidence Act applies to the facts and circumstances of the case, and the matter of transfer of the goods to the E.B. Railway being in the special knowledge of the Railway Department, they ought to have come with evidence to show that it was a fact.

There is undoubtedly some force in this argument, but since the plaintiff had accepted the position as deposed to by P.W. 1, an employee of the plaintiff''s firm, that the articles parsed to E.B. Railway from E.I. Railway, the burden no longer rested on defendant 1 to prove the transfer of the goods. It is an accepted position in law that when evidence has been adduced by both parties, the onus itself loses much of its importance, and the fact has to be gathered from the evidence adduced by the parties.

Here, we are of opinion that the learned Subordinate Judge was right in accepting the defendant''s position as correct in the matter of passing over of the articles to the E.B. Railway, more particularly when the wagon number as well as the Train number and the date of making over to the E.B. Railway had been specifically given, in the written Statement. There was no direct attempt to repudiate the truth of these statements, though the plaintiff at the last hour made an attempt,, through P.W. 1, to suggest that the loss occurred after the articles reached Gauhati,--which story has not been accepted as correct.

We do not find much force in the argument of the learned Advocate General to the effect that the defendant should have been made liable as a bailee, as urged by him. The liability as a bailee would have surely accrued if it were established that the articles were lost when under the control of any of the Union Railways, which is not found to be a fact.

Surely it would have been better if the Railway Authorities would have come with the books in their possession to show the actual transfer of the articles to the Pakistan Railway, but even in its absence, from the evidence as tendered, we must accept the position that the articles were delivered to the Pakistan Railway as a matter of fact, and it had failed to deliver the articles to the Assam Railway for transit to Gauhati, as deposed to by D.W. 1.

Mr. Medhi has further relied on the decision of the Patna High Court reported in Governor-General of India in Governor-General of India in Council Vs. Sukhdeo Ram Marwari and Another, and submitted before us that the option was with the pi tiff to sue either the consignee Railway or any of the Railway Administrations on whose Railway the loss, injury, destruction or deterioration occurred.

If the plaintiff had succeeded in showing that the loss or destruction had occurred while the articles were passing through the Railway Administration run by the Union of India, as provided u/s 80, Railways Act, then only he would have been entitled to a decree against the Union of India, because of its liability incurred in any of these Railways.

The plaintiff has left out the S.S. Light Railway through whom the articles were consigned, and he has not succeeded in proving that the loss or destruction occurred in any of the Railways run by the Union of India. In these circumstances we must hold that the learned Subordinate Judge was right in rejecting the plaintiff''s claim and in dismissing the suit. Accordingly the appeal is dismissed with costs.

Sarjoo Prosad, C.J.

I agree.