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Judgment
Mack, J.—The appellants are the plaintiffs, a firm of oil merchants of Erode, whose suit to recover as damages Rs. 6030 from the Dominion of India owning four railways over which consignments of oil were carried was decreed by the learned Principal Subordinate Judge of Coimbatore to the extent of only Rs. 185 with costs only to this extent. The circumstances are these. Plaintiffs made two consignments of coconut oil in entire unit wagons, one on 9th August 1947 to Patna Ghat Station and the other on 9th September 1947 to Benares. The first consignment racked Patna Ghat on 2nd September 1947 where on open delivery six tins were found missing and 55 tins empty and others badly damaged. Plaintiffs claimed in respect of this consignment a sum of Rs. 5680 being the value of a total loss of 70 maunds 38 seers of oil. As regards this claim, the learned Subordinate Judge found the railway companies liable for the loss of only the sir tins of oil and valuing each tin at Rs. 32-8 0, gave plaintiffs a decree for Rs. 185. In the second consignment to Beares on 9th September 1947, ten tins were found to be completely empty and a claim of Rs. 350 was made. This claim was dismissed.
Both consignments were made under Risk Notes A and B. Risk Note A is necessary when goods are received for dispatch in bad condition and/or liable to damage, leakage or wastage in transit and under it the railway administration is not responsible for any loss, except upon proof that it arose from misconduct on the part of the railway administration''s servants. Risk Form B or as it is called "Owner''s risk" allows a special reduced tariff rate, and throws upon the railway administrations an obligation to disclose to the consignor how the consignment was dealt with throughout the time it was in their possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct, but if misconduct on the part of the railway administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.
These consignments had to be carried over four railways, the South Indian Railway, the Madras and Southern Mahratta Railway, the Bengal Nagpur Railway and the East Indian Railway. The two latter railway companies did not adduce any evidence at all. They examined no witnesses and relied only on the railway seal check books to show that this wagon reached Jalarpet and Arkonam with seals intact, and on Missing Goods Report, Ex. B. 27, from Patna Ghat station signed by the Station Master showing inter alia that the seals on this wagon, P.N.B.E. B/S and B/R whatever this may mean, were intact.
I shall first deal briefly with some legal arguments advanced as regards the two risk notes, Exs. B. 1 and B. 2. It is settled law, and there can be no doubt, that when goods are despatched only under risk note B, the obligation on the railway company under it has to be discharged by disclosing to the consignor how the consignment was dealt with throughout the time it was in its possession or control. The procedure to be adopted in such cases has been laid down by the Privy Council in Surat Cotton Spinning and Weaving Mills Ltd. v. Secretary of State for India ILR 1887 Bom. 376. Where however, both risk notes A and B are executed, it has been held by Govinda Menon, J. in Madras Handloom Weavers Provincial Co-operative Society v. Dominion of India (1958) 1 M.L.J. 258 following the view taken by Meredith, J. in Governor-General in Council Vs. Thakursi Dass, that it is open to the railway administration to take advantage of either risk note, and if under either it can be shown that the railway administration can escape liability, then the suit must be dismissed. With respect I am in complete agreement with this view. So far as damage to these consignments of oil as a result of leakage from tins is concerned, the liability of the railway administration has to be governed by risk note A as the tins were accepted for transport in bad condition and liable to damage, leakage or wastage in transit. Before the plaintiffs can succeed, they must show that the loss arose from misconduct on the part of the railway administrations servants.
As regards the six missing tins from the first consignment the learned Subordinate Judge took the view in paragraph 25 of his judgment that the non-delivery of the six tins was not covered by either risk note Form A or B, risk note A having no application in the case of failure to make delivery. There has been no appeal or cross-objections by the respondents as regards the damages awarded for the loss of these six tins decreed on the basis that 660 tins were in fact received by the railway company at Erode, Nevertheless Sri Ramachandra Aiyar has argued at some length that the loading of these tins into the wagon at Erode was done by the plaintiffs under a special Tariff which made allowance for loading by the sender. He points to one of the invoices of consignment, Ex. B. 8, describing it as liable to leakage and wastage loaded by sender. Plaintiffs admitted having done the loading and one of their partners, P.W. 1, has elaborately described in his evidence how the tins were packed with straw spread on the floor and between each layer of tins and also filled into the inter spaces and how the tins were tied with ropes. He also said that after the tins were loaded, there was no scope for one tin smashing against the other unless some tins were removed, and that the Goods Clerk supervised the loading and saw that the tins were properly loaded and packed. In dealing with the evidence of P. W. 1, the learned Subordinate judge rejected his description of the manner in which the tins were packed, inter alia on the ground that the plaint did not describe the manner in which the loading was done. There was certainly no obligation on the plaintiffs to set out this elaborate description in the plaint which already suffered from prolixity. He also rejected the evidence of P. W. 1 on the ground that this description was not given in the registered notice Ex. A. 11 or in the subsequent notice, Ex. A. 19, and finally on the ground that no reliable or independent evidence was brought to show that straw was spread on the floor of the wagon before the tins were placed upon it. Another coconut oil trader, P.W. 2, bore out the testimony of P.W. 1, as to the manner in which these coconut oil tins were packed. Sri Ramachandra Aiyar is unable to explain why the Goods Clerk at Erode who accepted this consignment was not examined. The railway administration passed a receipt for acceptance of the oil wagon with 660 tins of oil for transhipment. I am prepared to concede the possibility of the consignor somehow contriving to pack six tins less into the wagon or pilferage of six tins in the course of loading by persons whom he engaged for the purpose. The liability of the railway administration however is concluded by their failure to take in the trial Court the position now sought to be established for the first time in appeal, and by their acceptance of 660 tins of coconut oil for transport and delivery. Furthermore, as no appeal has been filed by the railway company as regards the decree for the loss of these six tins , I can only presume an admission on the part of the railway company that it was occasioned by the misconduct of their servants. It is true that learned Sub ordinate Judge has not definitely found any misconduct and has inferred liability on the railway administration merely because they received 660 tins for delivery at Erode and only delivered 654, some in a very damaged condition at Patna Ghat.
Sri Ramachandra Aiyar has next urged that the documents filed by the railway administrations clearly show that the wagon after being sealed at Erode arrived at Patna Ghat with the seals intact and this by itself rules out the possibility of misconduct of railway servants en route. The fact that the railway companies and their servants had control of the wagons, and the seals all through the loading is relied upon by Sri Viswanatha Aiyar for an argument that the tins could only have been abstracted and the seals replaced by misconduct of the railway servants. This position has some support in Governor-General in Council Vs. Visheshwar Lal, .
An interesting and germane decision in relation to the case before me is Governor General in Council v. Jamnadas Agarwal AIR 1948 Pat. 119, in which 650 tins of coconut oil were despatched from Cochin to Jharia, a station on the East Indian Railway, over the same four railway administrations as in the present case. On taking open delivery it was discovered that 54 tins were entirely empty and 146 almost empty. A claim was made for Rs. 3796 as damages. A decree against the railway administrations passed by the Subordinate Judge was confirmed by the District Judge, but reversed in second appeal by a learned Bench of the Patna High Court holding that the plaintiff had failed to prove misconduct on the part of the employees of the railway administrations. In that there were no tins missing. The consignment was also under risk notes A and B. The misconduct attributed to the railway company in that case was negligence in so far as no caution label was found attached to the railway wagon on arrival at Jharia, with the result that there was rough shunting which caused the tin canisters to be broken and damaged. In that case it must be stated that the railway administrations examined witnesses at several stages of the passage of the consignment to show that the wagon was found to be leaking oil and so on. The facts of that case are helpful, in that taken in conjunction with the facts of the present case, they emphasise the defective nature of the tin canisters in which coconut oil is consigned by rail over long distance and their proneness to leakage and damage, it may be without any negligence at all on the part of the railway servants and despite their taking ordinary care.
Had it not been for the six tins found missing in the first consignment on the wagon reaching Patna Ghat. I would have dismissed this appeal, the consignment being governed by risk note A, the packing having been found to be defective, the goods liable to leakage and damage in transit and no other misconduct having been proved as against the servants of the railway administrations. The loss of the six tins, the decree granted by the learned Subordinate Judge and the failure of the railway administrations to file any memorandum or cross-objections against this decree raise however an interesting question for determination. Sri Viswanatha Aiyar has urged that the main reason for the extensive damage done to this consignment of 660 tins was the abstraction of the six tins at some point in transit which led to the tins knocking against each other during the inevitable shunting and this it was which caused all this damage. I am prepared to concede that, as he contends, if this wagon takes 660 tins which fits in exactly without leaving any space into which the tins can be flung about, if some tins were removed, much damage can be caused to the others, the whole balance of the packing having been upset. This is a case in which there has obviously been defective packing and we must take it that the goods as described in the risk note A were liable to damage, leakage and wastage in transit. The extraction of six tins as a result of misconduct by railway servants was, therefore a contributory factor to the resulting damage to these tins already liable to leakage and damage.
The nice point arises as to whether it is in any way possible to estimate the damage to the remaining tins had they not been defectively packed, by reason of the abstraction of six tins. Even if they had been not defectively packed, it is very likely that they would have sustained damage by being displaced and banged about inside this wagon after the abstraction of the six tins. This position of consequential damage to the general consignment of tins as a result of six tins being abstracted has not been considered by the learned Subordinate Judge. I do not think that it is necessary for me to remand this suit filed six years ago in 1948 and disposed of in 1949 for any finding as regards which no evidence is really possible. One thing is perfectly clear, from the damage done to the second consignment in which ten tins were found empty, and also from the facts in Motamal Jethamal Vs. Commissioner of Income Tax, that tin canisters in which coconut oil is consigned over long distances by rail are very prone to damage by leakage during transit. At the same time it is, I think, obvious that the plaintiffs would not have suffered such extensive damage but for the abstraction of the six tins, as a result of, what I can only presume in this appeal, the misconduct of the railway servants. It is difficult to see how the liability of the railway company for loss consequential on the misconduct of its servants can be avoided though by no means easy to estimate such loss on any definite data or evidence. At the best the estimate of such damages in the particular circumstances of this case can only be a rough one. I think it would be equitable to attribute half the damage to the consignment to defective packing and the other half to the abstraction of the six tins as a result of the misconduct of the servants of the railway administration. So far as the first consignment is concerned, the appellants will have a decree, for half the damages they claimed in respect of the 654 tins delivered in damaged or empty condition at Patna Ghat Station, i.e., for Rs. 2,747-8-0.
So far as the second consignment of 660 tins to Benares is concerned, as regards which ten tins arrived completely empty, the plaintiffs are entitled to no damages at all, having failed to prove misconduct on the part of the railway servants. The result is that the plaintiffs will have a decree for Rs. 2,747-8-0 plus Rs. 185 decreed by the lower Court i.e., for Rs. 2,932-8-0 with interest at 6 per cent per annum from the date of the lower Court decree. In the circumstances of this case I direct the appellant to receive costs throughout to the extent to which he has succeeded.