Tejendra Lal Das vs Union of India (UOI)

Bose, J.—This a suit by the endorsee of a railway receipt for compensation for non-delivery of goods. On 8th February, 1948, one M.K. Rahaman consigned under Risk Note (A) 1,302 pieces of old motor parts to be carried from Dohazari Station which was on the line of the then East Bengal Railway in Pakistan, to Ballygunge Station which was on the East Indian Railway owned by the then Dominion of India, and the East Bengal Railway issued a railway receipt in favour of the said M.K. Rahaman in respect of the said consignment. It is alleged in the plaint that the said railway receipt was endorsed for valuable consideration in favour of the Plaintiff in Calcutta by the said M.K. Rahaman who had consigned the goods to "Self". After such endorsement the Plaintiff demanded delivery of the goods from the East Indian Railway but the latter failed and neglected to deliver any part of the goods. It is alleged that this non-delivery was due to the negligence and/or misconduct on the part of the railway administration and its servants but the Plaintiff is unable to give particulars of such negligence or misconduct until full disclosure was made by the railway administration as to how the consignment was dealt with throughout. On 10th June, 1948, the Plaintiff preferred a claim in writing to the East Indian Railway administration and on the 20th January, 1949, notice u/s 80 of the CPC was given to the General Manager of the said Railway at its Head Office in Calcutta. The Plaintiff claims Rs. 4,430-8 being the price of the said 1,302 pieces of goods as damages suffered by the Plaintiff by reason of the nondelivery.

In the written statement filed by the Defendant it is admitted that the consignment was booked at Dohazari Station for carriage over the East Bengal Railway and the East Indian Railway to Ballygunge Station but it is stated that the East Bengal Railway was owned by the Dominion of Pakistan and the East Indian Railway was owned by the Dominion of India. It is further alleged that the consignment was booked subject to the terms and conditions of risk notes ''A'' and ''B'' which were executed in respect of such consignment. It is further stated in the written statement that the consignment was not made over by the Eastern Bengal Railway to the East Indian Railway administration nor did the loss occur on the Railway of the Defendant. The allegation of negligence and misconduct is denied and the validity and sufficiency of the notices u/s 77 of the Railway Act and Section 80 of the CPC is disputed. It is further denied that any part of the cause of action arose within the jurisdiction of this Court or that this Court has jurisdiction to entertain the suit. It is also denied that he Plaintiff has suffered any damage for which the Defendant is liable, and in the alternative it is pleaded that the claim for damages is in any event inflated and is too remote. Certain other defences have also been taken in the written statement but it is not necessary to set them out here.

The following issues were raised at the hearing:

Did the consignment consist of 1,302 old motor parts as alleged ?

Was the railway receipt duly endorsed in favour of the Plaintiff for valuable consideration? If so, did it take place at Calcutta within the said jurisdiction?

Was the consignment or any portion thereof made over by the East Bengal Railway (Pakistan) to the East Indian Railway?

If the said consignment or any portion thereof was made over to the Defendant''s railway administration; did the latter take reasonable and proper care of the said goods or was the said railway administration guilty of negligence or misconduct?

Were there notices u/s 77 of the Indian Railways Act or u/s 80 of the Code of Civil Procedure? Were the alleged notices valid or sufficient or served upon the appropriate authority or served in manner required by law?

Does the plaint disclose any cause of action against the Defendant?

Has this Hon''ble Court jurisdiction to try and entertain this suit ?

To what relief, if any, is the Plaintiff entitled? Parties have adduced oral and documentary evidence.

The Plaintiff has deposed before this Court. He has stated that he purchased the railway receipt covering the consignment in suit from M.K. Rahaman on the 14th February, 1948, and paid Rahaman Rs. 4,430-8 for the price of the goods. Although this large sura is alleged to have been paid in cash, no receipt or book of account is produced to corroborate this payment. In course of cross-examination the witness has stated that it was one Ram Bachan Pandey who had advanced the money and had agreed to buy certain goods out of the said consignment. This Pandey has not however been called although he lives in Calcutta. Rahaman also has not been called, but it is possible that as he has ceased to have any interest in the goods after he sold them, and he lives in Pakistan, the Plaintiff has not taken steps to procure his attendance. But it appears to me that the Plaintiff did not pay the entire sum of Rs. 4,430-8 and that is why he has deliberately refrained from taking steps to procure the attendance of Pandey and has not produced any book of account or document to corroborate the fact of payment of the sum of Rs. 4.430-8. I am however inclined to believe that the Plaintiff has paid some consideration for the endorsement of the railway receipt in his favour. Neither Rahaman nor anybody else has come forward to claim the goods covered by the consignment and so it is likely that the interest in the goods had been transferred by Rahaman by making the endorsement on the back of the railway receipt as stated by the Plaintiff and as corroborated by the testimony of Amulya Krishna Sen, the employee of M.K. Rahaman. A good deal of cross-examination of this witness has been directed towards establishing the fact that the endorsement in favour of the Plaintiff did not take place on the 14th February, 1948. and it has also been sought to be suggested through the Defendant''s witness, Bankim Chandra De, the inspection clerk of Messrs. Sandersons and Morgans that this endorsement must have been interpolated in the railway receipt after 16th August, 1954, when the Inspection Clerk had inspected this railway receipt and found no such endorsement on the said document. But I am unable to accept this suggestion as correct. The Plaintiff filed this suit on the 8th April, 1949, and a specific case has been made in the plaint to the effect that the railway receipt had been endorsed in favour of the Plaintiff. It is unlikely that such a specific case would be pleaded in the plaint if there was in fact no endorsement on the railway receipt in favour of the Plaintiff. It is also to be noted that annexed to the plaint there is a schedule which contains all the items of goods which are to be found in the list of goods (Ex. B) that has been tendered in evidence. So I am inclined to take the view that the endorsement and the list of goods had come into existence before the filing of the plaint on 8th April, 1949, and they have not been brought into existence after 10th August, 1954, as suggested on behalf of the Defendant. I do not accept the testimony of the Inspection Clerk, Bankim De, that when he inspected on 16th August, 1954, the endorsement in favour of the Plaintiff was not there. The brief of documents prepared by the Plaintiff''s solicitor was sent to the Defendant''s solicitor for comparison on the 13th June, 1957, and the brief was returned after comparison on the 24th June, 1957. At no point of time the solicitors of the Defendant suggested or pointed out to the Plaintiff''s attorney that the endorsement copied in the brief of documents was not correct or that it had been interpolated. This witness Bankim De has produced certain inspection notes which had been made by him and it is suggested that at the top right hand corner of the railway receipt there was an endorsement to the effect "please deliver to Hari Ranjan Sengupta. Sd. M.K. Rahaman" but that portion appears to have been torn out subsequently by somebody. It appears that somebody has purposely torn out the top right hand corner of the railway receipt and it is also clear that there was some writing on this torn portion. Traces of a portion of the writing are still visible, though faintly. So the testimony of Bankim Chandra De that there was an endorsement at the top right hand corner of the railway receipt may be true. The learned Counsel for the Plaintiff on being interrogated by the Court to explain the circumstances under which this portion of the railway receipt came to be torn has expressed his inability to do so. He can''t offer any explanation whatsoever. This fact no doubt raises a good deal of suspicion in my mind but as neither Hari Ranjan Sengupta nor anybody else has come forward to claim these goods, it appears to me that the endorsement at the top right hand corner though made at one time was subsequently cancelled. It is also to be noted that the green ink used in making the endorsement looks quite fresh. Thus although there are these unsatisfactory features about the endorsement I hold that the endorsement was made by M.K. Rahaman and some money was paid to Rahaman by the Plaintiff but not the sum of Rs. 4,430-8 as suggested. I also hold that the endorsement took place and the payment was made at Calcutta within the jurisdiction of this Court. It has been held by J.P. Mitter, J. that an endorsee for value of a railway receipt is entitled to sue, see Hari Mohan Dutt Vs. Dominion of India, . This railway receipt (Ex. A) mentions that the consignment consisted of 1,302 old and unserviceable motor parts. Therefore there cannot be any doubt that the 1,302 pieces of motor parts had been consigned by M.K. Rahaman.

It has been argued by Mr. Mazumdar on behalf of the Defendant that the Plaintiff cannot succeed in this case as there was no privity of contract between the Plaintiff and the Defendant Union and as the Plaintiff has failed to prove that the goods were made over to the East Indian Railway by the East Bengal Railway and the loss occurred when the goods were on the line of the East Indian Railway. I am unable to accept this contention of Mr. Mazumdar. It appears from the railway receipt (Ex. A) that the consignor M.K. Rahaman did not pay the entire freight when he booked and delivered the goods at the Dohazari Station, but some freight was to be paid at the destination station at the time of taking delivery from the East Indian Railway at the Ballygunge Station. So the contract with the East Bengal Railway at Dohazari was one entire contract for carriage of the goods for the whole distance and either the Pakistan railway was acting as the agent of the East Indian Railway in making the contract or the Pakistan railway administration acted as agent for the consignor in making the contract with East Indian Railway for carriage of the goods to the Ballygunge Station. It is reasonable to presume in the circumstances of this case that under an arrangement between the East Bengal Railway and the East Indian Railway, one railway acted as agent in entering into the contract of carriage and so the act of the one is binding on the other, see Chattumull v. Union of India (1954) 59 C.W.N. 504. I have dealt with this point in greater detail in my judgment delivered yesterday in Suit No. 1192 of 1949 between the same parties.

Now it is conceded by both parties that as two independent railways belonging to two different Governments are concerned, Section 80 of the Railway Act has no application. So the liability of the railway administration will be that of a bailee and the contract of carriage was a contract of bailment. The law is clear that when goods have not been delivered at the place of destination, the Plaintiff need not prove how the loss occurred, but the onus is upon the bailee to prove the circumstances which exonerate him from liability for loss, Surendra v. Secretary of State (1916) 21 C.W.N. 1125.

It is for the Defendant to place all the materials before the Court and if the Defendant fails to do so the Plaintiff may ask the Court to presume that if produced, the materials would have gone against the Defendant. The witness who has deposed on behalf of the Defendant in this case has stated that it is usual to maintain Transhipment Register at the junction or border station wherein consignments taken over by one railway from another in case of through booked traffic are entered, though he cannot say whether at the border station Banpur any such register was kept or not. No such register has been placed before the Court, nor any witness from the junction station is called to prove that the goods were not received by the East Indian Railway. Mr. Mazumdar has argued that the production of the register if it was in existence would have shown only the negative-that is, absence of any entry and so no useful purpose would be served by producing the register if there was any. I do not think that this is the proper-view of the matter. The railway is under an obligation to satisfy the Court upon production of all relevant materials that the goods did not reach their hands at all and so they cannot be made liable, see Gadodia v. G.I.P. Rly. (1024) ILR 46 All. 161. The facts as to how the consignment was dealt with during transit are facts within the special knowledge of the railway administration and the railway is under a duty to disclose these facts (Section 106 of the Evidence Act). The fact that the goods were admittedly placed in charge of the railway and have not been returned, raises the presumption of negligence and it is for the railway to rebut the presumption.

It has next been argued by Mr. Mazumdar that the service of notice u/s 77 of the Railway Act has not been proved. But the Plaintiff has sworn that the notice was duly sent by his, pleader and the pleader made over to him the acknowledgment receipt which came back with the stamp of the East Indian Railway. This receipt and a copy of the letter, dated 10th June, 1948, have been tendered in evidence and are collectively marked as Ex. C. The acknowledgment shows that the letter was despatched on the 12th June, 1948, and was received on or about the 18th June, 1948. I hold that notice u/s 77 was duly served.

It was next argued that the notice u/s 80 of the CPC was not properly addressed nor does it sufficiently state the cause of action as pleaded in the plaint. It is pointed out that the notice is addressed to and served on the Governor General instead of it being addressed to and served on the General Manager as required by law. But it is to be noted that the notice is addressed to the Governor-General through the General Manager, and it appears from the correspondence, dated 19th February, 1949, and 8th March, 1949, that the notice, dated 20th January, 1949, was understood as having been addressed to the General Manager. At any rate the letter of the 20th January, 1949, was brought to the notice of and received by the Office of the General Manager. So the manner of addressing the notice does not invalidate the notice, and it is clear that the General Manager had duly received the notice.

It was further submitted that in the notice u/s 80 it is not stated that the endorsement of the railway receipt in favour of the Plaintiff was for valuable consideration and the allegation of misconduct and negligence is also absent from such notice. But in a suit for non-delivery of goods where the railway is a mere bailee and the contract of carriage is not subject to risk notes in form ''B'' or similar risk notes, it is not necessary to plead misconduct or negligence on the part of the railway administration or its servants. Moreover it has been repeatedly held by this Court and other Courts that substantial compliance with the requirements of Section 80 is enough. It is not necessary that the notice u/s 80 should be a verbatim copy of the plaint. If the notice gives the Central Government a correct idea as to the claim of the Plaintiff the requirements of the statute have been complied with. The notice therefore cannot be said to be an invalid notice.

It was also argued that this Court has no jurisdiction to entertain the suit as the entire cause of action arose outside jurisdiction. But as I have held that the endorsement of the railway receipt was within jurisdiction and in view of the fact that the notice u/s 80 of the Code was served within jurisdiction, a part of the cause of action must be held to have arisen within jurisdiction and as leave under Clause 12 of the Letters Patent has been obtained, this Court has jurisdiction to entertain the suit, see Raj Kumar Shaw Vs. Dominion of India, and other cases following it.

The further point taken by Mr. Mazumdar is that the extent of the claim as laid in the plaint has not been duly and satisfactorily proved. It is only the list of goods with prices set out against the items, that has been tendered in evidence, and the Plaintiff has stated that these are the value of the goods. No evidence of market rate has been given. The railway receipt or the invoice does not contain any description of the goods or their value.

In Dukhi Ram Barai Vs. B.N.W. Railway, it has been held that in a suit for damages against a railway company an invoice sent to the claimant by the consignor showing the value of the goods is prima facie evidence of what the claimant was charged for them. But in the case before me there is no such invoice, showing the value. There is no reliable corroborative evidence as to the market rate of the goods. I am not satisfied on the evidence as to the true value" of the goods. The Plaintiff has paid much less than Rs. 4,430-8 and that is why he has not called Pandey or Rahaman nor has he produced any book of account or document. In my view a sum of Rs. 1,500 is a reasonable sum which should be awarded as compensation to the Plaintiff. As a heavy cloud of suspicion has been raised by tampering with the railway receipt, and the genuineness of the endorsement is not free from doubt and the Plaintiff came forward with an inflated claim, the Plaintiff will get one-third of the taxed costs of this suit, from the Defendant.

There will therefore be a decree for Rs. 1,500 in favour of the Plaintiff with interest on decree at 6 per cent. The Defendant will pay to the Plaintiff one-third of the costs of this suit taxed as of a defended suit. The decree is to be satisfied by the Defendant within three months from date.