TMI Blog1960 (7) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... 48, and on the same date he also booked 1005, bales of jute each bale weighing 3 1/2 mds., from Forbesganj Railway Station on the same Railway, to Manihari Ghat Railway Station. The plaintiff learnt that the goods consigned from Jogbani were loaded in open trucks covered by the Railway authorities by the corrugated iron-sheets and tarpaulins supplied by him at the request of the Railway employees. The engine of the train was attached immediately in front of the open trucks forming the goods train which started from Jogbani as a special train in charge of a Traffic Railway Inspector. When the special goods train arrived at Forbesganj, the other open trucks containing the bales of jute loaded at that station were also attached to the special train coming from Jogbani and thus the fifteen open trucks coming from Jogbani and the thirteen open trucks attached to the train at Forbesganj formed one special goods train. The train reached safely Katihar Railway Station at 5 a.m. on the morning of 20-4-1948, accompanied by Prem Singh, Ramji Sardar, Manmal and others who were the plaintiffs' employees and accompanied the consignment as directed by the Railway authorities at Jogbani Rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount. 4. The substance of the written statement on behalf of the Railway Administration was that the) consignment in question was really despatched in part from Jogbani and in part from Forbesganj as alleged by the plaintiff but it was false and fraudulent to say that the consignment was loaded in open trucks without the consent of the plaintiff or any agent of his authorised by him. The true position was that the plaintiff personally filed a petition. in writing on 30-3-1948, requesting the Railway authorities to supply a special train of uncovered wagons and the plaintiff himself undertook all the responsibilities and risks involved in the movement of the jute in uncovered wagons. It was on the plaintiff's offer to supply tarpaulins and corrugated iron-sheets to cover the goods that his prayer for loading the jutes in open trucks was accepted by the authorities. The Railway authorities were not willing to allow the use of open trucks for carrying such an inflammable material as jute in the month of April, but the plaintiff undertook to depute his own men to .be in charge of the consignment who would be available to quench the fire which might break out. The Railway a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Are the defendants guilty of gross and wilful negligence, misconduct and recklessness in regard to the consignments in question, and are they liable for it? 9. Were risk notes A and C duly executed? If so, is the plaintiff entitled to any relief? 10. Is the claim of the plaintiff highly inflated? 11. To what relief, if any, is the plaintiff entitled? 8. Before taking up the examination of the evidence led by the parties, both oral and documentary, it is worthwhile mentioning that the following documents were produced on behalf of the defendants in support of their case that the risk notes in form C were executed on behalf of the plaintiff. Exhibit H/1 is risk note C covering 1210 bales of jute loaded at Jogbani. Exhibit H/3 is. another risk note, covering 397 bales and Ex. H/5 is also risk note C covering 608 bales of jute. Thus, the three risk notes cover 2215 bales of jute. Mr. P. R. Das appearing for the respondent, concedes that if the risk notes in question were found to have been duly executed by or on behalf of the plaintiff, the Railway Administration would be completely absolved from liability for the loss of jute an question; but the main argument urged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s application was : It will be better if 15-30 open trucks may be supplied to each of these two stations for loading of jute to pull upon the backward O. D. R. The evidence of S. K. Sen, (D. W. 9) who was A. T. S., Katihar in March-April, 1948, also supports the defence case. He deposed as follows : 3. At the end of March, 1948, Ram Lal came to me in my office in Company of T. Nag. They first saw the clerk D. W. Uperi N. Choudhury, who brought an application to me from Golcha. 4. He further informed me that R. L. Golcha and Nag wanted an interview with me which I permitted. This Ex. B is the application in question. They came and told me that they wanted wagons to clear off their old stock of jute and if possible they wanted a special train. 5. But as covered wagons were not availably I asked them if they were prepared to take open wagons when available. To this they agreed. Exhibit B was handed back to the clerk Choudhury to put up with his report. This Ex. D is the clerk's report and this Erf. D-1 is my order. I read this 'pend' and bears my initial. 6. 'Pend' means pending i.e., orders will be passed later on. I had to consult t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have been mentioned in this document. Exhibit 4 (a) is the notice under Section 80, C. P. C., by Babu Durga Prasad, Advocate, to the General Manager, O. T. Railway. There also no reference whatsoever is made to the fact that risk notes C were not executed by the employees of the plaintiff. This is independent of the fact that reference is made in the railway receipts to risk notes C. Mr. P. R. Das had contended that mere reference to risk notes C in the railway receipts would not necessarily prove the valid execution of the risk notes. The genuineness of the railway receipts, however, cannot be denied and the fact that there is reference to risk notes C in the railway receipts (Exs. F, F/1 and F/2) and these receipts are referred to in the forwarding notes (Exs. G, G/1 and G/2) would also indicate that the risk notes were really executed on behalf of the plaintiff. Mr. P. R. Das, for the respondent, has contended that it has not been established that Sadanand Jha, Prabodh Choudhury or Mahal Chand who purported to sign on behalf of the plaintiff the three documents (Exs. H/l, H/3 and H/5) were the employees of the plaintiff or that they had been authorised by the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Current and Money Market Report regarding current prices of jute in Calcutta and document No. 9 is the copy of receipt granted by Ramlal Golcha to the Free India General Insurance Co., Ltd. Documents Nos. 1 to 4 were duly tendered and rejected. Mr. P. R. Das has not objected to these docu ments being brought on record and accordingly they have been admitted and marked Exs. J, J/1, K, K/l, L, L/l, 8, 9 and M (documents Nos. 1, 2 8, 4, 5, 6, 7, 8, respectively) in this Court. In my opinion, the contents of Exs. J and J/l leave no manner of doubt that risk note C must have been executed on behalf of the consigned (Sic) (Con signor?). The learned Additional Subordinate Judge was entirely in error in adopting the above procedure which caused considerable prejudice to the case of the defence. This view is also in consonance with the decision of this Court in Jamuna Prasad Shah v. Faujdar Shahni, ILR 8 Pat 766; (AIR 1929 Pat 254), and other cases. The application of Ramlal Golcha runs thus : In connection with loading of jute into open trucks for booking to Manihari, I will execute risk Note 'C' for each and every consignment and will secure them properly. This was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., Co. (ILR 46 All 649: AIR 1924 All 692(2)); Ram Das Ram v. Dominion of India AIR 1950 Pat 215, at p. 217; Union of India v. Ganesk Lal AIR 1956 Cal 99 at p. 101; Ebadatt Ali v. Mohammed Fareed 3 Pat LW 229 : (AIR 1916 Pat 206), and Simons v. Great Western Rly., Co.(1857) 140 ER 560; Norton on Deeds, 1906 Edn. p. 36, and some other decisions. In my opinion, however, the above decisions are of no avail to the learned counsel for the respondent inasmuch as the execution of a private document which contains all the terms stands on a different footing from the execution of the risk notes. An ordinary document containing terms binding upon the executant must in the very nature of it contain all the terms whereas in the case of a risk note the terms binding upon the executant are already contained in a printed form. If the executant, therefore, signs the printed form, it is obvious that he undertakes the liability involved in execution of the risk notes which contains the essential conditions. As a matter of fact, the filling up of the other details is a part of the same transaction and if a Railway employee asks the executant to sign the form and, for the convenience of entry of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : AIR 1924 All 692 (2)) the learned Judges were, no doubt, dealing with risk notes and made the observation as against the opinion expressed by the learned District Judge that even a risk note in order to be validly executed must be filled in before it is signed by the sender of the consignment. It was observed that to sign a blank paper on which an agreement is afterwards written is not the same thing as executing an agreement in writing. Neither is it sufficient to sign a printed form in which no details relating to the particular consignment are recorded. Mr. P. R. Das placed strong reliance on this view of the law propounded in this case. In my opinion, however, it is to be noted that the learned Judges dismissed the appeal overruling the contention of the holder of the consignment that the Railway Company was liable, on the ground of estoppel, so that the above observation was not of material importance in the case. Apart from that, it does not appear that the point was argued with sufficient fullness in that case as the appeal could be disposed of against the plaintiff on a different consideration. Norton on Deeds, however, to which reference has been made by Mr. P. R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be regarded as invalid in the eye of law. I am unable, with respect, to agree in the view to the contrary if the learned Judges in the Allahabad case or the Calcutta case laid that down. As I have said, those decisions are distinguishable in terms of clear circumstances in those decisions. Of course, this criticism applies only to Forbes-ganj consignment. Moreover, the learned Advocate-General has contended that in view of the letter on behalf of the plaintiff (Ex. J) and in view of the reply sent by the Assistant Traffic Superintendent (Ex. J/1 of additional evidence) and Exs. B and D to D/2, it is not open to the plaintiff to lead evidence to show that the risk notes form C were not executed. These two documents would operate as estoppel against him inasmuch as if he had not held out an assurance to the Assistant Traffic Superintendent that risk notes would be executed and that he would supply tarpaulins and corrugated iron-sheets and that his men would accompany the consignment, the Assistant Traffic Superintendent would never have agreed to supply open trucks for the carriage of the jute. Mr. P. R. Das has urged that there is no question of estoppel in this matter. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouncil under the Adaptation of . Laws Order dated 18-3-1937, under the Government of India Act, 1935. Clause (b) says that the form must be approved by the Federal Railway Authority or, for the matter of that, after the 11th of February, 1948, when the new Adaptation of Laws Order came into force, the Central Government which took the place of the Federal Authority. Mr. Das has urged that the new Adaptation of Laws Order having coma into force in February, 1948, as mentioned, and the risk notes having been executed in April, 1948, the form to be used should have been approved by the Central Government. He has contended that there should be strict compliance with the requirement of Sub-section (2) of Section 72 of the Indian Railways Act, inasmuch as if there is no strict compliance, Sub-section (1) will come into operation and the liability of the Railway Administration will continue to be that of an ordinary bailee. Learned Advocate-General, however, urged in reply that Ss. 20 and 24 of the : General Clauses Act provides a complete answer to the point raised by Mr. P. R. Das. The sections run thus : 20. Construction of orders etc., issued under enactments. Where, by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lthough the aforesaid Section 20, in my opinion, which refers to the meaning to be attached in the notification, order, etc., which should be same as the meaning attached to that particular expression in the Central Act or Regulation, is not relevant, Section 24, provides a complete answer to the contention raised by Mr. P. R. Das on behalf of the plaintiff-respondent. In my opinion, the further answer to this matter put forward by the learned Advocate General is also correct which is that after the letter of the plaintiff to the Assistant Traffic Superintendent, Katihar, and reply of the latter thereto, in view of exhibits B, D and D/ 1, as mentioned above, it is not open to the plaintiff to urge that the risk notes were not duly executed. Mr. P. R. Das has contended that so far as the form of execution or form of the risk notes C is concerned, there can be no estoppel against the statute. If Section 72 lays down that any form serving as restrictive of the liability as risk notes C or risk notes A not in accordance with Sub-section (2) shall be void for non-fulfilment of the requirement of this sub-section, the plaintiff cannot be estopped from pleading the invalidity of the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , because no distinction has been drawn between ''open wagon and open truck . Thus, although the letter (exhibit B) from the plaintiff contains a request to the Assistant Traffic Superintendent, O. T. Railway, for allotting uncovered wagons, the orders passed by him was for the supply of open trucks. Even the plaintiff's letter to the Free India General Insurance Company (exhibit C), dated 19-4-1948, describes the vehicle used for the carriage of the bales of jute as open trucks in paragraph one and paragraph two is still more clear inasmuch as it describes 13 wagons, open trucks loaded with 1008 jute bales in the same special weighing 31/2 mds, each, costing ₹ 1,06,000/- (Rupees one lac six thousands only) in transit from Forbesgarij to Manihari. It is thus clear that the plaintiff himself did not make any distinction between wagons and open trucks both of which were used as synonymous terms. The contention, therefore, that risk notes C could be used only in open wagons cannot be accepted. In fact, a Division Bench of the Calcutta High Court in the case of Ralliaram Dingra v. Governor-General of India in Council AIR 1946 Cal 249 has held that risk note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught fire; the Railway guard also did not do anything active in organising the villagers for extinguishing the fire and the relief train also was not sent from Katihar immediately with necessary appliance for extinguishing the fire and for minimising the loss caused to the plaintiff. He has referred in this connection to the evidence of the plaintiff's manager (P.W. 11) who stated that while the fire was burning nothing was done by the guard or any other Railway servant to fight it. Mr. P. R. Das also contended that the report of the enquiry held by the Railway Administration leading to the dismissal of the driver also should have been brought on the record to show that the Railway servants were guilty of gross misconduct. Much argument was advanced in the Court below as to whether the report of this enquiry was a privileged document. Mr. Das has contended that the enquiry report was not a privileged document within the ambit of the Indian Evidence Act and the failure to produce that document before the Court in spite of a request made on behalf of the plaintiff should lead to the conclusion of gross misconduct. Learned Advocate General has contended that it was a privile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the jute in the truck. In my opinion, therefore, there is no substance in the argument advanced by Mr. P. R. Das that there was negligence or misconduct on the part of the servants of the Railway Administration so as to make the latter liable for the loss Caused to the plaintiff. It may, however, be stated here that the discussion of the point relating to misconduct in the judgment of the Court below, and as urged by the learned counsel for the respondent in this Court, would be superfluous if risk note C mentioned above are found to have been validly executed. It is true no doubt that in case of risk note B there is a stipulation that the Railway Administration would be liable to make good the loss to the customer in spite of the execution of risk note B if the loss has been caused to the latter on account of the misconduct of the Railway Administration or its employees, but the exemption granted to the Railway Administration from any liability for the destruction, deterioration and damage to goods when risk note C is executed is absolute and no question relating to the misconduct of the Railway employees can at all be relevant in such a case. The decision cited supra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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