TMI Blog1965 (2) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 12, 1947 and eventually reached Baidyanathdham on December 21, 1947. The respondent who was the consignee presented the railway receipt on the same day for delivery of the consignment. Thereupon the railway delivered 29 bales only to the respondent and the remaining 31 bales were said to be missing and were never delivered. Consequently on August 31. 1948, notice was g:yen under s. 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948. The consignment had been booked under risk note form Z which for all practical purposes is in the same terms as risk note form B. The respondent claimed damages for non- delivery on the ground that the non-delivery was due to the misconduct of the servants of the railway, and the claim was for a sum of ₹ 36,461/12/-. The suit was resisted by the appellant and a number of defences were taken. In the present appeal we are only concerned with two defences. It was first contended that the suit was barred by s. 77 of the Indian Railways Act, No. IX of 1890, (hereinafter referred to as the Act), inasmuch as notice required therein was not given by the respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en there and all arrangements had been completed as to how the goods would be removed from the wagon when the train would leave that station and this could only be done either by or in collusion with the servants of the railway at Mughalsarai. In this view of the matter the High Court allowed the appeal and decreed the suit with costs As the judgment was one of reversal and the amount involved was over rupees twenty thousand, the High Court granted a certificate. and that is how the matter has come up before us. We shall first deal with the-question of the notice. We are in this case concerned with the Act as it -was in 1947 before its amendment by Central Act 56 of 1949 and-Central Act No. 39 of 1961 and all references in this judgment must be read as applying to the Act as it was. in 1947. Now s. 77 inter alia provides that a person shall not be entitled to compensation for the loss, destruction or deterioration of animals or goods delivered to be carried' by railway, unless his claim to compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. We may add that the learned Additional Solicitor General did not challenge this in view of the decision in Jetmull Bhojraj's case(2). This brings us to the second question raised in the appeal. We have already indicated that the High Court held that as the burden of disclosure which was on the railway had not been discharged there vas a breach of one of the terms of the risk note Z and therefore the risk note did not apply at all and the responsibility of the railway had to be assessed under' s. 72 (1) of the Act. This view of the law has-been contested on behalf of the appellant and. it is urged that after the risk note is executed either in form Z or in form B, the responsibility of the railway must. be judged in accordance with the risk note even if there is some breach of the condition as to disclosure. It may be mentioned that risk note form Z and risk note form B are exactly similar in their terms insolar as the responsibility of the. railway is .concerned for. risk note form B applies to individual consignment while form Z is executed by a party who has usually to send goods by railway in large numbers. Risk note form Z is general in its nature and app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm B and form Z have been approved by the Governor-General and where goods are booked under these risk notes the liability is limited in the manner provided thereunder. It is therefore necessary to set out the relevant terms of the risk note, for the decision of this case will turn on the provisions of the risk note itself. The risk note whether it is in form B or form Z provides that where goods are carried at owner's risk on specially reduced rates, the owner agrees or undertakes to hold the railway administration harmless and free from all responsibility for any loss, deterioration or destruction of or damage to all or any of such consignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants . thus risk notes B and Z provide for complete immunity of the railway except upon proof of misconduct. But to this immunity there is a proviso and it is the construction of the proviso that arises in the present appeal. The proviso is in these terms:-- Provided that in the following cases:-- (a) Non-delivery of the whole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, the dispute must be judicially, decided. As to the accuracy or truth of the information given, if the consignor is doubtful or unsatisfied, and considers that these should be established by evidence, their Lordships are of opinion that evidence before a Court of law is contemplated, and that. as was properly done in the present suit, the Railway Administration should submit their evidence first at the trial. At the close of the evidence for the Administration two questions may be said.to arise, which it is important to keep distinct. The first question is not a mere question of.procedure, but iS whether they have discharged their obligation of disclosure,' and, in regard to this, their Lordships are of opinion that the terms of the Risk Note require a step in procedure, which may be said to :be Unfamiliar in the practice of the Court; if the consignor is not satisfied with the' disclosure made their Lordships are clearly of opinion that is for him tO say so, and to call on the Administration to fulfill their obligation .Under the contract, and that the Administration should then have the opportunity to meet the demands of the consignor before their case is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghout before the suit was filed, it cannot be said to have committed breach of this term of the contract. The disclosure envisages a precise statement of how the consignment was dealt with by the railway or its servants. if the disclosure is asked for before the litigation commences and is not given or the disclosure is given but it is not considered to be sufficient by the consignor, the dispute has to be judicially decided and it is for the court then to say if a suit is brought whether there has been Ia breach of this term' of the contract. After this, comes the stage where the consignor or the consignee' being dissatisfied brings a suit for compensation. At that stage evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation to the Consignor or which might have been made in the written statement in reply to the suit. When the railway administration. has given its evidence in proof of the disclosure and the plaintiff is not satisfied with the disclosure made in the evidence, the plaintiff is entitled to ask the court to call upon the railway to fulfil its obligation under the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to complete disclosure by the railway the consignor cannot fall back on the ordinary responsibility of the railway under s. 72 (1) of the Act as if the goods had been carried at railway's risk at ordinary rates, for he has derived the advantage of the goods having been carried at a specially reduced rates. The risk note would in our opinion continue to apply and the court would still have to decide whether misconduct can be fairly inferred from the evidence of the railway, with this difference that where the railway has been in breach of its obligation to make full disclosure misconduct may be more readily inferred and s. 114 of the Indian Evidence Act more readily applied. But we do not think that the conditions in the risk note can be completely ignored simply because there has been a breach of the condition of complete disclosure. The view of the Patna High Court that as soon as there is breach of the condition relating to complete disclosure the risk note can be completely ignored and the responsibility of the railway judged purely on the basis of s. 72 (1) as if the goods were carried at the ordinary rates on railway's risk cannot therefore be accepted as correct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. But where there is a breach by the railway of the obligation to make full disclosure the court may more readily infer misconduct on the part of the railway or its servants or more readily presume under s. 114 (g) of the Evidence Act against the railway. This in our opinion is the effect of the decision of the Privy Council in Surat Cotton Spinning and Weaving 'Mills Limited's case([1937] L.R. 64 I.A. 176). As we have already said we are in respectful agreement with the law as laid down there. So far as the present appeal is concerned, there was no de- by the consignor for disclosure before the suit. Even after the suit was filed there was no statement by the respondent at any stage that the disclosure made by the appellant in the evidence was in any way inadequate. The respondent never told the court after the evidence of the railway was over that he was not satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the respondent wanted. In these circumstances it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure. In the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he place from where the train started was well lighted and watch and ward staff also patrolled the area. He also stated that the rivets and seals of all the wagons in the train were checked at Mughal sarai and there was apparently nothing wrong with them. Now if the evidence of the guard is believed it would show that the wagon containing the consignment was intact at Mughalsarai upto the time 214 goods train including this wagon left Mughalsarai. If so there would be no reason to hold that anything was done to the wagon before the train left Mughalsarai. It may be mentioned that the trial court accepted the evidence of the guard while the High Court was not prepared to believe it. On a careful consideration of the evidence of the guard we see no reason why his evidence should not be believed. It is obviously the duty of the guard to see that the train was all right, when he took charge of it. It appears that in discharge of his duty the guard patrolled the train on both sides and looked at rivets and seals to see that they were intact. It is, however, urged that the guard's evidence does not show that the seals which he found intact were the original seals of Wadibundar and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he request and the railway had failed to produce the evidence of the watch and ward staff it may have been possible to use s. 114 of the Evidence Act and hold that the watch and ward staff having not been produced their evidence, if produced, would have gone against the railway. But in the absence of any demand by the respondent for the production of the watch and ward staff which he could ask for, we see no reason why the statement of the guard to the effect that seals and rivets of the wagon were intact when he left Mughalsarai with the train should not be accepted. In the absence of any demand by the respondent for the production of watch and ward staff his mere suggestion that the railway servants at Mughalsarai might have committed the theft cannot be accepted. There is the further evidence of the guard as to what happened between Mughalsarai and Buxar. It appears between these two stations the train stops only at Dildarnagar. The evidence of the guard however is that the train suddenly stopped between the warner and home signals before it reached Dildarnagar. He therefore got down to find out what the trouble was. He found that the hosepipe between two wagons had got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had the seals of Buxar. On checking the wagon, 27 bales were found intact, covering of one bale was torn and one bale was found loose and slack. This evidence asto what happened between Mughalsarai and Buxar thus makes it probable that there was theft in the running train between Mughalsarai and Buxar and that may account for the loss of part of the consignment. It is however contended on behalf of the respondent that no evidence was produced from Mughalsarai asto what happened while the wagon was in the marshalling yard and that the seal book which is kept at every railway station containing entries of resealing when a wagon is resealed was not produced from Mughalsarai and an adverse inference should be drawn from this non- production. We are however of opinion that the evidence of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was in-tact with the original seals when it left Mughalsarai and there-fore it is not possible to draw any adverse inference from the non-production of the watch and ward staff or the seal book of Mughalsarai in the circumstances of this case. It would have been a di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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