Union of India v. Brijlal Purushottamdas

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1145 and 1146 of 1965. Appeals from the judgment and decree dated May 9, 1960 of the Calcutta High Court in Appeals from Original Decrees Nos. 267 and 268 of 1954. V. A. Seyid Muhammad and S. P. Nayar, for the appellant (in both the appeals). Sar/oo Prasad and B. Parthasarathy, for the respondent (in botl1 the appeals), The Judgment of the Court was delivered by Bachawat, J. On March 28, 1951 the respondent consigned 10 bales of staple fibre yarn to the Southern Railway at Pudukad for carriage to Shalimar on the Bengal Nagpur Railway at the owner's risk rate. Of the 10 bales consigned only 5 bales were delivered to the respondent. The respondent filed Suit No. 7 of 1952 against the Union of India representing the two railway administrations claiming damages for non-delivery of 5 bales.

On March 28, 1951 the respondent consigned 10 bales of staple fibre yarn to Podnur on the Southern Railway for carriage to Shalimar on the Bengal Nagpur Railway at the owner's risk rate. Of the 0 l 0 bales consigned, only 1 bale was delivered to the respondent. The respondent filed Suit No. 6 of 1952 against the Union of • 912 India, representing the two railway administrations claiming nondelivery of 9 bales. The two courts concurrcntlv held that the loss was due to negligence or misconduct of the -servants of the H ;ngal Nagpur Railway administration. The Trial Court held t.iat the notices under SC<.:. 77 of the Indian Railways Act, 1890 and sec. 80 of the Code of Civil Procedure were not duly served and dismissed the suits. The plaintiff filed two appeals. Defore the High Court the Union of India conceded that the notices were duly served on the General :'\lanager, Southern Railway and the plaintiff elected to ask for a decree against the Southern Raiiwa>, only.

The High Court held that the Southern Railway to which the goods were delivered by the consignor was liable to pay compensation for the loss, though th~ loss was due to the negligence o~ misconduct of the Bengal Nagpur Railway. Tl1e High Court allowed the appeals and decreed the suits. The present appeals have been liled on certificates granted by the High Court. Two questions have been canvassed in the;c appeals. Firstly. it is argued that the misconduct or negligence of the servants of ihe lkugal Nagpur Railway administration cannot fairly be inforreJ from the matcriars on the record. Secondly. it is argued that the Southern Railway administration cannot be held respo~­ siblc for tire misconduct or negligence of the servants of the llen;;al :\"agpur Railway administration. The case is governed by the Indian Railways Act, as it stoot\ in l 951. The goods were carried at owner's risk rate, and sections 74C(3J and 740 of the Act were attracted.

Section 74C ( 3) provides that in such a case the Railwav Administration was not responsible for any loss, destruction. deierioration or damage to the g:iods from any cause whatsoever "except upon proof thnt such loss, destruction. deterioration or damage was due to negligence or misconduct on the part of the Railway Administration or any of its servants." As the explanation of the loss is wnhin the exclusive knowledge of the railwav administration it is almost impossible !or the consignor to discliarge this burden of pr_oof. Section 740 lid1tens this burden and imposes upon the adm1ni>- tration m some cases the duty of disclosing to the consignor how the con,;ignment or the package was dealt with throughout the time it was in its possession or control. If the negligence or misconduct can fairly be inferred uJJOn such disclosu'e the burden of proof under sec. 74C(3) is discharged.

Section 740 is as follows ·-- ··:-<otwithstanding anything contained in section 7~C- ( a) where the whole of a consignment of goods or the whole 0'. any package forming part of a consignment carried ·,rt owner's risk rate is not delivered to the UNION V. BRIJLAL (Bachawat, .I.) consignee and such non-delivery is not proved b:I'. the railway administration to have been due to any accident to the train or to fire, or (b) where, in respect of any consignment of goods or of any package which had been. so covered or protected that the covering or protecuon was not re.adily removable by hand, it is point~ ont to the rrulway administration on or before delivery that any part of such consignment or package had been pilfered in transit, the railway ad~inistration shall be bound to disclose to the consignor how the consigrnnent or package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or of any of its servants cannot be fairly be inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor."

Section 74D envisages a disclosure in the form of a precise statement of how the consignment was dealt with by the administration followed by evidence at the trial in proof of the statement The section clearly contemplates that on this matter the administration should submit its evidence first at the trial, and it is only when negligence or misconduct cannot fairly be inferred from such evidence that the burden of proving the negligence or misconduct shifts to the consignor. In Surat Cotton Spinning & Weavin~ Mills Ltd. v. Secrelary of State for fndia(') and Union oj India v. Mahadeola/(2) the Risk Note B and Z under consideration provided that in certain cases "the railway administration shall be bound to disclose to the consignor how the consignment was dealt ·with throughout the time it was in its possession or control and if necessary to give evidence thereof before the consignor is called upon to prove misconduct."

Section 74D does not expressly provide that the administration is bound if necessary to lead evidence as to how it dealt with the consignment before the consignor is called upan to prove misconduct or negligence but we think that this obliglltion is implicit in the duty of disclosure imposed by the section. If the written statement filed by the administration discloses facts which show that in the common course of events the loss would not have happened if proper care had been taken, a presumption of negligence is raised and it is for the administration to rebut it by contrary evidence. In the absence of such evidence the court may draw the inference that the loss was caused by the 1'egligence of the administration. (i)L.R. 64 l.A. 176. (2) (1965] 3 S.C.R. 145. SCPREME COURT R,EPORTS [ 1969] I S.CR. In the present case 14 packages were not delivered to the respondent and such non-delivery was not due to any accident to the train or to fire. The case therefore fell within cl.

(a) of se<:. 740. The packages were carried by the Southern Raiiway and the Hengal Nagpur Railway administrations and the two administrations became bound to disclose to the respondent how the packages were dealt with throughout the time they were in their possession or control. The Union of India representing both the achninistrations filed separate \vrittcn state1ncnts in the two suits. It made a fuller and more detailed disclosure in the written statement filed in Suit :"io. 6 of I 952. The written statement did not mention any transhipment at Raipuram (Madras) but at the tri~l it was proved that the consignments were transhipped at Raipuram in wagon 1'o. 37933. The wagon was carried upto Waltair where the Southern Railways ended. Thereafter the wagon was carried over the Bengal J\'agpur Railways. In the written statement in Suit 1'o. 6 of J 952 the Union or India pleaded that the consignments were correctly received at Vizianagram whence they went loaded in \\agon No. 37933 in sound condition.

The train was last checked at Danton and all seais were found intact. The wagon in due course reached Contai Road where the train was· detained for 22 minutes and the guard kept a proper watch on both sides of the train. After starting from Contai Road the guard noticed some bales lying on the left side of the track between Contai Road and Bakhrabad. He stopped the train at Bakhrabad. the next station. When the train stopped he saw 4 men running away on the left side with torch lights. On checking he found the door of wagon No. 5330·~ open. After all necessary steps regarding this wagon were taken. tbe train started. As the staff at Bakhrabad station was short, no arrangement could be made for picking up the bales lying near the railway track. On arrival at Kharagpur he found the cloor of wagon No. 37933 open and the sea[ card hanging on the rin~. Tiie wagon was checked and the suit packages were found missing.

The defective condition of its seal escaped the notice of the ~uard earlier. Presumably wagon No. 37933 was interfered with between Contai Road and Bakhrahad and the hales lying ''Y the side of the track were dropped from this wagon. Three b<1les were recovered but the party refused to take delivery. The Joss of the bales was due to theft in transit when the train was on the run between Contai Road and Bakhrabad. It is surprising that after having made ~his disclosure tile_ appellant dicl not call the guard or any other Witness from Contat Road or Bakhrabad. The "uard was present in court at the hearing of the case. At the close of the e\~dencc an application for adiourrunent was moved by the appellant stating that the rougr1 journal book of the guard was mislaid and some. time was neces- UNION v. BRIJLAL (Bachawat, I.) 915. sary to trace it. The adjournment was granted.

On the adjourn-. ed date the guard was not examined nor was the book produced and no explanation was given for this omission. Having regard to the disclosure made in the written statement, it was for the appellant to prove that it had kept proper watch over the wagon while the train was detained at Contai Road and had taken proper care of the package lying on the track. Three packages werelater recovered but no evidence was Jed to prove that they were offered to the respondent. The appellant called witnesses from . Raipuram, Bhadrak and Kharagpur. The witness from Raipuram tound wagon No. 37933 to be in good condition. No witness from Vizianagram was called. The witness from Bhadrak check•. ed the wagon and found the seal intact. The written &tatement shows that the seal was checked at Danton. Danton is about 126 kilo-metres away from Bhadrak. No witness was called to. prove that the seal was found intact at Danton.

The witnesses . from Kharagpur found that the wagon was without seal and rivet on one side. Had the wagon been properly fastened and secured' 1t is not likely that the packages would be so easily taken out at Contai Road. From the disclosure made by the appellant, the· negligence of the servants of the Bengal Nagpur Railway administiation may fairly be inferred. The administration was negligent : (1) in not properly riveting the wagon; (ii) in not keep_ing watch ever the train at Contai Road; (iii) in not taking proper care of the packages lying on the track between Contai Road and Bakhra-. bad and (iv) in not delivering the packages subsequently recovered• by it to the consignor. The next question is whether the respondent can claim com-- pe~sation for the loss under ~- 80 from ~he Southern Railway to,. "h1ch the packages were dehvered by him.

Section 80 is as, foliows :- "Notwithstanding anything in any agreement purporting to limit the liability of a railway administration with· respect to traffic while on the railway of another administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss destruction or deterioration of animals or goods where the· passenger was or the animals or goods were booked through over the railways of two or more railway admimstrations, may be brought either against the railway administration from which the passenger obtained his pass or purchased his ticket, or to which the animals or goods were delivered by the consignor thereof, as the.- case may be or against the railway administration on •whose railway the loss, injury, destruction or deterioration occurred." '916 SCPREME COURT REPORTS [l 969)

J S.C.R. '"i'he section provides that in the case of goods booked through over the railway of two or more railway adrninistratiom. a suit for compensation for loss of the goods can be hrought ai!ainst the .admm1stration to which the goods were delivered by the c<lnsignor irrespective of the question whether or not the goods were lose on ib railway. The suit can be brought against ti1e oth~r administrations only if the loss occurred on their railways. The liabiiity under sec. 80 is statutory. The section overrides all agreements purporting to limit the liability of an administration with respect to through booked traffic. Thc;c was never any doubt that the railway company which 'contracted to carry goods partly over its own railway and partly over tile railways of other carriers was responsible for th~ goods for the whole journey unless it limited its liability by agreement. (see M uscliamp v. Lancaster f,'tc., Junction Rly. Co.) ( ').

The -only doubt was about the responsibility of the other companies over whose railway the goods were carried. Before sec. 80 wa' .enacted there was elaborate case law on the question whether they could be held liable in tort or by recour.se to the doctrine of agency or partnership. Section 80 now places the liability of all the railway administrations concerned on a firm statut 'r:r footing. In Secretary of State & Ors. v. Af::.al Husain('), Lindsay J.C. held that the G.l.P. Rly. to which the goods haJ been deliverea !or carriage to a station on the 0 & R. Rly. was not Iiahl~ for ioss occurring on the 0 & R. Rly. due to the negligence of the latter railway. In D. H. Rly Co. v. Jetmull Jihojraj(") the C~Iculta High Court held that the G.l.P. Rly, to which the goods had been delivered for carriage to a station on the Darjeeling Himalayan Rly. was not responsible for the loss occunin~ on the Jailer 1"1ilway.

It may be mentioned that the actual dccis'on in the Calcutta case was reversed by this Court on another p,iint in .Tctm11/l lJhojraj v. /Jariceli1'g 1-lima/ayan l?ly. Co. Ltd('). We thini( that the Oudh and the Calcutta cases were not co"cctly dedcled. They ignore the clear wording of sec. 80. If ;t was the intention of the legislature to give a right of suit oniy a~ai11st .the auministration on whose line the loss occurred it woulc! have <;aid so. The section gives a right of suit against the administration to which the goods are delivered by the consignor and it matters not that the loss occurred while the goods were being carrie<i bv another administration and was due to the negligence of the latter. Jn Bengal & N. W. Rly Co. v. Haji Mutsaddi Anr.(') the Allahabad High Court rightly held that the B. & N.W. Ratlway to which the goods were delivered for carriage to a (t) 8 ~ & W. 421-151 E.R. llOJ. (2) A.l.R.19200udh0 70 . . (J) A.t.R. 1956 C:11. 390. (4) [1961] I S.C.R. SJ2, (5)

7 J.C. 160. UNION v. BRIJLAL (Bachawat, /.) station on the E. I. Railway was liable to ·pay compensation for the loss, though the loss occurred on the latter Railway. The appellant argued that under sec. 74E the respondent 1Hmst be deemed to have contracted with the Bengal Nagpur "kailway only for the carriage of the goods over that railway's line and that he had no remedy against the Southern Railway. The contention is based upon a misreading of sec. 74E.

The material part of that section rll[ns as follows :- "When any animals or goods tendered to a railway administration for carriage by railway have been booked through over the railways of two or more railway administrations or over one or more railway administrations and one or more transport systems not belonging to any railway administration, the person tendering the animais or goods to the railway administration shall be deemed to have contracted with each one of the railway administrations or the owners of the transport systems concerned, as the case may be, that the provisions of secs. 73, 74A, 74B, 74C, 74D and 75 shall apply, so far as may be, in relation to the carriage of such animals or goods in the same manner and to the same extent as they would have applied if the animals or goods had been carried over only one railway administration." It is to be observed that sec. 72 defines the general responsibility of a railway administration as a carrier of goods.

Sections 73, 74A, 74B, 74C, 74D and 75 contain special provisions limiting the general responsibility as defined in sec. 72. The effect of s. 74E is that in the case of goods booked through over the railways of two or more administrations the consignor is deemed to have contracted with each one of them, that those special provisions shall apply, so far as may be, in relation to the carriage of goods in the same manner and to the same extent as they would have applied if the goods had been carried over only one administration. In the present case, the goods were carried at owner's risk rate over the railways of two administrations and having regard to s. 74E, the provisions of .secs. 74C(3) and sec. 740 apply to each administration as if the goods were carried over only one administration. In view of secs. 74C(3) and 740 the consignor cannot recover compensation for loss except upon proof that the loss was due to the negligence or misconduct of an administration.

If loss due to such negligence or misconduct is proved, he may under s. 80 sue the administration to which the goods were delivered by him or the administration on whose r:iil':"~Y the loss occ_ui;red. . Section 7 4E does not enlarge the h:iJ?ihty of the adm1mstrat10n to which the consignor did not dehver the goods and such administration can be sued only if the loss occurred on its railway. Accordingly, in Union of India v. L!Sup.CT/69-12 • 918 Shamsuddin Waizuddin(') the Patna High Court held that where the goods had been delivered to the Mysore railway for carriage to a station on the Eastern Railway, the latter was not made liable by sec. 74E for Joss occurring on other railways. Thi; decision was followed in Chandrasekharam v. Union of India('). 1 Likewise s. 74E does not restrict the liability imposed by s. 80 on ' the administration to which the goods were delivered by the con - signor. That administration is liable to be sued under sec.

80 for the loss whether or not the loss occurred on the railway of another administration. It follows that the High Court rightly dccrocd the suit<. In the result, the appeals are dismissed with costs. G.C. Appeals dismissed. (I) A.1.R. !%8 p.,,_ <7<. (2) A.LR. 1960 Orissa. 100.