Patna High Court
Surajmal Kedia vs The Union Of India (Uoi) on 8 May, 1952
Equivalent citations: AIR1952PAT435, AIR 1952 PATNA 435
JUDGMENT Rai, J.
1. This appeal by the plaintiff is directed against the judgment and decree of the District Judge, Santhal Parganas, Dumka, modifying those of the Subordinate Judge, Deoghar.
2. The plaintiff instituted Money Suit No. 13 of 1947 in the court of the Subordinate Judge, Deoghar, against the defendant-respondent for realisation of Rs. 4,522/8/- representing the price of ten bales of cotton yarn along with the approximate profit and the railway freight.
3. The case of the plaintiff was that Messrs, Lachminarain Gouri Shankar of Gaya tendered to the Bengal Nagpur Railway at station Nagpur a consignment of 40 bales of cotton yarn for carriage to Baidyanath Dham Railway Station. The railway receipt was duly endorsed in favour of the plaintiff. On presentation of the railway receipt at B_aidyanath Dham Railway Station, the East Indian Railway Company delivered to the plaintiff only 24 bales of cotton yarn on the 14th of June 1946 and another six bales of cotton yarn on the 17th of June 1946, but the remaining ten bales out of the consignment were not delivered to him. After waiting for a sufficiently long time, the plaintiff, through his pleader, complained to the Chief Commercial Manager (Claims), East Indian Railways, who in his letter dated the 10th of September 1946 informed him that the matter was under inquiry. As the railway company failed to deliver the remaining ten bales of yarn, the plaintiff filed the present suit on the 2nd of June 1947.
4. The suit was contested by the defendant who pleaded, inter alia, that the Railway Administration was not liable for the loss of a part of the consignment except on the proof of misconduct on the part of its servants.
5. The suit was ultimately decreed by the trial court. It came to the conclusion that the required notices had been properly served on the defendant. It also held that the misconduct of the Railway Administration's servants had been fully established on the evidence on record.
6. The defendant thereafter went in appeal which was allowed in part. The appellate Court held that the misconduct of the railway administration or its servants had not been established by the evidence led on behalf of the plaintiff. The plaintiff was, therefore held entitled to a decree for the proportionate price of one bale of yarn plus the proportionate profit and the proportionate railway freight paid for the same, but he was held not entitled to any damages for the loss of the remaining nine bales. The plaintiff has thereafter filed the above mentioned second appeal in this Court.
7. Learned Counsel for the appellant contended that the railway administration has failed to disclose how the consignment was dealt with by it throughout its transit. According to him, the evidence of D. W. 1, who worked as guard of the goods train by which the wagon in question was carried from Anara to Asansol, did not furnish a disclosure regarding the entire route of the transit. He submitted that the defendant should have also given evidence as to what was the condition of the wagon at each and every station the goods train halted from Nagpur to Baidyanath Dham. In my opinion, on the terms of Risk Note B it was not necessary for the defendant to give evidence in respect of that part of the journey, which was uneventful unless the plaintiff wanted the railway administration to give evidence regarding a particular part of the journey. I am supported in this view by the decisions in the cases of 'SECY. OF STATE v. SHIB DAYAL MURLI RAM'. AIR 1.929 Lah 887 and 'DELHI SWADESHI CO-OPERATIVE STORES CO. LTD. v. B.B. and C.I. RLY. CO.', AIR 1930 Lah 557. Learned Counsel for the appellant has not pointed out anything from which it could be gathered that the plaintiff has asked the defendant about any other portion of the journey. In my opinion, there is not much force in this contention of the learned Counsel for the appellant.
8. Before I deal with the next point raised by Mr. Lalnarain Sinha. I would better give the relevant portion of Risk Note which runs thus: "I/We, the undersigned, do, in consideration of such lower charge, agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, the said consignment from any cause whatever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct of the Rly. Administration's servants; provided that in the following cases: (a) Non-delivery of the whole of the said consignment or of the whole of one or more packages forming part of the said consignment packed in accordance with the instructions laid down in the Tariff or, where there are no such instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such non-delivery is not due to accidents to trains or to fire: (b) Pilferage from a package or packages forming part of the said consignment properly packed as in (a), when such pilferage is pointed out to the servants of the Railway Administration on or before delivery: 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. 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." Mr. Lal Narain Sinha next contended that the Rly. Administration had failed to disclose anything about the alleged theft of the 9 bales in its correspondence (Exts. 4 and 4a), and on its failure to do so the suit should have been decreed. In this connection he relied upon the decision of their Lordships of the Judicial Committee in the case of 'SURAT COTTON SPINNING & WEAVING MILLS. LTD. v. SECY. OF STATE', 64 Ind App 176: AIR 1937 PC 152. While dealing with this point, Lord Thankerton who delivered the judgment of their Lordships observed as follows:
"The first portion of the proviso provides that 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'.
In their Lordships' opinion, this obligation arises at once upon the occurrence of either of cases (a) or (b) and is not confined to the stage of litigation. Clearly one object of the provision is to obviate, if possible, the necessity for litigation. On the other hand, the closing words of the obligation clearly apply to the litigious stage. As to the extent of the disclosure, it is confined to the period during which the consignment was within the possession or control of the Railway Administration; it does not relate, for instance, to the period after the goods have been theftuously removed from the premises. On the other hand, it does envisage a precise statement of how the consignment was dealt with by the Administration or its servants. The character of what is requisite may vary according to the circumstances of different cases but, if the consignor is not satisfied that the disclosure has been adeouate 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." This decision of their Lordships of the Judicial Committee was construed in the case of 'GOVERNOR-GENERAL OF INDIA IN-COUNCIL v. THAKURSI DASS', AIR 1948 Pat 45 in which Meredith, J. observed as follows: "What exactly this involves and the proper procedure on such case has been clearly explained by the Privy Council in 'SURAT COTTON SPINNING AND WEAVING MILLS, LTD v SECY. OF STATE', 64 Ind App 176 (PC). What it comes to is this. The Railway Administration must first make the necessary disclosure, and if the consignor is not satisfied with or is doubtful as to the accuracy or truth of the information disclosed and wants evidence, then the Railway Administration must be the first to submit their evidence at the trial. If the consignor is satisfied that full disclosure has been made, then he must discharge the onus upon him, and he can do it either by showing that misconduct may be inferred from the evidence led by the Railway Administration, or the disclosure made by them, or he may in his turn affirmatively lead evidence which establishes misconduct. That is one possible course. If, on the other hand, he is not satisfied with the disclosure made, then it is his duty to call upon the Railway Administration for further and better disclosure, or evidence. If he does so then it will be for the court to decide whether his demand has or has not gone beyond the obligation which lies upon the Railway Administration under the proviso. If the court holds that his demand for further proof is not justifiable, then of course the Railway Administration need not disclose anything more, and there can be no inference against them from that fact. The plaintiff still has to discharge his burden. But, if the court holds that the demand is reasonable and in spite of the court's decision the Railway Administration does not disclose the further particulars called for, then the presumption under Section 114 (g). Evidence Act, which says that a presumption may be drawn that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, will come into operation and the plaintiff may call upon the court to draw an inference of misconduct upon the basis of that presumption alone. But if the Railway Administration has made the further disclosure and no inference can be drawn from the evidence disclosed, then the burden still lies upon the plaintiff, and he has to discharge it before he can succeed,"
In my opinion, it is not correct to say that the suit should have been decreed on the authority of the above mentioned Privy Council decision merely because no mention of loss by theft was made in Exhibits 4 and 4a. This omission may be a relevant and an important factor in deciding the story of theft as disclosed by the defendant at the trial, but it cannot be held to be sufficient to establish the misconduct of the Railway Administration's servants.
9. Learned Counsel for the appellant next contended that the judgment of the lower appellate court is vitiated because it has not considered and discussed some important documents which go to show that the defendant's story of theft in the running train between the stations Ramkanali and Burnpur is an afterthought. He referred particularly to exhibits 4, 4a and H in this connection. He submitted that if the tampering with the wagon was detected on the 6th of June 1946 and if on that date telegraphic messages to that effect had been despatched to the authorities concerned as is the case of the defendant, then how is it that on the 28th of August 1946 enquiries were being made to trace the consignment? The relevant portions of the letters from the Chief Commercial Manager, East Indian Railway, to the pleader of the plaintiff which have been marked as exhibits 4a and 4 on the record run thus:
"Dear Sir, Re: Nagpur to Baidyanathdham Inv. 21. D/- 31-5-1946, 40 bales of Yarns.
Your letter dated 28-8-1946.
With reference to your letter quoted above I have to inform you that the special enquiries are being made to trace the consignment and on completion of the same the result will be communicated to you very shortly.....' "Dear Sir, Re: Nagpur to Baidyanathdham, Inv. 21 dated 31-5-1946.
Your Letter dated 14-11-1946.
With reference to your letter quoted above I have to inform you that enquiries are in progress and on completion of the same will be communicated with the result very shortly."
10. Mr. Lalnarain Sinha further submitted that the court of appeal has failed to notice that in the forwarding consignment note (Ext. H) it was distinctly mentioned that the 40 bales of cotton yarn had been loaded in wagon No. 59409, while the case of the defendant at the trial is that 34 bales were despatched by wagon No. 59409 and 6 bales were despatched by wagon No. 28912. According to him, this discrepancy in exhibit H could have been explained only by D. M. Dhavle who is said to have filled in the relevant entries. He urged that proof of exhibits G, H and I by Mr. P. B. Naidu on his recognition of! the writing of Mr. Dhavle should not have been considered sufficient. Ho contended that the examination of Mr. Dhavle is very essential in the circumstances of this case.
11. Mr. Lalnarain Sinha further submitted that the following passage in the judgment of the lower appellate court leaves no room for doubt that the learned District Judge had proceeded to decide the case more on imagination rather than on evidence. According to him, it is a fit case in which this Court should interfere. The relevant portion of the judgment which was the subject-matter of this criticism runs thus:
"The learned Subordinate Judge has rightly pointed out that while the train is moving a man cannot use both his hands in breaking a rivet because he will loose his foothold. It seems to me, however, that there is no justification for assuming that only one man must have taken part in the breaking of the rivets. It is quite possible that two men got near the doors and one of them held the chisel and the other used the hammer. Apart from that, the witness further deposed that there is one instrument with a hole in it by which one can break a rivet with one hand. The possibility that an instrument of this kind might have been used cannot be excluded."
12. Learned counsel for the respondent, on the other hand, contended that the finding about 'misconduct' is a finding of fact which cannot be interfered with in second appeal. In support of his contention he relied upon the decision in the case of 'DURGA DUTTA SHRI RAM FIRM v. SECY. OF STATE', 11 Pat LT 161 in which Wort, J. observed as follows. "If the finding in this case had been that there was wilful neglect, it would have been for this court to say whether there was any evidence of wilful neglect and that undoubtedly was a question of law. But, when the learned Judge in the court below has considered all the facts and circumstances in the case and come to the conclusion as a fact that there has been no wilful neglect, I agree with the argument, which was put forward by Mr. S. N. Bose on behalf of the respondent, that the matter is concluded so far as this Court is concerned."
13. In my opinion, the decision in the case of 'DURGA DUTT SHRI RAM FIRM', (11 Pat LT 161) cannot apply to this case as the court of appeal below has not considered some important aspects of the case. I agree with the learned Counsel for the appellant that the court of appeal below has omitted to consider exhibits 4, 4a and H in the light of his argument and has further travelled in the realm of imagination in arriving at the most important finding in the case. 1 further agree with him that the examination of Mr. Dhavle was necessary to explain the apparent inconsistency in the entry in exhibit H and the evidence of the defendant led at the trial as to whether all the 40 bales had been despatched in one wagon or in more than one wagon. In this view of the matter, justice of the case demands that the appeal be sent back for further hearing and decision in accordance with law, after giving an opportunity to the defendant to examine D. M. Dhavle.
14. The result is that the judgment and decree of the court of appeal below are set aside and the appeal is remanded to the lower appellate court for decision in accordance with law. Costs of this appeal will abide the result.
Jamuar, J.
15. I agree.