Patna High Court
North Eastern Railway And Anr. vs Ram Lal Golcha on 9 July, 1960
Equivalent citations: AIR1960PAT489, AIR 1960 PATNA 489
JUDGMENT Misra, J.
1. This is an appeal by the North Eastern Railway and the Union of India as owner of that Railway and is directed against the decision of the learned Additional Subordinate Judge, Purnea, dated 31-7-1954, passed in Money Suit No. 87 of 1949/ 4 of 1954. The plaintiff, respondent brought the suit for recovery of a sum of Rs. 1, 24, 556V-besides interest pendente lite and future as compensation for the non-delivery of 880 bales of jute weighing 3080 mds. as also the price of tarpaulins and corrugated iron-sheets payable by the North Eastern Railway Administration.
2. The case of the plaintiff, briefly stated was that he booked 1210 bales of jute, each bale weighing 3 1/2 mds., from Jogbani Railway Station on the O. T. Railway, as it then was, to Manihari Ghat Railway Station on 19-4-1948, and on the same date he also booked 1005, bales of jutel 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 Railway Station. They were also travelling by the same goods train although they were seated in the guard's van.
The goods train was detained unusually at Katihar. The trucks were taken to the yard and detained there for over six hours with numerous engines running to and fro nearby. The men of the plaintiff protested against this but the Railway authorities did not listen to their protests. The special train started from Katihar at noon when the sun was very hot and as a result coal-smoke and sparks emerged out of the funnel of the engine which was dangerously adjacent to the open trucks. The Railway Traffic Inspector who was escorting the train from Jogbani disappeared and the train was left solely in charge of the engine driver and a guard.
The plaintiff was given to understand that the Traffic Inspector would escort the train safely from Jogbani to Manihari Ghat but the undertaking was not fulfilled by the Railway Administration. When the train passed Marshi Railway Station, one of the wayside stations between Katihar and Manihari, and had not travelled more than two miles from Mansahi, fire broke out in the truck near the engine.
3. The driver of the engine noticed the fire, detached the engine and ran away with it towards Manihari leaving the trucks to their fate. The plaintiff's men who were in the train exerted hard to collect the local villagers and could thus detach some of the trucks which had not caught fire, pushed them back and brought them to Mansahi. The jute loaded on eleven trucks, one after another, was wholly gutted. Of these seven trucks contained the jute booked at Jogbani and four out of the thirteen booked at Forbesganj. The fire was caused on account of the wilful misconduct, gross negligence and recklessness of the Railway Administration and its employees. It was alleged further that the plaintiff never signed any risk notes in for A and C and did not authorise any employee to do it.
On account of the non-delivery of ' the goods' as aforesaid, notices under Section 77 of the Indian Railways Act and under Section 80 of the C. P. C., were duly served on the proper authorities by registered post but the Railway Administration did not care to compensate the plaintiff for the loss caused by the gross negligence and misconduct of the Railway employees. The suit was brought accordingly for recovery of the aforesaid 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 authorities insisted upon the execution of risk notes in form C in the circumstances, and, accordingly, the Railway Administration was not liable for the fire that broke out causing loss to the plaintiff. It was also alleged that the plaintiff, who was all along present at Jogbani and Forbesganj railway station when the goods special left these stations, never raised any objection to the arrangement of the train, i.e., the jute-laden trucks being placed next to the engine.
It was denied that the Railway Administration ever promised to the plaintiff that as a safety measure a Traffic Inspector would escort the goods train upto Manihari Ghat Railway station. As stated above, it was alleged further that the tarpaulins and corrugated iron-sheets were supplied by the plaintiff at the request of the Railway employees, and the fire broke out accidentally in the circumstances. The amount of the claim of compensation as also interest thereon were challenged as alleged and exaggerated.
5. The Union of India while supporting the plea of the North Eastern Railway (then O. T. Railway) Administration stated further that the defendant was not in any manner liable for the loss of the bales of jute concerned.
6. The learned Additional Subordinate Judge of Purnea on a consideration of the evidence led by the parties accepted the plaintiff's case as true and passed a decree in his favour in respect of the entire claim made by him except interest by way of damages prior to the date of the suit against which the present appeal has been preferred, as mentioned above, by the North Eastern Railway Administration, which has since taken the place of O. T. Railway Administration, as also by the Union of India.
7. It may be stated that on a consideration of the pleadings of the parties the learned Subordinate Judge framed issues which, as recast, stand as follows : .
1. Is the suit as framed maintainable?
2. Is the suit barred by limitation?
3. Were the notices under Ss. 80 C. P. C., and 77, I. R. Act in conformity with law and were they properly served?
4. Is the suit bad for defect of parties?"
5. Has the plaintiff any cause of action against the defendants?
6. Is the plaintiffs claim barred by the principles of estoppel and waiver?
7. Were the consignments in question loaded in open trucks with the consent and at the request of the plaintiff?
8. 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 on behalf of his client in the Court below, and which he has advanced in this Court, is that the risk notes, in the first place, were not executed by the plaintiff's men, and, if so, at any rate, not with the authority or consent of the plaintiff. Further, even if the signature of the plaintiff's employees on the three risk notes were to be found to be genuine, the same cannot fasten any liability on the plaintiff and cannot exonerate the Railway Administration inasmuch as these three documents were not duly executed in the sense that the details of the risk notes containing the description of the goods consigned were not filled in before the risk notes were signed on behalf of the plaintiff by his servants as stated.
In spite of the signatures, therefore, being genuine, the risk notes could not be treated as having been validly executed and the Railway Administration could not take advantage of such risk notes to exonerate them from liability in respect of the partial loss of the consignment by fire.
9. In this connection, our attention has been drawn by the learned Advocate-General appearing on behalf of the appellants, to the correspondence which passed between the plaintiff and the Railway Administration prior to the sanction of open trucks to the plaintiff for carrying his goods. Exhibit B is dated 30-3-1948. It is an application by the plaintiff to the Assistant Traffic Superintendent, O. T. Railway, Katihar, and runs :
"Sir, I have the honour to inform you that since long I have registered my need for wagons for booking jute Ex Jogbani Station, against which I have not received any wagons as yet, I therefore request you to kindly supply me at least 40 wagons (uncovered) for booking jute via Ammaura or Mani-hari or any via, so as to enable me to clear my stock, failing which I shall have to undergo huge loss.
I came to learn that you have very kindly allotted uncovered wagons for Kishanganj merchants and I pray that I too may be favoured with similar kindness and a special train of uncovered wagons may kindly be allotted to me at Jogbani as early as possible, and I shall take all the responsibility and risk in movement of jute by uncovered wagons. Thanking you and expecting your early and favourable orders.
I have the honour to be Sir, Your most obedient servant.
Sd. Ramlal Golcha."
The order of the A. T. S. on this 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 the Regional Controller of Railway Priorities before I could pass orders. I consulted him and when he agreed to the arranging of a special train with open wagons then I passed order to that effect.
7. About two weeks after 30-3-48, Mr. Nag came and met me again enquiring about the position with regard to their request for a special train.
8. I told him that I was agreeable to order for a special train open wagons provided the plaintiff agreed to execute risk Note C, cover the wagons with paulins and put his men on the top of each, wagon. To this Nag agreed verbally.
9. Then I demanded that assurance from him in writing which he gave to me. This order 'supply' is by me and bears my initial."
The evidence of this witness has not been shaken in any manner and, supported as it is by the evidence of the goods clerks at Jogbani (D. W. 4) and at Forbesganj (D. W. 6), lends support to the contention on behalf of the Railway Administration that the risk notes (Exs H/1, H/3 and H/5) were duly executed. Exhibit H/1 was executed by Probodh Choudhury who signed as an Agent for the plaintiff and covers 1210 bales of jute. Exhibit H/3 was signed by Mahal Chand on behalf of the plaintiff and covers a consignment of 397 bales. Exhibit H/5 is another risk note which was signed by Sadanand Jha on behalf of the plaintiff and covers a consignment of 608 bales. Exhibit H/1 relates to the despatch from Jogbani Railway station to Manihari station whereas Exs. H/3 and H/5 relate to the despatch from Forbesganj to Manihari Railway station.
Learned Advocate-General has urged that Exs. 14 and 4 (a) are also consistent with' the conclusion' that risk notes in form C (Exs. H/l, H/3 and H/5) were duly executed. Exhibit 4 is a notice from Mr. Bishwanath Mukherji, Advocate, of the plaintiff, to the General Manager, O. T. Railway, dated 8-7-1948, while charging the Railway Administration with negligence and while referring to the Railway receipt under which the goods were eon-signed, it does not state that risk notes C were not executed. The omission to refer to this fact goes to support the defence case of due execution of the risk notes, for, if it were riot so, there is no reason why this obvious fact which would have made the Railway Administration liable without proving any gross negligence and misconduct on the part of the Railway employees, would not 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 to sign the aforesaid documents. He has contended that these documents were, in fact, produced at a late stage and as such they should be rejected as forged documents. In fact, Sadanand Jha, Prabodh Ghoudhary and Mahal Chand were not the employees of the plaintiff and they were picked up at random by the Railway staff as having been signatories of the three risk notes.
In my opinion, the argument is wholly devoid of substance. The denial by the plaintiff that they were not his employees is altogether false. Is it difficult to believe that the Assistant Traffic Superintendent, Katihar, who was personally approached for supply of open wagons or trucks, on which, point there is no controversy, and who had insisted upon the execution of the risk notes before allowing the use of open wagons for transporting the jute, "would not issue direction to the railway staff at Jogbani or Forbesganj to have risk notes duly executed by the plaintiff Or his men.
If the three risk notes had stood alone without the background of Exs. B and D to D/2, the point could have been argued on behalf' of the plaintiff. As it is, however, in view of Exs. B and D to D/2, the genuineness of which has not been denied on behalf of the plaintiff, I am not prepared to entertain the argument advanced by Mr. P. R. Das, for the respondent, that the risk notes were not in existence and were manufactured later on to bolster up the defence case.
10. Mr. P. R, Das has drawn our attention in this connection to the order sheet of the Court of the learned Additional Subordinate Judge. Before, however, I deal with the contention based on the order sheet, I may state that a prayer has been made in this Court on behalf of the appellants to admit certain documents as additional evidence under Order 41, Rule 27, C. P. C. Document No, 1 is an application from Ramlal Golcha to the Assistant Traffic Superintendent, Katihar, and No. .2 is the copy of letter from the Assistant Traffic Superintendent to C. T. No. 4, Katihar. Documents Nos. 3 and 4 are copies of railway receipts; documents Nos. 5 and 6 are the policies held by the plaintiff Ramlal Golcha in the Free India General Insurance Co., Ltd., Calcutta in respect of the goods despatched from Jogbani and Forbesganj, which were in part destroyed, forming the subject-matter of the present suit; documents Nos. 7 and 8 are extracts from Calcutta Prices 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 signed by Mr, Nag on behalf of Ramlal Golcha. The order of the Assistant Traffic Superintendent on this was as follows :
"Please arrange to send open trucks to JBN, FBG and BOE as detailed below for loading jute for MHI.
JBN (Jogbani) --30 trucks at 5 a day.
FBG (Forbesganj) -- 30 trucks at 5 a day.
BOE (Barsoi) -- 5 trucks at 1 a day.
SMs/ JBN, FBG and BOE on receipt of the trucks will allot to M/s, Ramlal Golcha strictly according to O. D. R., for loading and booking jute for MHI subject to the party agreement to provide escort with third class ticket and Tarpaulin on each truck.
These will be booked at owner's risk, executing risk Note 'C' as per rule."
If these documents are taken into consideration, there can be no manner of doubt that risk note C had been duly executed and the oral evidence to the contrary led on behalf of plaintiff must be rejected as absolutely false, and concocted. In that view of the matter, I think it unnecessary to detail the oral evidence of the witnesses on behalf of the plaintiff to prove that Prabodh Choudhury, Sadanand Jha and Mahal Chand were not the employees of the plaintiff and in fact, one Triloke Chand (P. W. 14) and Chandan Mal (P. W. 1) were deputed by the plaintiff to deliver the goods to the Railway authorities at both the places, who did not execute the risk notes concerned. It is absolutely baseless to suggest that Sadanand Jha, Mahal Chand and Prabodh Choudhury were picked up at random by the Railway authorities and their names were mentioned as the executants of the risk notes on behalf of the plaintiff.
11. Learned counsel for the respondent has further urged that, in any view, the risk notes in question were not valid in law for more than one reason. In the first place, according to the evidence of D. W. 6, the risk notes were signed by the agents of the plaintiff before the forms were duly filled up. According to that statement, they signed the risk notes and after that the description of the goods consigned was put in. This would not amount to valid execution, as the execution can be said to be legal only when the document sought to be executed is fully drawn up and the executant being aware of the contents of the documents puts his signature on the document concerned.
He referred in this connection to the cases of Raghunandan Ram Gopi Ram v. G. I. P. Rly., 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 esssential 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 details, fills up later on in presence of the executant, in my opinion, the validity of the document is not affected thereby.
Considering the volume of business which the Railway staff have to transact in the form of despatch of goods, one cannot insist on meticulous compliance with the ordinary rule. It may, however, , be made clear that where the details filled in later on are challenged as unauthorised by the executant, as for instance, even in this case if there had been a dispute between the parties as to the number of bales despatched, it could plausibly be argued, in view of the evidence of D. W. 6, that the entry with regard to the number of bales of jute under consignment would not be binding upon the executant.
It is clear, however, that no such point has been raised in the present case. It is not contended that the number of bales entered or, for the matter of that, any detail entered in the risk notes by the goods-clerk, after the signature by the plaintiff's agent, is not correct. In the circumstances, therefore, nothing turns upon the way in which these risk notes were executed, provided it can be established, as it has been established in the present case, that the. plaintiffs employees knowing full well that they were executing risk notes C, did so. The above Calcutta case is distinguishable as it is not clear as to when the detail.; were filled up unlike the present case wherein the evidence of D. W. 6 is as follows :
"I filled in the form, its body after I obtained the signatures on them."
In 3 Pat LW 226 at p. 231 : (AIR 1916 Pat 206 at p. 209), the following observation was made :
"In our view, execution consists in signing a document written out and read over and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence; where there is no document in existence there cannot be. execution. But this in the present case is not the whole point."
This was the case of a mortgage deed and execution of the document itself was being denied. The point of Mr. P. R. Das so far as the present aspect is concerned would be one where the validity of the risk notes can be upheld when the printed form containing the conditions of the contract are signed but the other details are filled in by the goods-clerk after that in presence of the executant. In ILR 46 All 649 : (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. Das, does not support his contention. At p. 36, the principle propounded in regard to the validity of a document which has been duly signed and executed, but in which some details have been subsequently put in, is as follows :
"Where the names of both vendor and pur chaser are inserted in the transfer, and the des cription of the subject-matter is merely amplified after execution, but a contract complete in its essen tial term is entered into before execution, the blank being left only because the parties are igno rant of the full description of the property, the deed as filled up is binding; but, on the other hand, if no complete contract be made before exe cution, ' and the description is wholly wanting, so that the deed passes nothing, the Subsequent fill ing up of a blank by supplying the whole descrip tion will not pass the property; so that the distinc tion seems to be between filling up an immate rial blank, and supplying a description which would be wholly wanting, but for the additions made."
At p. 34, the principle has been summarised as follows :
"In the cases already treated of, where the blanks were filled up with consent of all parties, the object was to carry out the contract previously made between the parties; but, on the .other hand, where an, instrument is executed in the form of a deed, not' in pursuance of any previous contract, but with the intention of getting some person to enter into a contract which can be expressed by filling his name into the blanks of the instrument, the instrument, notwithstanding that the blanks may be filled up, is void as a deed".
In the present case, therefore, if the printed forms were signed on behalf of the plaintiff, the signatories were fully aware of the fact that the Railway Administration was being exempted from liability on account of the jute being transported in open trucks, so that the contract between the parties had in substance come into existence and the subsequent filling in of the blank in regard to some details, which are not controverted by the plaintiff in the present litigation, cannot be regarded as material alteration of the document.
The above consideration applies even to tie execution of deeds, and so far as the risk notes are concerned, the position in law would be better from the point of view of the Railway Administration and, in any case, the risk notes cannot 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 am unable to accede to the argument of Mr. Das, and I am satisfied that the contention of the learned Advocate-General is well founded and it must be held that after having made the representation aforesaid it is not open to the plaintiff to turn round and 'gay that risk notes form C were not executed on his behalf as adverted to later on.
12. Mr. P. R. Das has, however, contended that, in any case, risk notes C set up by the defendants are invalid in law, even assuming that they were duly executed by the employees of the plaintiff with authority from him. He has referred in this connection to Section 72 of the Indian Railways Act which on the relevant date, stood as follows :
"72. (1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under Ss. 152 and 161 of the Indian Contract Act, 1872.
(2) An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it
(a) is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and
(b) is otherwise in a form approved by the Central Government.
(3) Nothing in the Common Law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a railway administration."
13. Mr. Das referred in particular to Sub-section (2) which provides that any agreement purporting to limit the responsibility of the Railway Administration as bailee can only be valid in law if it is in a form approved by the Central Government, He has referred in this connection to the changes effected in the wording of this clause. Clause (b) originally referred to a form approved by tile Governor-General-in-Council. It came to be thereafter Federal Railway Authority. The forms used in Exs. H (1), H (3) and H/5 purport to have been issued in the name of the Governor-General-in Council. -
All the three risk notes bear the date 19-4-1948, when this form had become out-of-date even in 1937 when the Federal Railway Authority came to be suostituted for Governor-General-in-Council 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-Gene-ral, 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 Central Act or Regulation, a power to issue any notification, order, scheme, rule, form, or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form, or bye-law, if it is made after the commencement of this. Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power."
24. Continuation of orders etc., issued under enactments repealed and re-enacted :
Where any Central Act or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the provisions so re-enacted and when any Central Act or Regulation, which, by a notification under Section 5 or 5-A of the Scheduled Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section."
It is true, no doubt, as Mr. P. R. Das has urged, that the forms do not form part of the Indian Railways Act but it is clear that these forms have been issued in accordance with the requirements of Section 72. Section 24 lays down, inter alia, that when any Act or Regulation is repealed and re-enacted with or without modification, then any form etc, shall continue in force and be deemed to have been made or issued under the provisions so re-enacted. Accordingly, although the phrase "Central Government" has taken the place of the phrase "Governor-General in Council" after the aforesaid Adaptation of Laws Order of 1948, any form issued before in the name of the Governor-General in Council which occurred in Section 72(2), before its adaptation in 1937, must be deemed to have been approved by the Central Government.
Although 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 acordance 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 risk notes in so far as they are not drawn up in accordance with the provisions of Section 72 (2).
Learned Advocate General has contended that what he has urgad as estoppel against the plaintiff is not the validity of the form but the fact that after having made a representation to the Assistant Traffic Superintendent that he would duly execute risk notes C, he should not be permitted to resile from it. In fact, the learned Judges in ILR 46 All 649 : (AIR 1924 All 692 (2)) held that the plaintiffs were estopped from pleading that risk note C was not executed. The circumstances of the present case are clearer in favour of the Railway Administration and the question of estoppel against statute does not arise herein. Even apart, however, from this aspect of the question, 1 am satisfied that the risk notes exhibits H/1, H/3 and H/5 were in proper form and validly executed.
14. A further argument has been addressed to us with regard to the meaning of the expression "open wagons" as opposed to "open trucks". Mr. P. R. Das has contended that what the plaintiff had applied for was "open wagons" and not "open trucks". He has referred to the Tariff Rules and Section 53 of the Railways Act in support of his contention that there is real difference between "wagon" and "truck". It is no doubt true that Section 53 contains both these words "wagon" and "truck" but the intention of the Legislature herein is not to emphasise the distinction between the two words as to make them comprehensive and exclude any possible construction so as to make tha section applicable only to one class of these vehicles alone. He has also referred to Traffic Manual, Part I, transportation chapter 26 (E. B. Railway), page 144, where the expressions used are "open", "covered" and "elephant truck".
Mr. Das contended that "open wagons" mean wagons which are not covered at the top but which are covered on both sides whereas "open trucks" are those where not only the top but the sides also are open. In my opinion, however, the term "wagon" has been used in a loose sense and, as is its dictionary meaning, it will cover an open truck as well. The expression used refer to various types of open wagons, covered wagon, tank wagons and various types of trucks, such as elephant truck, timber truck, rail truck, dummy truck.
It is remarkable that there is no such expression as "open truck", evidently, 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 Rs. 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 at p. 253 has held that risk note C is used when goods are carried in open trucks and has also used the expressions "open trucks" and "open wagons" as synonymous. The learned Judges observed as follows :
"..... from the terms of the note, it is clear that the goods were carried in the open truck at the plaintiff's request. The consignment note purports to exempt the Railway from all responsibility for any damage to the consignment which might arise by reason of its being conveyed in an open wagon."
In the case of Governor General in Council v. Fatal Paul and Co. AIR 1952 Cal 285 the expressions "open wagon" and "open truck" have been taken to be synonymous. It was observed in that case :
"It is also clear from risk note 'C' that the destruction, deterioration or damage against which, indemnity is given thereby must arise 'by' reason or the consignment being" conveyed in open wagons in transit'. Admittedly, the present case is one of loss and there is also the finding of the Courts below that the said loss did not arise from the goods being carried in open truck, which finding cannot be challenged on the materials on record."
In my opinion, therefore, the contention of Mr. P. R. Das that the plaintiff had prayed for open wagons, and not open trucks, and, further, that risk note C could be used only for open wagons, excluding the open trucks, must be rejected as devoid of substance.
15. Mr. P. R. Das, in fact, urged only the above contention on behalf of the plaintiff-respon-dent. He has, however, also urge in a subsidiary manner misconduct on the part of the Railway servants in charge of the special goods train for showing that there was gross negligence on their part and even if risk notes C, exhibits H/1, H/3 and H/5,. were to be acted upon as valid and legal evidence, that would not exempt the Railway Administration from liability.
The facts and the circumstances of the present case also established the requisite misconduct on the part of the Railway employees to make defendant No. 1 liable for the loss and damage caused to the plaintiff by the destruction of 880 bales of jute as claimed by him. The learned Additional Subordinate Judge gave effect to this contention on the ground that no special Traffic Inspector accompanied the goods train from Katihar onwards; the driver of the engine ran away with the engine as soon as some of the trucks caught 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 privileged document and the enquiry was made only to enable the Railway Administration to decide whether compensation should be paid to the plaintiff for the loss caused to him or not and, accordingly, this departmental enquiry could have no relevant bearing on the suit. The enquiry report, is a privileged document and in this connection he referred to the very carefully considered order, being order No. 33, dated 25-1-1951, passed by the predecessor-in-office of the learned Additional Subordinate Judge who decided the suit, holding that the enquiry report, on the evidence on record of this case, is a privileged document.
He has referred to a number of English cases on the point and held that that this enquiry report was, in fact, prepared with a view to the litigation which might arise out of the accident in question. I endorse the conclusion arrived at by Mr. S. Banerji, the learned Additional Subordinate Judge. Apart from this aspect of the matter, however, in the circumstances in which the fire broke out, it was impossible for the Railway servants to do anything in the matter. The incident took place at a wayside station in the month of April when, according to the evidence on record (vide P. W. 5, the guard of the goods train), no water was available anywhere in the fields or close by and there is no doubt that all the jute must have been reduced to ashes within a short time before aid could be had even from Katihar.
The fact that the engine driver loosened the engine from the train and ran away was the proper thing to do, because the fire of the jute in the trucks might have caught the engine itself and destroyed it It was, therefore, the duty of the engine driver to detach the engine and take it to a safe distance. The circumstances of the case, in my opinion, do not at all disclose gross negligence or misconduct nor am I inclined to attach any importance to the argument that if the funnel of the engine had been away from the trucks there would have been no danger of fire, because, according to the evidence on record, it was not the truck next to the engine that caught fire but the one which was seven trucks away or four trucks according to P.W. 11. Evidently it was due to the sparks which fell on the jute either by the side or through some crevice of the corrugated iron-sheets and tarpaulin with which the top of the trucks was covered that fire inflamed the jute ir the truck.
In my opinion, therefore, there is no subslancf 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 AIR 1946 Cal 249 is an authority for this proposition as well. In that case also risk note C was executed in respect of the goods carried in an open truck and the consignment was destroyed by fire. The argument advanced in that case was that the risk note C did not exempt the Railway from liability for negligence or misconduct and the learned Judge after an elaborate discussion of the various considerations arising in the matter came to the following conclusion :
"In regard to risk note 'C Mr. Das Gupta con tended that loss caused by the negligence or miscon duct of the Railway is not excepted by the provi sions in the risk note. Railways in India are not liable as common carriers, but they have, as is clear from Section 72 of the Railways Act to accept the res ponsibility placed upon bailees by Ss. 151 and 152 of the Contract Act which require a bailee to take las much care of the goods bailed to him as a man of ordinary prudence would exercise. As I understand it, that makes a bailee liable for negligence or may be for some more serious wrong. Risk note 'C' must exempt the Railway from some liability. If it did not exempt them, as was contended, against loss occasioned by servants' negligence, then I can see nothing which is covered by risk note 'C'. In my view this risk note does exempt the Railway from loss caused by its servants' negligence or misconduct but to a limit ed extent, namely, to loss which may arise by rea son of the consignment being carried in the open wagon. It does not exempt them from all responsi bility."
The same view has been affirmed in other cases and it is accordingly clear that the only question for consideration in the present case would be the validity of the risk notes in question; and if it is once established that they were duly executed, the question of misconduct or negligence cannot arise in the case. In view of the above finding, it is unnecessary to go Snto the question as to whether the plaintiff can maintain the suit after having received a sum of Rs. 30,000/- from the Free India General Insurance Company of Calcutta with which the consignment was assured. All the points raised on behalf of the plaintiff-respondent having failed, and the contentions advanced on behalf of the appellants having been found to be substantial, the appeal must be allowed, the judgment and decree of the Court below set aside and the plaintiff's suit dismissed with costs throughout, Anant Singh, J.
16. I entirely agree.