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7. In the written statement in Suit No. 6 of 1952 the Union of India pleaded that the consignments were correctly received at Vizianagram whence they went loaded in wagon No. 37933 in sound condition. The train was last checked at Danton and all seals 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 form 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. 53304 open. After all necessary steps regarding this wagon were taken, the 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 door of wagon No. 37933 open and the seal card hanging on the ring. The wagon was checked and the suit packages were found missing. The defective condition of its seal escaped the notice of the guard earlier. Presumably wagon No. 87933 was interfered with between Contai Road and Bakhrabad and the bales lying by the side of the track were dropped from this wagon. Three bales were recovered but the party refused to take delivery. The loss of the bales was due to theft in transit when the train was on the run between Contai Road and Bakhrabad.

8. It is surprising that after having made this disclosure the appellant did not call the guard or any other witness from Contai Road or Bakhrabad. The guard was present in court at the hearing of the case. At the close of the evidence an application for adjournment was moved by the appellant stating that the rough journal book of the guard was misled and some time was necessary to trace it. The adjournment was granted. On the adjourned 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 packages lying on the track. Three packages were later recovered but no evidence was led to prove that they were offered to the respondent. The appellant called witnesses from Raipuram, Bhadrak and Kharag pur. The witness from Raipuram found wagon No. 87933 to be in good condition. No witness from Vizianagram was called. The witness from Bhadrak checked the wagon and found the seal intact. The written statement shows that the seal was checked at Danton. Danton is about 126 kilometres 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 it 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 administration may fairly be inferred. The administration was negligent: (i) in not properly - riveting the wagon; (ii) in not keeping watch over the train at Contai Road; (iii) in not taking proper care of the packages lying on the track between Contai Road and Bakhrabad; and (iv) in not delivering the packages subsequently recovered by it to the consignor.