The Judgment of the Court was delivered by

K.C Sen, J.:— These two appeals arise from one judgment and two decrees passed by the learned Subordinate Judge, 8th Court, Alipore, in Money Suits Nos. 21 and 22 of 1952.

2. The plaintiff, Cooch-Behar Commercial Company, brought the aforesaid suits for recovery of Rs. 5456/9/- and Rs. 5681/2/6 pies respectively from the defendant, viz., the Union of India, representing the Eastern Railway. It is alleged in money suit No. 21 of 1952 that on the 27th Tuly 1948, the East Indian Railway accepted at Sealdah Station 5 bales of cotton piece-goods to be safely and securely carried to and delivered at Siliguri Railway Station. The consignee was the Civil Supplies Commissioner, Coochbehar and the Railway receipt 912608 was duly endorsed in favour of the plaintiff by the consignee. It was alleged that out of the 5 bales covered by the Railway receipts only two bales were delivered to the plaintiff. The remaining three bales were not delivered. Accordingly, it is stated that the Railway administration misconducted themselves in respect thereof and the remaining three bales were not delivered to the plaintiff on account of negligence. The same allegations have been made in money suit No. 22 of 1958 regarding misconduct and negligence on the ground that 4 bales of cotton piece goods covered by the railway receipt No. 912844 were not at all delivered to the plaintiff.

3. In the written statement, filed by the Union of India, it was alleged that the plaintiff had no title to the goods in dispute and as the consignments were covered by Risk Motes A and B, the Kailway Administration was not liable for the loss. Furthermore, it was stated that there was no misconduct on the part of the Railway Administration with respect to the said consignments in dispute. The Siliguri Railway Station and a portion of the route traversed by the consignments in suits were under the management of the Eastern Bengal Railway owned by the Dominion of Pakistan. It is stated that the alleged short-delivery, loss or damage did not occur on the Eastern Railway, nor was the said Railway concerned in any way with the delivery of the said good at the destination station which was owned by the administration of the Eastern Bengal Railway. At material times, however, the Eastern Railway took all reasonable and proper care for the due security of the said goods, prior to its making over of the same to the Eastern Bengal Railway. In the circumstances, it is stated that the defendant is not at all liable.

4. The other points raised in the written statement need not be discussed, as they were not urged in these appeals.

5. The learned Subordinate Judge who heard the suits decided that the plaintiff had no ownership over the consignments and that on account of the execution of the Risk Notes A and B, the Railway Administration could not be found liable for the money claimed.

6. In these appeals, Mr. Sen, the learned Advocate for the appellant has urged two points, viz., (1) that the plaintiff had really ownership over the goods lost and, (2) that the defendant, viz., the Union of India not having disclosed to the consignor how the consignments were dealt with throughout the time it was in its possession or control, misconduct on its part can reasonably be inferred for making it liable for damages.

7. As regards the first point, it appears that one Bridhichand Champalal applied to the Director of Textiles for receiving a permit under the Bengal Cotton Cloth and Yarn Movements Control Order, 1946, for the movement of the Textile goods in dispute from Sealdah to Siliguri (Vide Ext. 6). It will appear therefrom that the permit was granted to Bridhi Chand Champalal on behalf of the Cooch behar Commercial Company for consignment of goods from Sealdah to Siliguri. This document itself warrants the conclusion that Bridhi Chand Champalal was really acting as agent of the Cooch Behar Commercial Company and, as such, there can be no room for doubt that the plaintiff-appellant was the real owner of the goods consigned. Furthermore from the evidence of P.W 1, Ash Karan Nahata, it will appear that Bridhi Chand Champalal despatched the goods to the District Controller, Cooch Behar and the latter in his turn endorsed the Railway Receipts in favour of the plaintiff. This evidence remains unchallenged and from what has been stated above, it is perfectly clear that the ownership of the plaintiff-company cannot be disputed at all and the contrary finding of the learned Subordinate Judge was wrong. The first point urged on behalf of the appellant, therefore, succeeds. As regards the second point, Mr. Sen has contended that the Railway Administration is liable to make good the loss as there was short-delivery against the Railway Receipt no. 912608 and non-delivery against Railway Receipt No. 912844. In order to fasten the liability, the learned Advocate has laid stress upon the fact that the Railway was guilty of misconduct and negligence on account of its non-disclosure as to how the consignments were dealt with throughout the time it was in its possession or control. It appears from the evidence of D.W 3, Harbans Sanai, the Train Clerk at Naihati, that he had received the wagon no. 45431 on 31st July, 1958 at Naihati in good condition and in the same condition in which it was dispatched. The wagon bore Calcutta Seals on either side and rivets were in tact. Thereafter the wagon was delivered at Naihati to the Eastern Bengal Railway under the control of the State of Pakistan. Mr. Bose, the learned Advocate for the respondent contends that as the consignments were to pass through the Railway under the Administration of a foreign State, it was beyond the control of the respondent to make disclosures as to how it was dealt with over the foreign railway. It is further contended that beyond Naihati, the East Indian Railway had no control over the consignment and the factum of the alleged loss or short delivery at Siliguri cannot at all be accounted for by it as Siliguri Railway Station was undisputedly under the control of a foreign Railway. It will not be out of place to mention that the appellant at the time of booking the consignments was perfectly aware of the fact that they would pass through a foreign Railway which was the shortest route for the carriage of the consignments at Siliguri. Regard being had to these facts it seems clear that under, no condition the respondent was bound to make any disclosure as to how the consignment passed through the Foreign Railway if it is at all bound to do so.

8. The next question which arises is whether the respondent was at all liable to make any disclosure. It will appear from the Risk Note ‘A’ that it was executed by the consignor on a definite stipulation that the Railway would carry the goods from Sealdah to Siliguri harmless and free from all responsibility for the condition in which the goods might delivered to the consignee at destination and for any loss arising from the same, except upon proof that such loss arose from misconduct on the part of the Railway Administration. It is obviously clear that such a Risk Note was executed by the consignor with his eyes open as to the detective packing of the goods. The agreement in terms of the Note is deemed to have been made separately with all the Railway Administrations etc. who shall be carriers-for any portion of the transit at a ‘special reduced’ or owner's risk etc. Similarly, it was stipulated by execution of the Risk Note B that the Railway Administration should be held harmless and tree from all responsibility for any loss, destruction etc. to the consignment from any cause whatever except upon proof that such loss, destruction, deterioration etc. arose from the misconduct on the part of the Railway Administration subject to provisos (a) and (b). In terms of Provisos (a) and (b), 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 daily inferred from such evidence, the burden of proving such misconduct shall lie upon, the consignor. The sheet-anchor of Mr. Sen's argument is that he relies upon the provision of Risk Note B and contends that on account of non-disclosure, misconduct on the part of the Railway Administration is fairly inferred. Mr. Bose, however, meets his argument by saying that inasmuch as both the Risk Notes A and B were executed by the consignor in respect of both the cases, he is not at all bound to disclose how the consignment was dealt with throughout. His contention is that the combined effect of the execution of the said Risk notes is that the onus is entirely on the plaintiff to prove that the loss was due to the misconduct of Railway servants. By executing Bisk Note A, it is recognized that the package is defective and this therefore is a case outside the exception in Proviso (a) of Risk Note B, which only operates, provided the consignment is packed in accordance with the instructions laid down in the Tariff. This argument of Mr. Bose is based upon a decision reported in 55 Cal. W.N 251 : (AIR 1952 Cal 712), Bhupendra Kumar Choudhury v. Indian Union. As regards the goods consigned, 5 bales of goods covered by Railway Receipt No. 912608, it will appear from Ext. A, the Goods consignment Note, that against the column of ‘condition of goods’ one Girija Sankar made a note as follows: “Bales are press packed of gunny old singal torn and resewn liable to damage”. From this expression, it appears that the bales were not packed according to the Tariff Rules as appearing from the General Rule of Goods Tariff at page 493. Such a note regarding the goods covered by RR 912844 (Ext. H) has not been produced in evidence but from the execution of the Risk Note A which is not disputed, it may be presumed that this consignment also was defectively packed and was not, therefore, packed in conformity with the Goods Tariff Rules. In support of this contention, Mr. Bose has referred us a decision reported in AIR 1948 Cal 300, Governor-General in Council v. Kishengopal Bhartia. In this decision Lodge, J. observed

“In a claim against a Railway Company for non delivery or short delivery, a claimant who wishes to take refuge under the proviso to Risk Note B has to show in the first instance either that there are no Instructions in the Tariff or that the package was packed in accordance with the instructions laid down in the Tariff. Where the claimant has admitted by executing Risk Note ‘A’ that the package is detective and has omitted to show that in spite of the admitted defects the consignment was packed in accordance with the instructions laid down in the Tariff or to show that no instructions have been laid down, the proviso to Risk Note ‘B’ cannot be applied and the burden of proof in such a case would be on the claimant to show that the loss or damage arose from negligence or misconduct on the part of the Railway Administration or its servants.”

9. Mr. Sen has not been able to show any decision that the combined effect of the execution of the two Risk Notes is in any way different from what has been laid down in the aforesaid case. He has, however, placed before us a decision reported in 59 Cal W.N 278 : (AIR 1955 Cal 448), Union of India v. Gujrat Tobacco Co. The facts of the reported decision are quite dissimilar. In this case it is found that the plaintiff executed Risk Notes A and B for a consignment of Biri Tobacco and his claim arises out of damage alleged to have been caused by rain. It was found in that case that the bags in question were placed by the sides of the flap doors of the wagon and not far away from them by the railway staff although it was known to, or at least, ought to have been realised by the railway authorities that rain, being usual at the time of the year when the consignment was being carried, the Biri Tobacco was likely to be damaged by rain water, if placed near the flap doors. On this fact, their Lordships held that although judicial decision on the question whether negligence found in this case would satisfy the test of misconduct, is not uniform, this Court would not interfere in revision with the findings arrived at by the trial Judge who decreed the claim in favour of the plaintiff according to the substantial, justice. In these appeals, there is no evidence on, record that the short delivery or non-delivery was made on account of any inherent defect in the wagon, in which the consignment was placed and, as such, the aforesaid decision does not apply to the present case at all.

10. Although the Railway Administration was not by virtue of the execution of Risk Notes A and B, bound to disclose how the consignment was dealt with throughout, it has in all fairness laid evidence to show how they were dealt with upto Naihati Railway Station, when the wagon was ??? over to the Pakistan Railway Administration. There is no room for doubt that upto Naihati, the wagon seals were intact and, as such, loss or damage could not be presumed. In the circumstances, the onus lay upon the plaintiff to show that the loss and short delivery were occasioned on account of the misconduct and negligence of the Railway Administration. There is no material on record to show that the plaintiff has adduced evidence in these cases-to prove these facts. Our attention was also invited to a decision reported in 59 Cal. W.N 504 : (A.I.R 1955 Cal. 264), Chhatumull Chowthmull v. Union of India. In this decision it appears that 125 bales of four mounds of Jute per bale were made over to the Station Master, Gaibandha, East Pakistan, for carnage to Cossipur Road Railway Station on the Eastern Railway in the Union of India. The goods were carried by the Pakistan Railway to the border and the goods were received by the Eastern Railway from the Pakistan Railway. While the goods were-lying in the godown of the Eastern Railway they were damaged by rain for which the plaintiff sued the Eastern Railway for recovery of a certain amount. On these facts it was held that the proper conclusion is not that the Pakistan Railway as principal made the contract with the Eastern Railway but that it made the contract with the Eastern Railway as an agent of the consignor for the carriage of goods to Cossipur Road Railway Station and delivered for to the consignee. Furthermore, it was found that when the goods remained in the possession of the Eastern Railway and held the same on a contract of bailment under the proper rules of the Indian Railways Act and levied charges, the Eastern Railway was liable under the Indian Act as a bailee on the contract of bailment of warehousing the goods, and was, therefore, liable for the loss. This decision helps neither of the parties on the facts placed before us and is only of academic interest for the purpose of these appeals. Neither Mr. Sen nor Mr. Bose could enlighten us on the point as to whether for the laches of a foreign Railway the respondent can be made liable. Ordinarily, the bailee's liability extends to damage caused by the negligence of his servants acting in the course of their employment about the use or custody of the thing bailed; but it does not extend to damage caused by the acts or defaults of third person which he could not by ordinary diligence have foreseen or prevented. But this principle, however, cannot be extended to the facts of the present case as the damage or loss was not sustained when the consignment was under the control of the respondent or under the control of-any other Railway in India.

11. Regard being had, however, to our decision regarding the liability of the Railway Administration as stated in the foregoing part of the judgment, we find that the appellant is not entitled to succeed. In the result, the appeals stand dismissed and the judgment and the decree of the learned Subordinate Judge are hereby affirmed. As admittedly the appellant has suffered monetary loss to a great extent, we direct both the parties will bear their own costs an this court.

Renupada Mukherjee, J.:— I agree.

CD/R.G.D

12. Appeals dismissed.