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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.S.Basu
  • B.Pal
Judges
  • B.K Behera
  • R.C Patnaik, JJ.
Acts
  • Sec. 76-C. Railways Act, reads:76-C. Responsibility
  • Section 76-C. Railways Act
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.S.Basu
  • B.Pal
Judges
  • B.K Behera
  • R.C Patnaik, JJ.
Acts
  • Sec. 76-C. Railways Act, reads:76-C. Responsibility
  • Section 76-C. Railways Act
See more information ...
Smart Summary

Court Opinion Summary — Behera, J. (with R.C. Patnaik, J. concurring)

Factual and Procedural Background

The appellant sued the railway (respondent) for damages of Rs. 10,729.66 paise, with costs and interest, alleging non-delivery of a consignment of caustic soda lye booked in tank wagon No. CR-43595 under invoice No. 31 and R.R. No. 145457 dated 18-8-1969. The consignor Jayshree Chemicals Ltd. loaded the wagon at its private siding at Ganjam. The wagon was placed at the appellant's private siding on 23-8-1969 and was found empty and without seal and label, according to the appellant. After correspondence with the railway produced no result, the appellant instituted the suit.

The respondent denied negligence, pleaded that the wagon was loaded at the consignor's private siding (not supervised by railway staff), handed over to the appellant with seal intact, and therefore disavowed liability. Issues were framed, the parties led oral and documentary evidence (plaintiff examined four witnesses; defendant examined one witness), and the Subordinate Judge, Sambalpur dismissed the appellant's suit. The trial court applied Section 76-C of the Railways Act and relevant case law in arriving at its conclusion. The appellant appealed; the present opinion disposes of that appeal.

Legal Issues Presented

  1. Whether the appellant discharged the burden of proving that the tank wagon was actually loaded with caustic soda lye at the consignor's private siding (i.e., whether the appellant established actual loading of the goods for which damages were claimed).
  2. Whether the railway administration remained liable for loss/non-delivery after placing the wagon at the appellant's private siding, in light of Section 76-C of the Railways Act and the factual question whether the wagon was delivered without seal or label when placed and whether the appellant was informed in writing in accordance with Section 76-C.

Arguments of the Parties

Appellant's Arguments

  • The consignment of caustic soda lye was booked and the wagon was loaded at the consignor's private siding; on arrival at the appellant's siding the wagon was completely empty and without any seal or label.
  • The non-delivery was due to gross negligence and misconduct of the railway administration; after correspondence the railway failed to compensate, hence suit was instituted for the claimed damages.
  • On appeal, counsel for the appellant (Mr. Basu) contended that the trial court's findings about loading at Ganjam and about the absence of seal/emptiness at Brajarajnagar were incorrect and unfounded in light of the oral and documentary evidence adduced.

Respondent's Arguments

  • The railway denied negligence, asserting that the wagon had been loaded at the consignor's private siding (without railway supervision), that the consignor placed its seal on the railway seal card, and that the wagon was handed over to the appellant with the seal intact.
  • On appeal, counsel for the respondent (Mr. Pal) supported the trial court's reliance on Section 76-C and the precedents cited, submitting that the trial court's factual findings were sound and legally correct.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
(1972) 2 Cut WR 1187 — Union of India v. Straw Products Ltd., Javkaypur Principle that the liability of the railway ceases once the wagon is placed at the private siding of the consignee (point of interchange) and the owner of the siding has been informed. The trial court relied on this principle to hold that railway liability ended when the wagon was placed at the appellant's siding; the appellate court accepted the trial court's application of this principle given the evidence (or lack thereof) about seal tampering at the point of placement.
AIR 1965 Orissa 4 — Union of India v. Cuttack Cycle Supply & Co. Principles regarding railway liability in relation to delivery at private sidings and the consequences where wagons are placed and the siding-owner informed. The trial court took notice of this decision in concluding that the railway could not be held liable in the circumstances; the appellate court noted the trial court's reliance and agreed with the outcome given the evidentiary record.
AIR 1956 Mad 176 — Union of India v. S.P.L. Lekhu Reddiar Principles from Madras High Court concerning liability of the railway when goods are to be delivered at a siding not belonging to the railway and evidentiary burdens relating to seal/label and notice. The trial court relied on this authority to support its view that, absent proof of damage/tampering to the seal at the time of placement, the railway could not be saddled with liability; the appellate court found this application appropriate given the record.

Court's Reasoning and Analysis

The appellate court examined the trial court's factual findings and legal application step by step. The key elements of its reasoning are:

  1. Onus of proof: The court accepted the trial court's conclusion that the burden lay on the appellant to establish actual loading of the goods in the wagon. Documentary entries in the consignor's ledger, gate passes and siding log (Exts. 1–3) were insufficient by themselves to establish actual loading.
  2. Assessment of oral evidence: The appellant's principal oral witness about loading, P.W.1, testified "I had supervised the loading of the suit wagon and they were correctly and properly loaded." However, P.W.1 admitted loading occurred at the company's private siding without railway supervision; he acknowledged that the company put its seal and the railway did not make further checking. The court noted there was no contemporaneous documentary evidence corroborating P.W.1's claim of supervision and actual loading.
  3. Non-examination of material witnesses: The court found D.S.R. Reddy to be a material witness (evidence indicated he was in charge during repair and entries suggested his involvement). The appellant did not call him; the trial court drew an adverse inference for withholding this material witness, and the appellate court agreed this was justified.
  4. Application of Section 76-C, Railways Act: The court reproduced Section 76-C and explained it absolves the railway from responsibility for loss/damage/non-delivery after (a) the goods are to be delivered at a siding not belonging to the railway administration, and (b) the wagon has been placed at the point of interchange and the owner of the siding has been informed in writing of placement.
  5. Factual application of Section 76-C: The wagon had been placed at the appellant's siding on 23-8-1969 at the point of interchange and the appellant was informed (Ext. A); K.C. Das, the siding representative, signed the relevant register recording placement and handing over for unloading. Thus the formal conditions in Section 76-C for terminating railway responsibility were present on their face.
  6. Evidence about seal/label and immediate notice: Although later steps were taken (and later information was provided), the court noted absence of clear, acceptable evidence showing what was actually noticed at the time the wagon was placed. There was no evidence that K.C. Das gave immediate written notice that the wagon had no seal or label when placed; the claim notice (Ext. 12) did not mention missing seal or label. Some documentary items (Ext. 8 and alleged original Ext. 15) were not relied upon due to corrections/overwriting without initials.
  7. Legal consequence: So long as the seal was intact when the wagon was placed and the siding-owner informed, the railway could not be held responsible for subsequent shortage. Given the paucity of evidence that the seal was missing or tampered with at the time of placement, the court held the trial court correctly found in favour of the railway.

Holding and Implications

Holding: The appellate court affirmed the trial court's judgment and decree and dismissed the appeal. In the court's words, the "appeal fails and is dismissed with costs" and "The judgment and decree passed by the trial court are affirmed." The short formal entry by R.C. Patnaik, J. records concurrence: "I agree" and "Appeal dismissed."

Direct effect on the parties: The appellant's suit for Rs. 10,729.66 paise for non-delivery of caustic soda lye is dismissed; the appellant's claim against the railway is denied and the trial court's dismissal stands, with costs awarded against the appellant.

Broader implications: The opinion applies Section 76-C of the Railways Act and existing precedents to confirm that, when (i) a wagon is placed at the point of interchange with a private siding and (ii) the siding-owner is informed in writing, the railway's responsibility for loss/non-delivery ordinarily ceases unless there is cogent evidence the seal/label had been tampered with or removed at the time of placement. The opinion does not purport to announce a new principle of law beyond applying these statutory and precedential rules to the record; it affirms the trial court's application of established authorities.

Show full summary ...

    Orient Paper Mills Ltd. v. Union Of India .

    Behera, J.:— This appeal has been directed against the judgment and decree passed by the learned Subordinate Judge. Sambalpur, dismissing the appellant's suit against the respondent for damages to the tune of Rs. 10,729.66 paise with costs and future and pendente lite interest. The case of the appellant was that a consignment containing a caustic soda Iye in tank wagon No. CR-43595 was booked under invoice No. 31. R.R No. 145457 dated 18-8-1969 by the consignor Jayshree Chemicals Ltd. and the wagon was loaded at the private siding of the consignor at Ganjam. This consignment was placed at the siding of the appellant-company on 23-8-1969 and it was found to be completely empty. The wagon was without any seal and label. The non-delivery of the entire caustic soda lye was, according to the appellant, due to the gross negligence and misconduct of the railway administration and after protracted correspondence with the railway administration claiming damages without any result, the suit was instituted for the aforesaid claims. The respondent denied any negligence or misconduct on the part of the railway administration and their servants and pleaded that the consignment of the tank wagon was loaded at the consignor's private siding not supervised by any railway staff after due repairs to the wagon and the same was handed over to the appellant, (consignee) at the private siding of the appellant with the seal intact and, therefore, the railway administration incurred no liability. On these pleadings, issues were framed and the parties went to trial and led oral and documentary evidence. Four witnesses were examined for the plaintiff-appellant and the respondent had examined one witness. The trial court was of the view that the onus lay on the appellant to establish the actual loading of the goods for the loss of which the claims had been made. After a discussion of the evidence in this regard, the trial court did not accept the case of the appellant about the loading of the goods in the wagon. The learned Subordinate Judge has taken notice of Section 76-C. Railways Act and held, with reference to the principles laid down in (1972) 2 Cut WR 1187. Union Of India… v. Straw Products Ltd.…., Javkaypur, that the liability of the railway is over the moment the wagon is placed at the private siding of the appellant. Notice has been taken of the fact that no immediate intimation had been given that the wagon had no seal and label after the wagon was placed at the private siding of the appellant. According to the trial court, there was no evidence from the side of the appellant that the seal and the label had been damaged or tampered with at the time the wagon was places at the private siding of the appellant. Reference was made to the principles laid down by this Court in AIR 1965 Orissa 4, Union of India v. Cuttack Cycle Supply and Co. and by Madras High Court in AIR 1956 Mad 176. Union of India v. S.P.L Lekhu Reddiar and it was held that in the circumstances of the case, the respondent could not be saddled with any liability. Thus the plaintiff's claims were disallowed.

    2. Mr. Basu, appearing on behalf of the appellant, has contended, with reference to the relevant oral and documentary evidence, that the findings recorded by the trial court against the appellant both with regard to the loading of caustic soda lye at Ganjam and with regard to the appellant's claim that at the Brajarajnagar siding of the appellant, the seal of the wagon was not intact and the wagon was empty are incorrect and unfounded and that an unreasonable view has been taken by the trial court. Mr. Pal has referred to the same decisions on which reliance has been placed by the trial court and has submitted that the findings recorded by the trial court are factually well founded and legally sound.

    3. The admitted case of the parties to the suit was that the loading of caustic soda lye had been done at the consignor's private siding without the supervision of the railway staff and the consignor had nut its seal at the too of the railway seal card. This would appear from the evidence of P.W 1, and employee of Jayshree Chemicals and D.W 1 a railway employee. As has rightly been noticed by the trial court. Exts. 1 to 3 which were the entry in the ledger of the consignor, the issue of gate passes and the entry in the siding log book would not, by themselves establish the case of the appellant that the tank wagon had been loaded with caustic soda lye. As has been submitted at the Bar, the only oral evidence led from the side of the appellant with regard to the actual loading was that of P.W 1 and he had testified:

    “I had supervised the loading of the suit wagon and they were correctly and properly loaded.”

    It has been admitted by him that, the loading is done in the company's siding without supervision of the railway staff and the company outs its seal and the railway does not make any further checking. The trial court has taken note of the fact that as would clearly appear from Ext. 4. D.S.R Reddy had signed therein. P.W 1 had denied the suggestion that D.S.R Reddy was in charge as the Siding Supervisor and according to him he was the Field Operative. There was no contemporaneous documentary evidence supporting the evidence of P.W 1 that he had supervised the loading of the wagon. According to P.W 1, one Suryanarayan had checked up the suit wagon and Adinarayan Reddy was the Khalasi. None of them had been examined for the appellant. No other employee of Jayshree Chemicals had been examined to support the appellant's case of actual loading of the article in question in the wagon. As would appear from the evidence of D.W 1, at the time of repairing of the suit wagon. D.S.R Reddy was in charge of it from the side of Jayshree Chemicals and P.W 1 was not in charge of the wagon at that time. In the circumstances of the case, as observed by the trial court. D.S.R Reddy was a material witness and he had been withheld. The learned Subordinate Judge had drawn adverse inference for the non-examination of this material witness and in our view rightly so. It was for the appellant to establish the actual loading of caustic soda lye in respect of which damages had been claimed and we are of the view that the learned Subordinate Judge rightly came to the conclusion that there was paucity of evidence from the side of the appellant in this regard.

    4. Coming to the next question as to whether at the appellant's siding at Brajrajnagar after the appellant had been informed that the wagon had been placed, there had been no seal and the wagon was found to be empty, we notice that although later, in point of time, steps had been taken by the appellant for informing the railway administration in this regard and by the concerned employees of the railway upon such information, there was no clear and acceptable evidence to show as to what was actually noticed when the wagon was placed at the siding of the appellant who had information about it. Sec. 76-C. Railways Act, reads:

    “76-C. Responsibility for goods to be delivered at siding.— In the case of goods to be delivered by a railway administration at a siding not belonging to the administration, the railway administration shall not be responsible for loss, destruction, damages, deterioration or non-delivery of such goods, from whatever cause arising, after the wagon containing the goods has been placed at the point of interchange of wagons between the railway administration and the owner of the siding and the owner of the siding has been informed in writing that the wagon has been so placed.”

    This section absolves the railway administration for loss, damage or non-delivery of goods at a siding, whatever be the reason for such an occurrence, provided two conditions are fulfilled.

    (a) the goods are to be delivered at a siding which does not belong to the railway administration, and

    (b) the wagon containing the goods has been placed at the place where the wagons are exchanged between railway administration and the owner of the siding, who has been informed in writing that the wagon has been so placed.

    In the instant case, the wagon had been placed on the appellant's siding on 23-8-1969 at the point of interchange and information had been given about it, as per Ext. A, to which reference had been made by the trial court K.C Das, an employee of the appellant, had signed in the relevant register as the representative of the appellant giving the date and time of making over the wagon for unloading. This had been deposed to by P.W 4 an employee of the appellant and he had stated:

    “The Siding Shift Supervisor K.C Dash informed that the wagon was received empty. T. 39 register which is shown to me has been signed by K.C Dash which would show the time and date of placement in goods shed and the time and date of handing over for unloading………”

    P.Ws 2 to 4 were the employees of the appellant. According to P.W 2, it had been mentioned in the Shift Register (Ext. 5) dated 23-8-1969 that the wagon said to have contained caustic soda lye was found empty. This witness had not stated a word about any damage to the wagon or about the damage to the seal. P.W 3 had no personal knowledge about the shortage. He had proved the shortage receipt chalan (Ext. 61 wherein it had been stated that the wagon was received empty and that claim had been preferred. It is pertinent to note that K.C Das was the person who had signed the entry wherein the date and time of placement of the goods and the date of handing over for unloading had been mentioned. He would be the best person to say as to whether at the time the wagon was placed at the siding of the appellant, there had been any damage to the seal or that the wagon was empty. The appellant did not choose to examine such a material witness and, the trial court had Justifiably drawn adverse inference against the appellant for non-examination of such a person. As rightly observed by the trial court, had there been no seal or damage to it. K.S Das, who took charge of the wagon would, in the normal course, give in writing about it immediately when the wagon was placed at the private siding of the appellant. There was no evidence that he had done so. No mention had been made in the claim notice (Ext. 12) that the wagon had no seal and label. The trial court did not place reliance on Ext. 8 and Ext. 15 (said to be the original of Ext. 8) as there had been corrections and overwritings without initials and according to the trial court. Ext. 8, which did not show that the wagon had no seal and label, would not further the case of the appellant. So long as the seal was intact, the railway administration could not be held responsible for any shortage. In our view, the trial court correctly noticed that there was lack of evidence to show that the wagon, when placed at the private siding of the appellant, had no seal and label.

    5. For the aforesaid reasons, we find that none of the contentions raised on behalf of the appellant shall prevail.

    6. The appeal fails and is dismissed with costs. The judgment and decree passed by the trial court are affirmed.

    R.C Patnaik, J.:— I agree.

    Appeal dismissed.

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    Comments

    Orient Paper Mills Ltd. v. Union Of India .
    (Jan 2, 1984)