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Attorney(S)
  • P.K. Bose
  • S.K Sarkar
  • for Opp. Party
Judges
  • G.N Prasad, J.
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Attorney(S)
  • P.K. Bose
  • S.K Sarkar
  • for Opp. Party
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  • G.N Prasad, J.
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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This application under section 25 of the Provincial Small Cause Courts Act was preferred by the Union of India (owner of the South Eastern Railway Administration). The Union was the defendant in a suit instituted by the plaintiff for recovery of Rs. 722.89 for the loss of a consignment of three baskets of betel leaves. The consignment was booked at Howrah for delivery at Sini under P.W. Bill No. 054031 on 23 May 1963. It reached Sini on 26 May 1963, by which time the betel leaves were found to be rotten and unfit for human consumption and were destroyed on the advice of the railway doctor.

The plaintiff alleged negligence and misconduct by railway staff in failing to dispatch the perishable consignment by the next available train after booking. The plaintiff served the requisite notice upon the General Manager of the South Eastern Railway and instituted the suit. The defendant denied negligence, pleaded an inherent defect in the consignment, contended that the consignment had been despatched by the first available train in accordance with rule 163 of Appendix 'C' of the Standing Orders relating to Goods and Goods Vehicles, and further pleaded that the claim was exaggerated.

The learned Small Cause Court Judge found that the consignment was not despatched by the first available means, that it became rotten due to negligence and misconduct of the Railway Administration (not because of any inherent defect), and decreed the suit for Rs. 540.

Legal Issues Presented

  1. Whether the consignment was despatched by the "first available means" as required by rule 163 of Appendix 'C', or whether there was a delay in despatch that constituted a breach of that rule.
  2. Whether the loss, destruction or damage to the consignment was caused by negligence or misconduct on the part of the Railway Administration (and thus liability under section 73 of the Indian Railways Act would apply).
  3. Whether the Railway Administration could rely on section 74 of the Indian Railways Act (meaning the consignment was deemed tendered at owner's risk because alternative rates were available) to escape liability.
  4. Whether the plaintiff had adduced sufficient evidence of the quantum of loss to justify the award made by the trial court.

Arguments of the Parties

Union of India / Defendant (represented by Mr. P.K. Bose)

  • Challenged the trial Judge's finding that the consignment was not despatched by the first available means, arguing that the conclusion was untenable and unsupported by the record.
  • Argued that negligence or misconduct could not be inferred merely because the consignment was damaged; the plaintiff was required to plead and prove the specific act or omission constituting negligence.
  • Relied on section 74 of the Indian Railways Act (as amended) to contend that if the consignment was tendered at the owner's risk rate (or if alternative rates were available), the plaintiff could not succeed by mere proof of damage.
  • Contended that rule 163 was only departmental instruction/standing order and not a statutory rule that the plaintiff could rely upon to fix liability.
  • Interpreted the word "available" in rule 163 to mean that the Railway Administration was not required to despatch the consignment on the very first train leaving if that train had no space; thus, "first available means" did not necessarily imply the immediate next train.
  • Challenged the plaintiff's evidence of quantum, pointing out that the bijak (Ext. 1) was rightly excluded and that the plaintiff's testimony on price was not sufficiently definite.

Plaintiff

  • Asserted that the consignment of perishable betel leaves was damaged due to negligence and misconduct of the railway staff because it was not despatched by the next available train after booking on 23-5-1963.
  • Sought recovery of Rs. 722.89 as compensation for the loss of the consignment.
  • Relied on the nature of the goods (perishable) and rule 163 of the Standing Orders (that perishable articles be despatched by the first available means) to establish breach of the Railway Administration's duty of care.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Unreported decision of U.N. Sinha, J., S.A. No. 250 of 1964, Dated 13-12-1965 (Pat) Held that delay in despatch of a consignment of onions did not ipso facto lead to an inference of negligence in the absence of other evidence. The court observed that this decision would have assisted the defendant only if the burden required the plaintiff to prove negligence; but the court found section 74 not proved by the defendant and therefore held the unreported decision to be of no assistance to Mr. Bose.
Unreported decision of Misra, J., S.A. No. 276 of 1961, Decided 17-12-1962 (Pat) Found that the consignment had been booked at the owner's risk rate, placing the onus on the plaintiff to prove negligence; plaintiff failed to discharge that onus. The court distinguished the present case because the defendant had neither pleaded nor proved booking at owner's risk rate; therefore the Misra, J. decision was not applicable to absolve the defendant here.
Bench of this Court, remand order dated 13-4-1966 in First Appeal Nos. 127, 128, 129, 130, 246 and 247 of 1958 (Pat) Observed that a presumption under section 74 arises only if the railway "provides for the carriage" at two rates (ordinary tariff or alternatively a special reduced/owner's risk rate); absent evidence of two rates, the presumption cannot arise. The court relied on this observation to support its conclusion that, since the defendant did not show that two such rates were provided for the carriage of the goods, the presumption under section 74 could not be invoked by the defendant.
Union of India v. Firm Laxmi Narain Har Narain, AIR 1963 Raj 162 Referenced by the Bench decision (see above) on the point that the presumption under section 74 arises only where two rates are provided. The court noted that the remand order had referred to this Rajasthan High Court decision and relied upon the remand order's reasoning in rejecting the defence founded on section 74.
Rasabati Bewa v. Union of India, AIR 1961 Orissa 113 Where the consignment had been booked at owner's risk rate; held that plaintiff must prove deterioration was due not only to delay but also for want of care by railway servants/administration. The court observed that Rasabati Bewa was distinguishable because there the consignment had been booked at owner's risk rate; in the present case the defendant did not prove any booking at owner's risk, so the Orissa decision did not assist the defendant.

Court's Reasoning and Analysis

The court proceeded by addressing the principal legal contentions in sequence, applying statutory provisions and the facts of the case as found by the trial Judge.

  1. Relationship between sections 73 and 74, Indian Railways Act:
    • The court accepted that the general responsibility of the Railway Administration is contained in section 73 and that this responsibility is subject to the provisions of section 74.
    • However, the court emphasised that the presumption under section 74 (that goods were tendered at owner's risk) arises only where the Railway Administration provided the consignor with the alternative rates (ordinary tariff rate or a special/owner's risk rate) for carriage.
    • Because the defendant neither pleaded nor proved that such alternative rates were available for the carriage of betel leaves, the court held that the defendant could not rely on section 74 to escape liability. Consequently, the general responsibility under section 73 applied.
  2. Application of rule 163 (Standing Orders) and its evidentiary role:
    • The court recognised that rule 163 is a departmental instruction prescribing that articles of a perishable nature be despatched by the first available means.
    • Although departmental instructions standing alone are not statutory obligations enforceable as such, the court found rule 163 relevant because it embodies the practical manifestation of the Railway Administration's common-carrier duty of care as required by section 73.
    • Non-observance of rule 163 could show that the Railway Administration had not taken the care expected of a bailee: if a perishable article was accepted for carriage, the administration is presumed to know it must be despatched as quickly as possible; if the administration accepts such goods without ensuring space on the next train or allows them to lie at the booking station for days, it cannot claim to have exercised reasonable care.
    • On the facts (the consignment was booked on 23-5-1963 and reached on 26-5-1963 while perished), the court agreed with the trial Judge that there had been delay in despatch and non-observance of rule 163, and the defendant had not explained that delay.
  3. Negligence and causation:
    • The court rejected the defendant's argument that negligence cannot be inferred from the mere fact of damage. While that general proposition may be true, the court found that here the trial court's factual findings (delay in despatch of a perishable consignment contrary to rule 163) supported an inference of negligence or failure to take reasonable care in the circumstances.
    • The court also considered the defendant's attempt to rely on reported and unreported decisions that required more specific proof of negligent acts, but held those authorities inapplicable or unhelpful because the defendant had not established that section 74 applied (i.e., that the consignment was tendered at owner's risk).
  4. Quantum of loss:
    • The court noted that the bijak (Ext. 1) relied upon by the plaintiff had been excluded and that the remaining material on valuation was the plaintiff's own statement (P.W.1) that each basket contained ten thousand betel leaves and the price was Rs. 18 to Rs. 20 per thousand.
    • The defendant challenged the definiteness of this evidence, but there was no contrary evidence on record; the trial court chose the lower rate of Rs. 18 per thousand and assessed the plaintiff's claim accordingly.
    • The appellate court found no impropriety in the trial court's approach to valuation and accepted the award of Rs. 540 as the quantum decreed below.
  5. Conclusion on liability and relief:
    • Given the lack of proof from the defendant that alternative rates were provided (to invoke section 74) and the trial court's findings as to delay and non-observance of rule 163, the appellate court upheld the trial court's conclusion that loss was due to negligence/failure of care by the Railway Administration under section 73.
    • The court therefore upheld the decree of the Small Cause Court and dismissed the Union of India's application.

Holding and Implications

HOLDING: PETITION DISMISSED.

Implications:

  • The decree of the Small Cause Court in favour of the plaintiff for Rs. 540 is upheld by the appellate court.
  • The Union of India (Railway Administration) cannot rely upon section 74 of the Indian Railways Act to defeat liability where it has not pleaded or proved that alternative carriage rates (ordinary tariff and a special/owner's risk rate) were available; absent that proof, section 73's general duty applies.
  • The court held that non-observance of rule 163 (requiring despatch of perishable articles by the first available means) is relevant evidence of failure to take reasonable care by a common carrier and can support a finding of liability when a perishable consignment is lost or destroyed in transit.
  • The direct effect on the parties: the plaintiff's decree for Rs. 540 stands; the application by the Union of India is dismissed with costs (hearing fee Rs. 32). The opinion does not purport to lay down any broader new precedent beyond applying existing statutory provisions and the cited authorities to the present facts.

Disposition in the opinion: "For the reasons given above, I uphold the decree of the Court below and dismiss this application with costs Hearing fee Rs. 32." Followed by "Petition dismissed."

Show full summary ...

    Union Of India v. Sadhu Ram Opp. Party.

    1. This application under section 25 of the Provincial Small Cause Courts Act has been preferred by the Union of India which, as the owner of the South Eastern Railway Administration, was the defendant in a suit instituted by the plaintiff for recovery of Rs. 722.89 on account of loss of a consignment of three baskets of betel leaves booked at Howrah for delivery at Sini. The consignment was booked under P.W Bill No. 054031 on the 23rd May, 1963 It reached the destination station on 26-5-1963, but it was found to have become absolutely rotten and unfit for human consumption and so it was destroyed under the advice of the rail way doctor.

    2. The case of the plaintiff was that the consignment was damaged due to negligence and misconduct of the railway staff who took no care, as they were bound to do, to despatch the consignment, which was an article of perishable nature, by the next available train after the booking on 23-5-1963 The plaintiff, accordingly, instituted the present suit after serving the requisite notice upon the General Manager of the South Eastern Railway for a decree for the aforesaid sum. The defendant resisted the plaintiff's claim alleging that no responsibility lay with the railways because the consignment was damaged not due to any negligence or misconduct on the part of the Railway Administration but on account of inherent defect in the consignment itself. The defendant further pleaded that the consignment was despatched by the first available train as provided in rule 163 of Appendix ‘C’ of the Standing Orders relating to Goods and Goods Vehicle. The defendant also put forward the plea that the plaintiff's claim was highly exaggerated.

    3. The learned Small Cause Court Judge has come to the conclusion that the consignment was not despatched by the first available means and that it became rotten and unfit for human consumption due to negligence and misconduct on the part of the Railway Administration. There was no inherent defect in the consignment. As regards the quantum of the claim, the learned Judge has decreed the suit for Rs. 540.only.

    4. The first contention of Mr. P.K Bose appearing for the Union of India is that the conclusion of the learned Judge to the effect that the consignment was not despatched by the first available means is untenable, based as it is, upon no material on the record. On this question, the learned Judge has referred to the evidence of the Parcel Booking Clerk (D.W 2) of Sini Railway Station who stated that there are three up trains running every day from Howrah to Sini and the normal time taken for journey between these two stations is 8 or 9 hours. The learned Judge has also pointed out that betel leaves are articles of nature and rule 163 prescribes that ??? Shall be despatched by the first available means. The present consignment having been booked at Howrah on 23-5-1963, it was expected to reach the destination station on the 24th or latest on the 25th May, 1963. But since it reached Sini on 26-5-1963, the learned Judge concluded that rule 163 was not observed and there was delay in despatching the commodity. This delay does not appear to have been explained on behalf of the defendant. Therefore. I am unable to accept the contention of the learned counsel that the materials do not justify the finding of the learned Judge with respect to breach of rule 163 on the part of the Railway Administration.

    5. The next contention of Mr. P.K Bose is that the learned Judge was not right in holding that the loss, destruction or damage to the consignment was due to any act of negligence or misconduct on the part of the Railway Administration or any of its servants Learned counsel contended that negligence or misconduct cannot be inferred merely from the fact that the consignment was damaged, and that it was incumbent upon the plaintiff to plead and prove what specific act or omission of the railway servants concerned constituted negligence or misconduct. According to Mr. Bose, the general responsibility of the Railway Administration as a carrier of goods laid down in section 73 of the Indian Railways Act, as amended by Act 39 of 1961, is subject to the provisions contained in section 74 of the Act, and if section 74 is applicable, then the plaintiff cannot succeed by mere proof of destruction or damage to the con signment.

    6. I am inclined to accept the contention of Mr. Bose to the effect that the general responsibility of the Railway Administration provided in section 73 of the Act is subject to the provisions contained in section 74 of the Act. But sub-section (1) of section 74 of the Act lays down that a consignment shall be deemed to have been tendered to be carried at owner's risk rate in cases where the Rail way Administration has provided for the carriage of such consignment either at the ordinary tariff rate or the railway risk rate, or in the alternative, at a special reduced rate or the owner's risk rate. It must follow that the defendant cannot rely upon the exceptional provisions of section 74 of the Act unless it proves that both the railway risk rate and the owner's risk rate were available to the consignor for the carriage of the article in question.

    7. In the present case, the defendant has neither pleaded nor proved that both the alternative rates had been provided for the Railway Administration for the carriage of a consignment of betel leaves. Therefore, from the mere omission of the plaintiff to plead or prove that the consignment was booked at the ordinary tariff rate. I do not find it possible to draw the inference that the consignment must be deemed to have been tendered to be carried at the owner's risk petite. That being so, the defendant cannot ??? of the provisions contained in sub-section (3) of section 74 of the Act. In other words, the general responsibility of the Railway Administration contained in section 73 of the Act is not limited in the present case by the provisions of section 74 of the Act.

    8. It may be pointed out that even under section 73 of the Act, it is open to the Railway Administration to escape responsibility for the loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods, arising from certain causes, such as act of God, act of war, and the like mentioned in clauses (a) to (i) of the section. But those considerations do not arise in the present case. Therefore, I see no reason why the general responsibility of the Railway Administration for the loss or destruction of the consignment in question cannot operate in the present instance.

    9. Mr. Bose relied upon an unreporled decision of Mr. Justice U.N Sinha, sitting singly, in S.A No. 250 of 1964 D/- 13-12-1965 (Pat). In that case, his Lordship held that delay in despatch of a consignment of onions did not ipso facto lead to an inference of negligence in the absence of any other evidence on record. This decision might have been helpful to Mr. Bose if I were to hold that the plaintiff in the present case cannot succeed unless he proved negligence or misconduct on the part of the Railway Administration or any of its servants. But in my opinion, it was not incumbent upon the plaintiff to prove that the consignment had been booked at the ordinary tariff rate. It was for the defendant to plead or prove that the Railway Administration had provided for both kinds of rates for the carriage of the goods, and as such the defendant was entitled to rely upon the provisions of section 74 of the Act. The unreported decision of U.N Sinha, J. is, therefore, of no assistance to Mr. Bose.

    10. Mr. Bose also relied upon an unreported decision of Misra, J. in S.A No. 276 of 1961 decided on 17-12-1962 (Pat). But in that case it was found that the consignment had been booked at the owner's risk rate. Therefore, It was held that the onus lay upon the plaintiff to prove negligence or misconduct on the part of the Railway Administration, and such onus was not discharged by the plaintiff in that case. In the present case, I do not find it possible to proceed upon the footing that the consignment was booked at the owner's risk rate because, as I have already indicated, the defendant has neither pleaded nor led evidence on the point that there was provision for carriage of the consignment in question at either of the two rates, namely, the ordinary tariff rate and a special reduced rate. Therefore, the unreported decision of Misra, J. is of no avail to Mr. Bose.

    11. The view which I lake receives support from certain observation made by a Bench of this Court in its remand order passed on 13-4-1966 in First Appeal Nos. 127, 128, 129, 130, 246 and 247 of 1958 (Pat). In paragraph 26, their Lordships have observed:

    “It is manifest that a presumption arises under section 740 that the goods were tendered to be carried at owner's risk. If the consignor agrees to pay the railway risk rale, the railway administration has to issue a certificate under sub-section (2) to that effect. The presumption will, however, arise only M the railway ‘provides for the carriage’ of the goods at two rates, viz., the ordinary tariff rate or alternatively a special reduced rate. No evidence has been adduced by the defendants to show that two such rates were, on the relevant date, provided for the carriage of sugar. That being so, the presumption cannot arise. Reference may be made in this connection to a Bench decision of the Rajasthan High Court in Union of India v. Firm Laxmi Narain Har Narain, AIR 1963 Raj 162, paragraph 14, at page 168”.

    12. Mr. Bose also relied upon a Bench decision of the Orissa High Court in Rasabati Bewa v. Union of India, AIR 1961 Orissa 113. But there the consignment had been booked at owner's risk rate Consequently, it was held that the plaintiff must prove that the deterioration in the goods while in transit was due not only to the delay in transhipment of the article, but also for want of care on the part of the railway servants or its administration. The question as to the circumstances under which the presumption that the goods were tendered to be carried at owner's risk would arise, did not fall for consideration in the Orissa case.

    13. From the aforesaid discussion, it is manifest that the Railway Administration is not entitled in the present case to rely upon the exceptional provisions contained in section 74 of the Act and the case must be decided upon the footing of the general responsibility of the Railway Administration laid down in Section 73 of the Act. Mr. Bose, however, contended that rule 163 of the Standing Order which prescribes that articles of perishable nature shall be despatched by the first available means, is not a statutory rule, but only in the nature of departmental instructions to be followed by the railway staff concerned, and, as such the plaintiff cannot rely upon a breach of that rule for the purpose of saddling the liability for the damage of the article upon the Railway Administration.

    14. It is true that the plaintiff cannot rely upon the non-observance of any departmental instruction or standing order as such, but rule 163 has been framed keeping in view the general responsibility of the Railway Administration in respect of articles of perishable nature which are delivered for carriage on a railway, because as common carrier, the Railway Administration was bound to take care of the consignment as a person of ordinary prudence would take in regard to his own articles. If the instruction contained in rule 163 had been complied with, then I he Rail way Administration would have been in a position to show that so far as it was concerned, it had taken all reasonable care for the consignment which had been entrusted to it for transport. The importance of non-observance of rule 163, therefore, lies in the fact that the Railway Administration cannot plead in the present case that the betel leaves in question which undoubtedly were articles of perishable nature, were damaged despite the fact that it took all such care which a person of ordinary prudence was expected to take in respect of his own property.

    15. Mr. Bose then contended that under rule 163, the Railway Administration was expected to despatch the consignment by the first available means. Laying stress upon the word “available”. Mr. Bose urged that it does not mean the very first train that leaves the booking station after the consignment has been tendered for carriage. The answer to this contention is that when an article of perishable nature is accepted for transport, the Railway Administration must be presumed to know that it must be despatched as quickly as possible. Where, therefore, it is not possible to despatch the article by the first train leaving the booking station due to want of space in such train, then the obvious course open to the Railway Administration is not to accept the perishable article unless and until there is space or accommodation available in the train by which the article in question has to be despatched if the Railway Administration accepts an article of perishable nature for transport, and instead of despatching it by the first available means, it allows the article to remain lying at the booking station for days together, then it cannot maintain that it has taken that care which it is expected to take as a bailee, as provided for in Section 73 of the Act. I am therefore, unable to accept the contention put forward by Mr. Bose and I have come to the conclusion that the Railway Administration cannot escape its liability for the loss or damage to the consignment in the present case.

    16. Mr. Bose then contended that the claim put forward by the plaintiff in the present case must fail on the ground that he has adduced no clear evidence with regard to the quantum of his loss.

    17. It is pointed out that the bijak (Ext. 1), upon which the plaintiff sought to rely in support of his case, was rightly excluded from consideration. Thus, the only other material on this point was the statement of the plaintiff (P.W 1) himself to the effect that each basket contained ten thousand betel leaves and the price of one thousand betel leaves was Rs. 18 to Rs. 20.

    18. Mr. Bose contended that the evidence of P.W 1 cannot be regarded as definite with respect to the price of the betel leaves in question. It must, however, be pointed out at there is no evidence to the contrary on the record, and therefore, the evidence of P.W 1 remains unchallenged. The Court below has accepted the lower rate of Rs. 18 per thousand in preference to the higher rate of Rs. ??? per thousand, as stated by P.W 1 and has ??? the plaintiff's claimed on that basis. I do not think that the Court below acted improperly in this matter. I am, therefore, unable to accept this contention of Mr. Bose.

    19. For the reasons given above, I uphold the decree of the Court below and dismiss this application with costs Hearing fee Rs. 32.

    EK/TVN/G.G.M

    20. Petition dismissed.

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    Comments

    Union Of India v. Sadhu Ram Opp. Party.
    (Nov 25, 1966)