Judgement
PANDIT, J. :- This judgment will dispose of two connected Regular First Appeals, No. 37 of 1960 (The Union of India v. The Delhi Cloth and General Mills Limited) and No. 38 of 1960 (The Delhi Cloth and General Mills Limited v. The Union of India).
1a. The Delhi Cloth and General Mills Company limited (hereinafter referred to as the Company) brought a suit against the Union of India, defendant No. 1, through the General Managers of Northern and Eastern Railways, and Messrs. Ramji Das Sri Ram, Commission Agents of Calcutta, defendant No. 2, for the recovery of Rs. 28,880/5/4. According to the allegations of the plaintiff Company, it owned the Hissar Textile Mills. The Mills consigned to self 32 bales and 38 cases of cotton yarn on 9-4-1957 from Hissar to Howrah. These goods were loaded in wagon No. ER/70041. Defendant No. 2 were the plaintiffs agents for the sale of its goods. The aforesaid goods were despatched by the plaintiff to defendant No. 2 for sale as agents for and on behalf of the plaintiff. Accordingly, the railway receipt was endorsed in favour of defendant No. 2 to enable them to take delivery of the said consignment. Defendant No. 2 did not claim any right, title or interest in the said goods.
These goods were received at Howrah in wagons Nos. ER/45599 and NR/49306 on 19-4-1957. They were found burnt and in a spoiled condition and it was discovered that the consignment had caught fire on the way at Karota Railway Station and these were then re-loaded in the abovementioned two wagons. Before taking delivery, the goods were surveyed by Messrs. Lardner North and Company, Calcutta, in the presence of Shri A. Roy Chowdhry, Special Claims Inspector, Howrah. The total loss assessed by the said surveyor came to Rs. 28,880/5/4.
According to the plaintiff-Company, it was not possible to give full and complete particulars of the negligence and misconduct on the part of the Railway Administration or its servants in dealing with the said consignment as the said facts were within the special knowledge of the Railway Authorities. The consignment was obviously combustible, but in placing the wagon in the train, the. Railway Administration did not take care, that it should be placed at a sufficient distance from the engine so as to obviate all risk to fire. No arrangements had been made for protecting the consignment from the sparks of the engine. There was no adequate arrangement in the train itself or at the stations on route for extinguishing the fire. The Railway Administration did not take all reasonable care and precautions for protecting the aforesaid consignment as they were required to do as bailees. Consequently, the said consignment caught fire on account of their misconduct and negligence. As the said loss was the result of this negligence, the Union of India was liable to make good the loss so caused to the plaintiff. The plaintiff served the requisite notices under Sec. 80, Civil Procedure Code, and Sec. 77 of the Indian Railways Act. In spite of these notices, the Union of India had neglected and failed to pay the amount claimed.
2. The suit was resisted by the Union of India only. It was pleaded that the same was not maintainable in its present form; that the plaintiff-Company had no locus standi to file it as the company was neither the consignor nor the consignee of the goods and the railway receipt had also been endorsed in favour of defendant No. 2, who paid the freight and took delivery of the goods; and that the consignment was booked at Owners Risk Rate and the defendant, therefore, was not liable for any damage to or destruction of the said goods. It was also averred that the goods were burnt and damaged by an accidental fire on the way to Howrah and were then transshipped at Korota from railway wagon No. ER-70041 into the two above mentioned wagons. The survey of the goods might have been done by some private firm and the defendant had nothing to do with it, because no accredited agent was deputed by the Railway Administration for this purposes. The amount assessed as damages was highly exaggerated and was not in accordance with facts.
The wagon containing these goods left Moghalsaral Railway Station on 14-4-1957. When the train stopped at Karota in Dinapur Division, it was noticed that some flames were coming out of this wagon and, consequently, the train was stopped at Karota at 22/20 hours. On being examined by the Station Master, flames and smoke were found coming out of this wagon. The same was opened and some bales and boxes were found in burning condition. All possible attempts were adopted to fight the fire and later on with the help of the fire-brigade, it was brought under control. There had been no negligence or misconduct on the part of the Railway Administration or its employees. The fire was not caused by the sparks from the engine because it was fitted with a spark-arrestor. The wagon was examined by the Head Train Examiner and no crevices or openings were found in its body. It was otherwise also found fit for loading and no inflammable or combustible articles, which could have caused the fire, were loaded in it. The Railway Administration took all reasonable, care and precautions to protect the goods, but their liability did not extend to that of a bailee as the consignment was booked at "Owners risk rate", thus absolving the defendant from any liability for loss or damage from any cause whatsoever. The goods got burnt due to a purely accidental fire, over which the Railway Administration had no control and the defendant was, therefore, not liable to pay any compensation to the plaintiff. The said fire was not caused on account of any negligence or misconduct of the Railway employees. The notices sent by the plaintiff, being irregular and not in accordance with law, were inoperative.
3. It may be mentioned that defendant No. 2 filed a separate written statement, in which he admitted the allegations made by the plaintiff.
4. A replication was also filed by the Company in which the allegations made by the defendant were traversed and its own allegations made in the plaint were reasserted.
5. On the pleadings of the parties, the following issues were framed :-
1. Has the plaintiff locus standi to sue ?
2. Were the goods booked at owners risk ?
3. If so, has there been any negligence or misconduct of the Railway employees ?
4. How much damage has the plaintiff suffered ?
5. Is the notice under Sec. 77 and Sec. 80, Civil Procedure Code, on the Eastern Railway not in accordance with law ?
6. Did the plaintiff serve valid and legal notices under Sec. 77, Railways Act, and Sec. 80, Civil Procedure Code, on the Northern Railway ?
7. Is the suit not maintainable in its present form ?
8. Relief.
6. The trial Judge found that the plaintiff had locus standi to sue; that the goods were booked at "Owners risk rate"; that there had been some negligence on the part of the Railway employees, which had resulted in damage to the goods; that the total loss, which accrued to the plaintiff, as surveyed, was Rs. 28,880/5/4 and the defendandant was liable for about 25 per cent of the same, that is, Rs. 7,200/-; that valid notices had been sent by the plaintiff; and that the suit was maintainable in its present form. On these findings, a decree for Rs. 7,200/- only was passed in favour of the plaintiff against the Union of India. Against this decree, two appeals have been filed (1) by the plaintiff-Company and (2) by the Union of India. The Union of India is claiming that the suit should have been dismissed in its entirety, while, on the other hand, the Companys case is that their suit should have been decreed in to.
7. It may be stated at once that the decision of the trial Court on issues 1, 2, 5, 6 and 7 was not challenged before us. Therefore, the only question for decision before us is whether there was any negligence or misconduct on the part of the Railway employees and how much damage was suffered by the plaintiff on that account.
8. The goods having been booked at owners risk, according to the previsions of Sub-Sec. (3) of Sec. 74-C of the Indian Railways Act, 1890, the Railway Administration would not be responsible for any damage to those goods from any cause whatsoever except upon proof that such damage was due to the negligence or misconduct on the part of the Railway Administration or any of its servants. The burden of proving misconduct or negligence, is obviously on the plaintiff, but, according to the provisions of Sec. 72 of the Railways Act, the responsibility of the Railway Administration is that of a bailee under Secs. 151, 152 and 161 of the Indian Contract Act. In other words, the Railway Administration is supposed to take that much care of the goods as a man of ordinary prudence would take in respect of his own goods. Since the facts as to how the damage or loss had occurred to the goods are within the special knowledge of the Railway Administration, under the provisions of Sec. 106 of the Indian Evidence Act, the Railway Administration is supposed to adduce evidence to show how the goods were dealt with in the course of the transit and that they had taken as much care as a man of ordinary prudence would do regarding his own goods. In case the Railway Administration does not produce such evidence, an adverse presumption would be drawn against them under Sec. 114(g) of the Evidence Act. It may also be mentioned that in a case where the plaintiff calls upon the Railway Administration to adduce certain evidence, which was in their exclusive possession, and they fail to do so, the presumption under Sec. 114(g) of the Act would be still stronger.
9. Now, keeping this principle of law in view, we have to see as to whether the plaintiff has been able to prove negligence or misconduct on the part of the Railway employees.
10. According to the statement of Om Parkash, P.W. 5, the consignment was booked at Hissar and the goods were in order when they were loaded in the railway wagon in his presence. He has, however, admitted in cross-examination that he had seen the wagon. It was not broken and no water leaked into it. D.W. 2, Devi Ram, Railway Goods Clerk, also stated that the goods were loaded in a wagon, which was fit for loading. It appears that the goods were properly transported up to Patna. When the trains carrying these goods crossed Khusropur Station, the cabin man noticed that smoke was coming out of one wagon. He immediately informed D.W. 6, Jageshwar Ram, the cabinman of the next station, namely, Karota. This witness, in his evidence, stated that he diverted the train on the loop line, though in the ordinary course the train had not to stop at Karota. He then informed the Station Master, Karota, by telephone. This witness also saw smoke coming out of one wagon when the goods train arrived at Karota. He, however, did not notice any flames. D.W. 3, S.C. Sinha, was the Station Master of Karota on 14-4-1957. He has stated that at 10.20 P.M. the goods train arrived at Karota Station, He was informed that one of the wagons in that train was on fire. He sounded the warning bugle and he along with his staff, consisting of 14/15 persons, made all efforts to extinguish the fire with the help of water and sand buckets. The wagon containing the goods in question was on fire. It was detached from the rest of the train and fire-fighting was started. The flames were coming out from the southern side. The driver was asked to bring the engine of that very train on the other line by the side of the wagon and he then threw water from there with the help of a pipe. The southern door of the wagon was opened and fire-fighting continued. The fire, however, could not be controlled. The engine had to be removed from the side, because another mail train was due to arrive. On the northern side, the door of the wagon was then broken open and the goods were unloaded therefrom. After one-fourth of the goods had been brought out, the fire spread out and the unloading had to be stopped. While unloading was going on, he phoned the Controller at Dinapur to send the fire-brigade from Patna. The said fire-brigade arrived at 2.00 A.M. on 15-4-1957 and it brought the fire under control. He further stated that the engine had a spark-arrestor, which was in order. The Head Train Examiner arrived at about 1.50 A.M. He examined the axle and issued a certificate that it was not hot. No cause of fire was discovered by them. After the fire was extinguished, the goods were removed from the wagon and were re-loaded in two other wagons and sent to Howrah. The bales nearest to the southern door of the wagon were on fire, in the first instance. It was after 5/7 minutes that the other door of the wagon, was also opened. The Railway Authorities appointed a Board of high officers to enquire into the cause of the fire and the witness also appeared before them. According to him, Khusropur was at a distance of about six miles from Karota. D.W. 1, is A.K. Gupta, who was the Guard of the goods train at the relevant time. In the main, he supported the evidence given, by the Station Master and stated that when the train reached Karota, the cabin man cried out that a wagon was on fire. This wagon was fifth from the engine and it was emitting smoke slightly from the southern side and some flames were also visible. The Railway staff attempted to extinguish the fire by means of water and sand. There was a water tank at the Railway Station, and that was also harnessed into use for putting out the fire. He could not find any apparent cause of fire. Karota was 23 miles from Patna, which was the nearest station where the fire-brigade was available. He, however admitted in cross-examination that the other side of the wagon was opened about half an hour after, but the fire had not reached that door till then. At first, there were about 15 persons who were engaged in extinguishing the fire, but later on the number rose. About 4/5 persons were bringing water from the tank and the other people were actually throwing the same on the fire. D.W. 7, Sehdev, was the driver of the train. According to him, when the train was taken to the loop line at Karota, he learnt that one wagon was on fire. Smoke was coming out of the same. He detached the engine and took it on the other line adjacent to the wagon so that water from the engine could be thrown with the help of the danger pipe into the wagon, the doors of which had been opened in the meantime. Due to the arrival of the Punjab Mail, he had to again remove the engine on the loop line. Water, sand and gas were used for extinguishing the fire. There was a spark-arrestor in the engine and, therefore no sparks emanated from it. The water was thrown for over an hour from the engine. Both the doors of the wagon were opened when he started throwing water. After 15/20 minutes of the arrival of the train, he had started doing so. The fire could not be controlled even with the help of the danger pipe. He, however, admitted that he was not directed to again bring back the engine to the main line for extinguishing the fire, though his engine had still some more water in it. On 15-4-1957 at 6.40 A.M. he took the train along with the wagon in question, though the goods had already been removed therefrom. D.W. 5, B.D. Singh, was the Head Train Examiner at Mokama on 14/15-4-1957. He got the message by telephone through, the Assistant Station Master, Mokama that the wagon, in question which was on fire at Karota Railway Station should be detached. He did the needful when the train reached Mokama at 9 A.M. on 15-4-1957. There was no hot axle in the wagon, because the cotton waste was unaffected. He was the first person to open the axle boxes. He also examined the wagon and there were no crevices or holes in the same. The Station Master, Mokama, was with him when he examined the axle boxes. The floor of the wagon was of steel. It was intact and did not show any signs of being burnt or damaged. There was no sign of any extraneous igniting material therein. The goods did not catch fire through hot axis. D.W. 4, N.N. Bhatacharya, was the Inspector, Railway Police Force, at Dinapur. He stated that he received the intimation from the control on the night of 14-4-1957 at 12 to reach Karota Railway Station. He arranged for fire fighters at Fatua Railway Station. He reached Karota early in the morning at about 1-11 A.M. The people form Fatua took with them the fire-fighting arrangements. The fire was not completely extinguished when they reached the spot and they also then put into service their own fire-extinguishing arrangements. There was no hole in the wagon from which anything could be inserted from outside to ignite the goods. In cross-examination, he deposed that the Train Examiner came after he reached the spot and he also examined the wagon. The Fatua staff reached at 1.40 A.M., when the Station Master was also present at the spot. The fire-brigade from Fatua arrived at about 2 A.M. on 15-4-1957. Mehar Singh, Claims Inspector, Hissar, as D.W. 8, stated that the goods in question were hooked partly in wooden cases and partly in bales. There were iron hoops around the bales, and the cases which were fitted with iron nails. He had not come across any case where fire started without hot axle or without any extraneous matter being put in the wagon. No case had come to his notice where fire had been caused by mere friction alone.
11. The trial Judge found that the wagon in the goods were placed was not defective; that there was no hot axle; that the engine had a spark-arrestor, which was quite in order; that the cause of the fire could not be traced and it must be regarded as accidental; and that the Railway employees were not guilty of negligence with regard to the transportation of the goods up to the time the fire was discovered. He, however, came to the conclusion that the Station Staff at Karota was guilty of having failed to take two of the essential steps mentioned below for controlling the fire and saving the goods, which were yet unaffected by it, when the same was discovered :-
1. that the door of the wagon on the northern side was opened after about half an hour of the arrival of the train, because, if it had been opened earlier, the unaffected goods could have been easily removed from the wagon and
2. that after the passing of the Mail Train, the engine of the goods train should again have been brought back on the main line and water thrown into the wagon with the danger pipe, because, admittedly, there was still some water in the engine. The Railway staff knew that it would take some time before the fire-brigade from Patna would arrive at the spot and it was therefore, necessary that water should have continued being thrown from the engine, especially when this arrangement had already proved useful in reducing the fire.
On these findings, the learned Judge held that this was a case of part negligence on the part of the Railway employees in not taking steps to mitigate the damages.
12. Learned counsel for the Union of India contended that in such like contingencies when the wagon is actually on fire, one could not expect perfect presence of mind, accurate judgment and promptitude from the Railway employees. If in a sudden emergency, a man does something which he might, as he knew the circumstances, reasonably think proper, he is not to be held guilty of negligence, because on review of the facts it can be seen that the course he had adopted was, in fact, not the best For this submission, he placed his reliance on the Privy Council decision in Dawrka Nath v. Rivers Steam Navigation Co. Ltd., AIR 1917 PC 173 and Union of India v. Raigarh Jute Mills Ltd., AIR 1961 Madh-Pra 251. According to the learned counsel, therefore, the trial Judge was in error in holding that the railway employees were guilty of part negligence, when they failed to take two steps enumerated above. The fire was purely accidental and all possible efforts were made by the railway staff to extinguish it. Under these circumstances, the Railway Administration was not responsible for any loss or damage, especially when these goods were booked at owners risk.
13. There is no force in this submission. When a wagon is on fire, the ordinary reaction of any person, who is extinguishing the same, would be to throw open all its doors so that, firstly, it becomes easier to put down the fire and, secondly, the unaffected goods can be removed as far as possible and the extent of the damage thus lessened. It is undisputed that the fire was being reduced by throwing of the water from the engine. The Railway employees knew that it would take quite some time before the fire-brigade arrived from Patna. Naturally, therefore, they should have, in the meantime, continued pouring water in the wagon from the engine. This would have certainly reduced the extent of the damage to the goods.
14. Learned counsel for the Company, on the other hand, submitted that the Railway Administration was guilty in not producing the entire evidence that was in their possession. The plaintiff-company had made a number of applications under O. 11, R. 12, O. 11, R. 18 and Order 12, Rule 8, Civil Procedure Code, for the discovery, inspection and production of certain documents, but the same were not produced by them. In this connection, he particularly emphasised (1) the report of the enquiry conducted by the Railway officials and (2) the report of the Train Examiner, who examined the wagon at Karota. He also submitted that all the witnesses before the Board of Enquiry should have been produced by the Railway Administration. He further submitted that the cabin man at Khusropur Railway Station, who was the first person to notice the smoke in the wagon and the Train Examiner, who had examined the wagon at Karota, should have been examined. A strong adverse inference should be drawn against the Railway Administration for their failure to produce these documents and witnesses.
15. So far as the enquiry report and the evidence of the witnesses produced before the Enquiry Board is concerned, learned counsel for the Union of India stated that they were prepared to put in an uncertified copy of the report, but it was not accepted by the learned trial Judge, presumably, on the objection of the counsel for the plaintiff. This would be clear from the order of the Court dated 9-10-1959. If the plaintiff was really making any point out of this report, they would have allowed the same to be brought on the record. The counsel further submitted that it was not necessary to produce the persons who had appeared before the Enquiry Board. Regarding the Train Examiners report and his own evidence, the counsel for the Union of India stated that the wagon reached Mokama Railway Station at 9 A.M. on 15-4-1957. That means the wagon must have left Karota soon after the incident and, therefore, it was not a case of hot axle. The report of the Train Examiner or his evidence would not have advanced the case of the plaintiff in any way. So far as the evidence of the cabin-man at Khusropur is concerned, his evidence, the learned counsel submitted, was not necessary because he merely noticed smoke coming out of a wagon and he informed about the same to the cabin man at Karota.
16. After hearing the counsel for the parties, I find that there is no force in the contentions raised by the learned counsel for the Company. The documents and the witnesses relied upon by the plaintiff would not have to any way advanced their case, as has been explained by the learned counsel for the Union of India.
17. From the above, it is clear that the learned trial Judge was right in holding that the Railway staff was partly responsible for the damage caused to the goods due to their negligence.
18. The next question for decision is as to how much damage had the plaintiff suffered and to what extent is the Company entitled to the same as against the defendant.
19. There does not appear to be any serious dispute about the total damage caused to the goods. The assessment was done by Messrs. Lardner North and Company, Calcutta, in the presence of Shri A. Rai Chowdhry, Special Claims Inspector of the Railway. This was done when the goods arrived at Calcutta. No reason has been shown as to why this Surveyor should not be believed on this point, especially, when the defendant had not produced any evidence to show that the damage was less than what had been assessed. It has been found by the trial Court that the total loss as calculated by the Surveyor, including the proportionate waste of Railway freight, was Rs. 28,880-5-4. This calculation was not challenged by any of the parties before us. Therefore, agreeing with the trial Court, I hold that this was the total damage suffered by the plaintiff.
20. Now the point arises as to what extent is the defendant liable to make good this loss. The trial Judge has found that the defendant was partly negligent for not opening the northern door of the wagon at the proper time and not bringing the engine back, after the Mail Train had passed, to throw water in the wagon. He further found that but for this negligence, the Railway staff could have removed some more goods, apart from the one-fourth goods which, according to the statement of the Station Master, Karota, had been unloaded before the fire had spread out to the northern door of the wagon. He, therefore, held that the defendant was liable for about 25 per cent of the total damage, which accrued to the plaintiff. It is true, as held by the trial Judge, that in a case of this kind, a certain amount of conjecture has to be used, because it is difficult to assess the exact damage caused of the defendants negligence. It has not been shown by the learned counsel for the parties that the extent of the liability as determined by the trial Judge was so unreasonable as to call for an interference by this Court. Further, no serious flaw was found by the learned counsel in the reasoning of the trial Judge in coming to this finding. In my view, therefore, the finding of the trial Court on this point is correct and cannot be disturbed.
21. I may, however, mention that the trial Judge in his judgment has not said anything about the question of costs. In my opinion, since the plaintiffs suit has been decreed for Rs. 7,200/-, there is no reason why it should be deprived of its proportionate costs.
22. The result is that the appeal filed by the Union of India (Regular First Appeal No. 37 of 1960) is dismissed with no order as to costs, while that of the plaintiff-Company (Regular First Appeal No. 38 of 1960) is partly accepted to this extent that the plaintiffs suit is decreed for Rs. 7,200/-, as held by the trial Judge, but with proportionate costs throughout.
23. DULAT, J. :- I agree.
Appeal dismissed.