Judgement

. - This is a plaintiffs appeal against the appellate decree of the learned District Judge of Delhi whereby he disallowed the claim of the plaintiff for damages for loss of one bale of cloth. The plaintiffs case is that be took two bales of cloth to the goods-shed of the E.I. Railway for despatch to Kashipur. According to him he got on 19th October 1944 a forwarding note P.W.19/1 and the goods were passed into the railway premises. They were left in the railway shed over-night and the next day when the booking clerk had to weigh them it was found that there was only one bale and the other bale was missing. The case for the railway on the other hand is that there was no delivery to them, that mere passing of the goods into the premises of the railway does not amount to delivery within S.149, Contract Act, and that as a matter of fact only one bale was tendered to them and they are not liable for any loss. The learned Subordinate Judge, who tried the suit, found that two bales of cloth were delivered to the railway for carriage and that one had got lost, the responsibility for which was on the railway. He found the damages to be Rs.878/13/4 and decreed the suit. An appeal against this was taken to the learned District Judge who found that the delivery of two bales had not been established and therefore he dismissed the plaintiffs suit. Against this decree the plaintiff has come up in second appeal to this Court.

2. The procedure which was followed in 1944 for the tendering of goods for despatch as can be ascertained from evidence appears to be this: A day before the goods had to be despatched the consignor or his agent would fill in a document called "forwarding note" which would be handed over to the gateman or a clerk who would give him a slip mentioning the consignors name, the number of packages and the destination. On the day following, the goods would be taken to the gate, the slip would be returned to the clerk who would give the forwarding note duly signed and allow the goods to pass into the railway premises. The goods would then be taken to the clerk in charge of booking and there tendered to him. He would check the goods according to the forwarding note and give a mark which is entered in the register. That mark would then be put on the goods to be despatched and that according to the evidence would constitute delivery to the Railway.

3. In this appeal the point really is a short one: whether the passing of the goods through, the gate and issuing by the gate-keeper of a, forwarding note duly signed by him to the consignor amounts to delivery to the railway or the consignor has to do something more and has to tender the goods to some other person or has to do some other act in order to make the delivery effective to impose on the railway the liability for any loss if it takes place. In this connection it is important to find out exactly what happened in this case and for that purpose it may perhaps be necessary to refer to the evidence of Kishan Mohan P.W.21 who was the forwarding agent. According to him on 19th August 1944 he filled up the forwarding note P.W.19/1 and handed it over to the clerk who gave him a slip mentioning the consignors name, the number of packages and the destination. On the following day he went with the goods to the gate ofthe E.I.R. goods-shed. He banded over the slip to the thelewala and asked him to give it to the clerk in charge of the gate. Goods were allowed to pass and the forwarding note was handed over to him after it had been signed and the man in charge at the gate told him that he (the witness) should put the goods in the G.M.R. goods-shed.

4. Some controversy has been raised as to the date when these goods were actually sent to the railway goods-shed. According to the submission of the learned counsel for the appellant goods had been sent on 19th and had been left in the goods-shed over-night. The learned advocate for the respondent, on the other hand, submits that this was really on 20th and there was no leaving the goods over-night and in support he relies on the plaint as well as the notice sent by the plaintiff under S.80, Civil Procedure Code, in both of which 20th of August is mentioned as the date when the goods were tendered. I am not very much impressed by the argument with regard to the plaint because although the plaint mentions 20th, the written statement mentions 19th as the date on which the goods were actually sent to the railway premises. But the notice by the plaintiff under S.80, Civil Procedure Code, and the evidence of P.W.21, Kishan Mohan make it fairly clear that the goods were actually sent on 20th. The story of the goods having remained in the goods-shed over-night, in my opinion, has not been substantiated. This is made clearer by what has been stated by Kishan Mohan later on, because according to him the same day at about 1 Oclock he left the goods near one of the weighing machines and went to the next one. At about 5 the same afternoon, he asked the booking clerk for the railway receipt and then at about 6 p.m. it was found that there was only one bale and not two. In this connection I may also mention on that D.W.1 Suraj Parkash, the goods clerk whose evidence seems to have been accepted by the learned District Judge, has also stated that only one bale was tendered to him and that as the forwarding note mentioned two he was not prepared to give a mark and there the matter remained except for complaints which were made by the plaintiffs agent to the Head Booking Clerk.

5. When it was discovered that there was only one bale and not two, search was made in the wagons which were being loaded and the wagons which had been loaded were stopped and the next day they were searched, but the missing bale remained missing. This may throw considerable doubt on the question whether two bales were ever taken into the shed. It would be destructive of the argument of the plaintiffs learned counsel that as according to rules goods taken into the railway premises could not he brought out and the signing by the clerk and delivery of the forwarding note to the consignor is presumptive proof of the goods having been taken into the premises, the loss of any such article while in the railway premises should be proof of negligence of the railway and make it liable in damages. In my opinion this argument as an abstract proposition is devoid of force.

6. According to S.72, Railways Act the liability, for loss etc., of a railway administration is the same as that of a bailee under S.152 and S.161, Contract Act, but before a liability can arise against the railway it is necessary to find out at what time their liability commences and for this purpose I would refer to paragraph 23 at page 17 of the 4th volume of Halsburys Laws of England, Hailsham Edition, which says:

"The duties and liability of a carrier do not begin until he has accepted the goods for carriage. He may accept them either personally, or by his agent or servant with authority to accept them, or he may impliedly accept them as where he permits goods to be placed by another in the usual place for carriage."

In the present case, the learned counsel for the appellant has strongly relied on the forwarding note and a rule contained in D.W.2/1 which says that signing and dating of forwarding note is proof of passing the relevant goods into the railway premises. That may be so. All that this contemplates is that the signing and dating of the forwarding note will be evidence of the fact that goods had passed into the premises. But is that enough for the purpose of holding that the goods have been delivered to a parson authorised on behalf of the railway? In support of his contention the learned counsel relied on Jalim Singh v. Secretary of State, 31 Cal. 951: (8 C.W.N. 725) which was a case where goods had been marked and had remained in possession of the railway for three days, the booking having been interrupted by the death of the Queen-Empress. It was observed by the learned Judge:

"I take delivery in that section (meaning S.72, Railways Act) to refer to a physical event, an important element of which is that whatever is delivered passes from the physical custody of one man to the physical custody of another."

The learned Judge goes on to observe:

"I think it is not unreasonable that as long as the consignors servant is seeing the goods through the process of booking, marking and weighing the Railway Company should not be responsible; but that the Company should become responsible, if the booking process is interrupted for any substantial time and the goods are left in their possession, as in such a case they practically must be."

With these observations I respectfully agree. Now, this case will not help the plaintiff because according to the facts which I have found and according to the evidence of D.W.1 the physical custody of the goods never passed from the plaintiff to any railway servant or agent of the railway. The next case relied upon is Moolji Sicka and Co., v. B.N. Rly, Co. Ltd., AIR (19) 1932 Cal.257: (137 I.C. 445). There the goods had been stacked in the goods-shed with the knowledge and consent of the railway servants and that was found to be a good delivery to the railway. This case also does not support the plaintiff as no delivery to a railway servant has been proved. Another case relied upon is Secretary of State v. Sheobhagwan Chiranjilal, 58 ALL. 576: (AIR (23) 1936 ALL. 69). It was held there, that the goods were brought with the permission of the railway and stored in the goods shed and this was held to be a sufficient delivery within the meaning of S.149, Contract Act. The learned counsel also relied on Governor-General in Council v. Kabir Ram., AIR (35) 1948 Pat. 345: (27 Pat. 151), but that only deals with the question of onus after the goods are found to have been delivered to the railway company.

7. In my opinion, the rule which will apply to this case is found in Hardayal Ram Dass Ray v. B.N.W.Rl. 8 Pat. 808: (AIR (16) 1929 Pat. 296) where it was found as a fact that the bags had neither been marked nor weighed and all that had happened was that the consignment notes had been made over to the marker who used also to discharge the duties of the Goods Clerk when the latter was busy otherwise. In these circumstances, it was held that the goods had not been put in possession of the railway company and that the mere acceptance of the consignment notes was not equivalent to acceptance of the goods by the Railway. In the case that I have to decide the evidence only shows that goods were allowed to pass into the railway premises. There is no reliable evidence to show that goods were as a matter of fact with the permission express or implied, put at any place in the goods-shed or there was an express delivery of the goods to the railway by being made over to a person authorised or deposited at a place reserved for or usually used for this purpose. The learned advocate for the respondent also relied on Lachmi Narain v. B.B. and C.I. Rly. Co., 45 ALL. 235: (AIR:(10) 1923 ALL. 449) where the facts were that certain goods were brought to a railway station for despatch and a forwarding note was presented to the loading clerk, who marked a number on it. The clerk then told the consignor to come the next day for the receipt and have a number put on the goods corresponding to the forwarding note. Meanwhile the goods where deposited in a tin shed, where ordinarily that class of goods was kept. The goods were stolen at night and in such a case it was held that there had been no delivery to the railway within the meaning of S.149, Contract Act. I may perhaps not be prepared to go as far as this case and need not, in view of my findings, discuss this case at any length but in the circumstances of this case where I find that all that happened was that the goods were allowed to pass into the railway premises but where the finding of the learned District Judge is and where I find that no reliable evidence has been produced showing that the goods were made over to any person authorised by the railway to receive them no liabilty of the railway arises.

8. As the rights of the consignors as well as the liabilities of common carriers i.e., the railways in this country, are matters of some importance I have endeavoured to deal with this case at some length because I do not want that fraudulent claims should be made against the railways or that honest consignors should lose their goods through the negligence of the railway.

9. In the present case, I find that beyond the fact that the gate clerk of the Railway signed the forwarding note and allowed the goods to pass into the railway premises, nothing has been proved to establish the "passing from the physical custody" of the plaintiffs agent to "the physical custody" of the railway or its agent nor was there any implied acceptance of goods nor any thing done which would bring it within the rule mentioned in Halsburys Laws of England mentioned above. And stage was never reached where the liability (in case of loss) of the carrier could commence.

10. In the result, this appeal fails. But taking into consideration the circumstances I make no order as to costs in this Court.

Appeal dismissed.