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Phulchand Khandelwal And Others v. The Governor General For India In Council .
Case Summary — Second Appeal (Mukharji, J.)
Factual and Procedural Background
The plaintiffs filed Money Suit No. 172 of 1944 in the Court of the Subordinate Judge at Dhanbad, claiming a total of Rs. 2,679-4-0 for non-delivery of two consignments of goods despatched by them (one from Manpur and another from Gaya) to Dhanbad. The defendant was the Governor-General for India in Council, representing the East Indian Railway Administration. Of the two claims, Rs. 1,945 related to one consignment and Rs. 734-4-0 to the other; the plaintiffs did not press the latter claim. The Subordinate Judge decreed the plaintiffs' suit in respect of the Rs. 1,945 claim. The defendant admitted that the goods had been handed over to the Railway Company, reached Dhanbad and were kept in the goods-shed there, and that they were not delivered to the plaintiffs.
On appeal to the District Judge of Manbhum the defendant advanced two principal points: (1) that the requirements of Section 80 of the Code of Civil Procedure (CPC) had not been complied with; and (2) that there was nothing on the record to show negligence on the part of the Railway Company, reliance being placed on the risk-note (Form A) under which the goods were booked. The District Judge concluded that Section 80 had not been complied with and that the evidence did not conclusively establish negligence; he allowed the appeal and dismissed the suit. The plaintiffs brought this second appeal against that reversal.
Legal Issues Presented
- Whether the District Judge was correct in holding that the plaintiffs had not complied with the requisites of Section 80, CPC (as urged by the defendant).
- Whether the finding of the District Judge that there was no negligence by the Railway Company is a finding of pure fact, and therefore binding in second appeal, or whether it involves questions of law or mixed questions of fact and law permitting scrutiny in second appeal.
- Whether the evidence on record, including the defendant's own witnesses and documentary material (e.g., the risk-note), is sufficient to relieve a common carrier of liability for non-delivery.
Arguments of the Parties
Appellants' Arguments
- The first appellate court (District Judge) failed to give due regard to the pleadings; the plaint alleged negligence and misconduct by the Railway Administration (para. 6) and stated that notices under Section 80, CPC had been sent and served (para. 8).
- The written statement admitted booking, arrival at destination and non-delivery; notices under Section 80 relating to the first consignment were admitted as served; the written statement even expressed willingness to pay reasonable compensation (para. 9).
- The only challenges in the written statement related to the recorded weight (said to make the plaintiffs' contents improbable) and the claimed prices being excessive; these did not negative negligence.
- On the evidence adduced by the defendant itself, a clear case of negligence is established.
Respondent's Arguments
- It is not open to the plaintiffs in a second appeal to challenge the lower court's finding of fact as to negligence; if the question whether there was negligence is purely one of fact, that finding is binding on the appellate court and the second appeal must fail.
- The defendant relied on the risk-note (Form A) and asserted that there was nothing on record to show negligence by the Railway Company.
- Before the District Judge the defendant also contended non-compliance with Section 80, CPC.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Maung Kyaing v. P.L.T.A.R. Chettyar Firm, 116 I.C. 470 : A.I.R. (16) 1929 Rang. 17 | Negligence is a deduction from facts; appellate courts are bound by lower courts' findings of fact but not by their deductions/conclusions from those facts. | The Court relied on Baguley, J.'s observation to treat the issue of whether facts constituted negligence as susceptible to review in a second appeal where the conclusion was a deduction from facts. |
| Durga Chowdhrani v. Jewahir Singh Choiodhri, 17 I.A. 122 : (18 Cal. 23) | Cited as authority in relation to the distinction between findings of fact and deductions from facts. | Referred by the Court (through the Maung Kyaing citation) to support the proposition that conclusions drawn from facts may be examined on appeal. |
| Ramgopal v. Shamskhaton, 19 I.A. 228 : (20 Cal. 93 (P.C.)) | The first Court's decision as to facts is final, but the soundness of conclusions (which may involve law) can be questioned by a Court in second appeal. | Used to justify review of the District Judge's conclusion on negligence (as a conclusion may involve questions of law or mixed law and fact). |
| Akhil Chandra Shaha v. I.G.N. & Ry. Co. Ltd., 21 C.L.J. 565 : A.I.R. (3) 1916 Cal. 647 | If the contention is that there is no evidence of negligence, that is a question of law; whether the evidence is sufficient to justify an inference of negligence is a question of fact. Also held that a common carrier is prima facie liable (insurer-like) and the burden of proving absence of negligence lies on the carrier. | The Court applied these principles to hold that the burden lay on the Railway to show absence of negligence and that the loss in custody established a prima facie case of negligence requiring explanation by the carrier. |
| Nafar Chandra Pal Chowdhury v. Shukur Sheikh, 46 Cal. 189 : A.I.R. (5) 1918 P.C. 92 | Observations on the difficulty of disentangling questions of law and fact; legal effect of a proved fact is a question of law; whether a fact is proved is a question of fact. | Referred to illustrate the distinction between law and fact and to support examining the District Judge's conclusion on negligence in second appeal. |
| S. Ananda Rao v. Venkatadri Appa Rao, A.I.R. (12) 1925 Mad. 258 : 85 I.C. 812 | Gross negligence is a mixed question of law and fact. | Invoked to support the proposition that issues of negligence (particularly gross negligence) may involve mixed questions and therefore be open to review in a second appeal. |
Court's Reasoning and Analysis
The Court first considered whether the District Judge's finding that there was no negligence was a pure question of fact (which would be binding in second appeal) or whether it involved law or mixed questions permitting appellate scrutiny. The Court surveyed authorities (including Maung Kyaing, Akhil Chandra Shaha, Nafar Chandra Pal Chowdhury, Ramgopal and S. Ananda Rao) to explain that while pure questions of fact are final, the legal effect or proper conclusion to be drawn from established facts may involve law or mixed questions and thus be examinable in a second appeal.
The Court then examined the evidence. It accepted the defendant's own admissions that the goods were booked, arrived at Dhanbad and were kept in the goods-shed, and that they were not delivered. Evidence led for the defendant indicated that the bundle containing the dhotis etc. was missing from a goods-shed that was under lock and key; there was no dacoity or fire and the lock was intact. The Court found it difficult to explain how the bundle could be missing under those circumstances.
Applying the principle (from Akhil Chandra Shaha) that a common carrier bears the burden of proving absence of negligence because loss in custody is prima facie proof of negligence, the Court held that the Railway had not offered any explanation capable of exonerating it. The Court rejected the \"spirited away\" theory as untenable in law and fact. It observed that the only reasonable conclusion is that the goods were lost due to negligence of the Railway (and possibly by Railway employees), and therefore the defendant was liable to pay compensation.
On Section 80, CPC, the Court noted that the learned advocate for the respondent had nothing to urge in relation to the claim that was pressed (the first consignment); the written statement only challenged notice as to the other (unpressed) consignment. As to quantum, the respondent had not contended before the District Judge that the amount awarded by the Subordinate Judge was excessive.
Holding and Implications
Holding: The appeal is ALLOWED. The judgment and decree of the learned District Judge (which had allowed the defendant's appeal and dismissed the suit) are set aside.
Implications:
- Direct effect on the parties: The Court concluded that the Railway (defendant) is liable to pay compensation for the non-delivery of the goods in respect of the consignment for which the plaintiffs pressed their claim; the District Judge's dismissal is set aside and the plaintiffs' decree as originally granted by the Subordinate Judge (in respect of the pressed claim) stands restored implicitly by setting aside the District Judge's judgment.
- Costs: In the circumstances the parties are to bear their respective costs of this Court.
- Precedential effect: The opinion applied and explained existing authorities concerning the distinction between findings of fact and conclusions of law or mixed questions; the Court did not state that it was creating a new precedent beyond applying those principles. No novel legal rule was announced beyond the application of cited authorities to the facts of this case.
Disposition: Appeal allowed.
Mukharji, J.:— This second appeal is by the plaintiffs against a judgment of reversal.
2. The plaintiffs filed money suit No. 172 of 1944 in the Court of the Subordinate Judge at Dhanbad claiming Rs. 2679-4-0 for non-delivery of two consignments of goods despatched by them, one from Manpur and another from Gaya, the destination in both the cases being the same, namely, Dhanbad. The defendant in the suit was the Governor-General for India in Council representing the East Indian Railway Administration. The claim with regard to one of the consignments was Rs. 1945, while with regard to the other it was Rs. 734-4-0, the two making up a total of Rs. 2679-4-0 as already mentioned. So far as the claim for Rs. 734-4-0 was concerned, it was not pressed. The learned Subordinate Judge decreed the suit of the plaintiffs appellants so far as the claim for Rs. 1945 was concerned. It was admitted by the defendant that the goods were made over to the Railway Company and that they reached their destination and were kept in the goods-shed at Dhanbad. Non-delivery was also admitted.
3. In appeal before the learned District Judge of Manbhum two points were pressed on behalf of the defendant. The first point pressed before him was that the provisions of Section 80 of the CPC were not complied with. The other point urged before the first appellate Court was that there was nothing on the record to show that there was negligence on the part of the Railway Company. In this connection the risk-note (Form A) under which the goods were booked was relied on. The learned District Judge while dealing with the first point urged before him observed that the provisions of Section 80 of the CPC, were not complied with. He also held that the evidence did not conclusively establish that there was negligence on the part of the defendant. In the result the learned District Judge allowed the appeal and dismissed the suit. Hence this second appeal.
4. On behalf of the appellants it has been contended that the learned first appellate Court decided the appeal without paying due regard to the pleadings of the parties. One of the important features of the plaint is that in para. 6 it is clearly stated that the non-delivery of the goods was due to the negligence and misconduct on the part of the Railway Administration and its employees. In para. 8 of the plaint there is mention of notices under Section 80 of the CPC having been duly sent to the defendant claiming compensation for the loss of the goods. It is also stated therein that these notices were duly served. In the written statement filed on behalf of the defendant it is admitted that the goods in question were booked, that they arrived at their destination and that they could not be delivered. Notices under Section 80 of the CPC relating to the first consignment was admitted to have been served. As regards the other consignment, the claim in respect of which was not pressed, it was stated in para. 7 of the written statement that no such notice was received. Paragraph 9 of the written statement is important. In this paragraph the defendant expressed his readiness and willingness to pay reasonable compensation for the loss of the consignment. The only thing that was challenged was that the weight of the consignment being only 2 maunds and 20 seers as recorded in the relevant railway receipt, it is not probable that the consignment contained 100 pairs of dhotis and 22 sheets of long-doth as alleged by the plaintiffs. The price claimed for the dhotis and long-cloth was also said to be “high and exorbitant.”
5. The learned advocate for the appellants has contended that even upon the evidence adduced by the defendant respondent a clear case of negligence is made out. Mr. S.N Bose for the respondent has contended that it is not open to the plaintiffs in second appeal to challenge the finding of fact as to whether there was negligence or not. It has, therefore, to be seen whether the finding as to negligence is purely a question of fact. If it is so, then the finding is binding on this Court and the appeal must be dismissed. In the case of Maung Kyaing v. P.L.T.A.R Chettyar Firm, reported in 116 I.C 470 : (A.I.R (16) 1929 Rang. 17), a similar preliminary point was raised before Baguley, J. in the Rangoon High Court. The learned Judge in dealing with the question observed as follows at p. 472:
“There is no such thing as ‘legal negligence’, and ‘negligence’ is, I think, nowhere defined. Whether certain facts constitute negligence is a deduction from those facts, and, although I am bound by the findings of fact by the lower Appellate Court, I am not bound by its deductions from those facts. On this point I would refer to Durga Chowdhrani v. Jewahir Singh Choiodhri, 17 I.A 122 : (18 Cal. 23) and Ramgopal v. Shamskhaton, 19 I.A 228 : (20 Cal. 93 (P.C).) The facts, I have to take from the lower Appellate Court.”
6. In the case of Akhil Chandra Shaha v. I.G.N & Ry. Co. Ltd., reported in 21 C.L.J 565 : (A.I.R (3) 1916 Cal. 647), a Division Bench of the Calcutta High Court held that if the contention is that there is no evidence of negligence, the question is one of law for the Judge to decide, but the question as to whether the evidence is sufficient to justify the inference of negligence is one of fact. There can be no doubt that the question as to what is purely a question of fact and what is a mixed question of law and fact is not always easy to decide. Their Lordships of the Judicial Committee made the following observations in the case of Nafar Chandra Pal Chowdhury v. Shukur Sheikh, reported in 46 Cal. 189 : (A.I.R (5) 1918 P.C 92):
“Questions of law and of fact are sometimes difficult to disentangle. The proper legal effect of a proved fact is essentially a question of law; so also is the question of admissibility of evidence, and the question of whether any evidence has been offered on one side or the other: but the question whether the fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact.”
7. In another Privy Council case, reported in 20 Cal. 93 : (19 I.A 228), Ramgopal v. Shamskhaton (referred to by Baguley, J. above) their Lordships of the Privy Council held that the first Court's decision as to the effect of the evidence must stand final as to facts; but the soundness of conclusions may involve matter of law and may be questioned by a Court of second appeal. A Single Judge of the Madras High Court (Devadoss J.) had to consider the question of gross negligence in the case of S. Ananda Rao v. Venkatadri Appa Rao, reported in A.I.R (12) 1925 Mad. 258 : (85 I.C 812). It was held that gross negligence is a mixed question of law and fact. In the case with which we are concerned evidence was led as to how the goods were kept in the custody of the Railway Company. From this evidence a conclusion has been drawn by the learned District Judge that there was no negligence. In my opinion, the question is not purely one of fact and it can be examined in second appeal to find out whether the conclusion of the learned District Judge exonerating the Railway Company is right.
8. The evidence adduced on behalf of the defendant shows that the goods in question were in the charge of the Watch and Ward Department of the Railway at Dhanbad. D.W 3, one of the Railway employees, stated that the bundle containing the dhotis etc. was missing from the goods-shed although it was under lock and key, and there was no dacoity or the or fire and the lock was intact. How in such circumstances the bundle could be found missing from the Railway shed is difficult to understand. As held in Akhil Chandra Shah's case: (21 C.L.J 665 : A.I.R (3) 1916 Cal. 647) referred to above, the burden of proof of absence of negligence is upon the common carrier, on the theory that the loss or damage to the goods is prima facie proof of negligence. Their Lordships of the Calcutta High Court further held in this case that a common carrier in this country is liable as an insurer, that is, he is responsible for the safety of the goods entrusted to him in all events except when loss or injury arises from act of God or enemies of the State. Such liability for loss or injury in respect of the goods carried may be varied by contract. In the present case there was no defence that according to the terms of the contract the defendant had no liability at all.
9. The learned District Judge has observed that the defendant respondent could have no liability in this case unless the circumstances conclusively prove that there was negligence. What the learned District Judge really meant is somewhat difficult to appreciate. The goods were admittedly in the custody of the Railway Company and it is also admitted that they were not delivered. No explanation has been offered as to what could have happened to the goods. The only possible theory which could exonerate the Railway Company is the theory that the goods were spirited away. Such a theory is clearly untenable in law as well as in fact. The only conclusion at which one can or should arrive in this case is that the goods were lost due to negligence on the part of the Railway. This is the least that can be said, for it is also possible that in these days of scarcity of cloth the bale in question was removed by some of the Railway employees themselves. In my opinion, the defendant is clearly liable to pay compensation in this case. As to the amount of compensation it was not the case of the respondent before the learned District Judge that the amount awarded by the learned Subordinate Judge is excessive. As for the notice under Section 80 of the CPC, the learned Advocate for the respondent had nothing to urge. The written statement, as pointed out above, took exception on the question of notice only so far as the other consignment was concerned.
10. In the result, the appeal is allowed and the judgment and decree of the learned District Judge are set aside. In the circumstances of the case the parties will bear their costs of this Court.
Manohar Lall, J.:— I agree.
D.S
11. Appeal allowed.
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