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Vithoba Sayanna Bhandari Vs. the Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 659 of 1952
Judge
Reported in(1957)59BOMLR117
AppellantVithoba Sayanna Bhandari
RespondentThe Union of India (Uoi)
DispositionAppeal allowed
Excerpt:
indian railways act (ix of 1890), sections 75(1), 58(1), 72(1)-'declaration' under section 75(1), meaning of-whether section 7.5(1) requires a separate declaration-information in writing, given by person delivering goods for carriage, stating nature, description and value of such goods whether constitutes declaration within section 75(1).;'declaration' under section 75(1) of the indian railways act, 1890, means a communication by a person delivering the parcel of goods to the railway administration for carriage by railway, telling the administration what the nature, description and value of the goods so delivered are, so that special freight, if leviable, may be levied. this communication must be in writing, but it may be in any form, so long as it gives the above information to the.....vyas, j.1. this is an appeal by the plaintiff from a dismissal of his suit and it raises a point of law. the point of law raised is whether the declaration referred to in section 75, sub-section (1), of the indian railways act, is a declaration to be separately made under that section or whether the statement of account and description of goods as contained in the permit and the statement of the value of the goods as mentioned in the invoice would together be tantamount to a declaration under section 75, sub-section (1), when the said permit and invoice are presented by a person delivering the goods to the railway administration for their carriage by railway. the point of law has arisen in this way.2. the plaintiff has filed a suit against the union of india claiming an amount of rs......
Judgment:

Vyas, J.

1. This is an appeal by the plaintiff from a dismissal of his suit and it raises a point of law. The point of law raised is whether the declaration referred to in Section 75, Sub-section (1), of the Indian Railways Act, is a declaration to be separately made under that section or whether the statement of account and description of goods as contained in the permit and the statement of the value of the goods as mentioned in the invoice would together be tantamount to a declaration under Section 75, Sub-section (1), when the said permit and invoice are presented by a person delivering the goods to the railway administration for their carriage by railway. The point of law has arisen in this way.

2. The plaintiff has filed a suit against the Union of India claiming an amount of Rs. 6,227-1-6 on account of the non-delivery of a parcel of certain goods which were booked from Coimbatore, a railway station oh the South Indian Railway, to the plaintiff at Sholapur, a railway station on the then G.I.P. Railway. The amount of Rs. 6,227-1-6 is arrived at in this way : Rs. 5,615-9-6 as the invoice price of the goods consigned; Rs. 561-8-0 as the usual loss of profit and Rs. 50 as costs of notice. The plaintiff's contention is that a parcel containing 6131/2 yards of hand-woven cloth as detailed in the invoice attached to the plaint was dispatched to him from Coimbatore. He is a resident of Sholapur and the parcel was consigned to him from Coimbatore, the destination of the parcel being Sholapur. This parcel was despatched under the Parcel Way Bill No. 272/21. It was despatched from Coimbatore on December 6, 1946. Before the parcel could be accepted by the railway administration at Coimbatore, the person delivering the parcel to the administration was required to produce before it a Government permit. Such a permit was obtained by the consignor in this case. It bore No. 84784. The plaintiff's case is that the abovementioned permit and the invoice of the goods consigned showed the nature, the quantity and the value of the goods consigned. After the permit and the invoice were shown to the booking clerk at the railway station of Coimbatore, a railway receipt was prepared and handed over to the consignor. The railway receipt was to be forwarded to the plaintiff who was the consignee. The plaintiff's contention is that the abovementioned consignment was never delivered to him by the railway administration. According to the plaintiff, the railway administration never informed him as to what had ultimately become of the said consignment. The plaintiff gave notices to the various railway administrations which were concerned in this cast, namely, notices to the General Manager, South Indian Railway, the General Manager, M. & S.M. Railway and the General Manager of the than. G.I.P. Railway. The plaintiff also gave a notice to the Railway Board under Section 80 of the Civil Procedure Code. As the plaintiff did not get a satisfactory response to his notices, he filed the present suit to recover the sum of Rs. 6,227-1-6 in manner stated above.

3. The plaintiff's suit is resisted by the defendant, the Union of India. The defendant denies that the transport permit and the invoice of the suit consignment were presented by the consignor at the booking office of the railway station of Coimbatore. The further contention of the defendant is that the Superintendent of Claims of the then G.I.P. Railway at Bombay had informed the pleader of the plaintiff that the consignment had been lost at Raichur station. It is the defendant's contention that all possible care which a bailee was expected to take had been taken by the Railway Administration in this case. A further contention of the defendant is that the consignor in this case had not made a declaration within the meaning of Section 75 of the Indian Railways Act before the railway authorities at Coimbatore from where the consignment was booked and that the failure on the part of the consignor to make such a declaration would absolve the defendant from liability for the loss of the consignment, It is also the defendant's case that the loss of the consignment is satisfactorily established upon the evidence in the case. It is upon these contentions that the suit is resisted by the defendant, Union of India.

4. The learned Civil Judge, S.D., at Sholapur has come to the conclusion that the plaintiff has proved that the Government permit and the invoices for the suit consignment were presented by the consignor to the booking clerk at the railway station of Coimbatore before the railway receipt in respect of the consignment was prepared and handed over to the consignor. The learned Judge has also held that due notices were served upon the various railway administrations represented by the General Managers of the various Railways, namely, the South Indian Railway, the M. & S.M. Railway and the then G.I.P. Railway. But the learned Judge has held that the consignor had failed to make a declaration within the meaning of Section 75 of the Indian Railways Act before the railway authorities at Coimbatore and that, therefore, the railway administration was not responsible for the loss of the consignment in transit. Consistently with this finding of his on a point under Section 75 of the Indian Railways Act, he has ordered the suit of the plaintiff to stand dismissed.

5. Now, Mr. Walavalkar, the learned advocate appearing in this appeal for the plaintiff, has made two points before me: The first point which he has sought to make is that upon the evidence in this case I should hold that the person delivering the paroel of these goods to the railway administration at Coimbatore for carriage by railway had made a declaration before the said administration within the meaning of Section 75, Sub-section (1), of the Indian Railways Act; and the second point which Mr. Walavalkar has made before me is that in this case there is no satisfactory evidence to show that the whereabouts of the consignment are not known or that the consignment was lost in transit. Now, in respect of the first point of his, Mr. Walavalkar has contended that in view of the fact that a Government permit in respect of the goods which were delivered to the railway administration at Coimbatore for carriage by railway and the invoice in respect of those goods were presented to the booking clerk at the Coimbatore railway station, it should be held that the person who had delivered the goods to the railway administration for carriage by railway had made a declaration as to the nature, the quantity and the value of those goods. Section 75, Sub-section (1), of the Indian Railways Act lays down:

75. (1) When any articles mentioned in the second schedule are contained in any parcel or package delivered to a railway administration for carriage by railway, and the value of such articles in the parcel or package exceeds three hundred rupees, the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared in writing or declared them in writing at the time of the delivery of the parcel or package for carriage by railway, and, if so required by the administration, paid or engaged to pay in writing a percentage on the value so declared by way of compensation for increased risk.

Mr. Walavalkar contends that the object of the Legislature in enacting Sub-section (1) of Section 75 was that, before a parcel is delivered to the railway administration at a particular railway station for carriage by railway, the said administration ought to be made aware of the nature, the description and the value of the goods so delivered to the administration, if the goods fall under the second schedule to the Railways Act. The object of this enactment is obvious. The object is that if the goods consigned are of such a character, description, value etc. as would fall under the second schedule to the Act, a special freight would have to be levied before the said goods could be accepted for carriage by railway. Now, Mr. Walavalkar says that the statements contained in the Government permit exh. 60, which was issued in the matter of these goods, and in the invoice exh. 57, which also related to the said goods would amount to a declaration within the meaning of Section 75, Sub-section (i), before the railway administration at Coimbatore when these documents were presented to the booking clerk at the Coimbatore railway station by the person delivering the goods for carriage by railway. I have considered this contention of Mr. Walavalkar carefully; but I am afraid I must reject it. So far as the permit is concerned, Mr. Walavalkar has invited my attention to a tabular statement which is to be found on the reverse of the permit. The material column in this tabular statement is column No. 4. Mr. Walavalkar's contention is that the statements made under column 4 would amount to a declaration by the consignor before the railway authorities of Coimbatore that the goods which were being consigned were silk goods in which there was 'jari' (gold or silver). I have had a careful look at column 4 of this tabular statement on the reverse of the permit and I cannot accept Mr. Walavalkar's contention that a look at this column would have enabled the railway administration at Coimbatore to know what the nature and the description of the goods were. In the first place, it is impossible to decipher the whole of what is stated under column 4. In this connection, it is important to remember that at p. 45 of the paper book before mo, the plaintiff has furnished the Court with a copy of this permit. What the plaintiff has copied out as being the contents of column 4 of this permit is '60 S Silk.' The rest of the statement contained under column 4 was left blank at the time of preparing the copy of this permit. This would be a singular proof of the fact that neither the plaintiff himself nor his learned advocate was able to decipher the whole of the writing under column 4. Is it right to hold that although the plaintiff himself and his learned advocate have not been able to decipher completely what is written under column 4, the railway administration at Coimbatore would, have been able to understand the contents of column 4 Leaving apart the inability of the plaintiff and his learned advocate to read what is stated under column 4 of the permit, I have myself looked, and looked carefully, with the help of a magnifying glass at the writing below column 4. I am told that what is scribbled after the word 'Silk' in column 4 is the word ' jari'. Now. so far as the first letter 'j' of the supposed word ' jari' is concerned, I have no difficulty in reading that particular letter. But so far as the second letter is concerned, I find it not at all easy to make out whether it is 'u' or 'a'. So far as the third letter is concerned, I may be persuaded, with great difficulty and a certain amount of imagination and speculation, to accept that the letter may be 'r'; and so far as the fourth letter is concerned, I should say that it is virtually non-existent and I have got to stretch my imagination to a considerable extent in order to believe that the fourth letter, which is supposed to be 'i', exists at all in column 4. If such is the difficulty which the Court experiences in deciphering the supposed ward 'jari' even after considerable care is bestowed upon the point, I have a serious doubt whether, by a mere presentation of this permit, the booking clerk at the Coimbatore railway station would have known that what was consigned was silk with jari. This is not all. There is some writing below the supposed word 'jari' in column 4. That writing I am not able to read and Mr. Walavalkar himself frankly states that he too is unable to make it out. In these circumstances, it is impossible to agree with Mr. Walavalkar's contention that by presenting this permit at the railway station of Coimbatore, the person delivering the goods for their carriage by railway made a declaration of the nature and the description of the said goods.

6. The next material document in this connection to which Mr. Walavalkar has invited my attention is the invoice. The invoice is to be found at p. 32 of the paper book. If we look at this invoice, it would tell us that the total value of the goods which were consigned was Rs. 5,615-15-9. If we turn to the fifth column in this invoice, it would tell us that what was consigned comprised of patkas and rumals and what the colours of those patkas and rumals were. But there is nothing to show in the fifth column that the goods which were consigned were of such a description as would fall under the second schedule to the Railways Act. As I proceed further, I shall point out that the material clause to the second schedule which may be considered in this case is Clause (c). Clause (c) relates to 'cloths and tissue and lace of which gold or silver forms part etc.' Now, if we look at the fifth column of the invoice at exh. 57, there is nothing therein to show that the goods which were consigned had gold or silver in the tissue or lace thereof. Therefore, it is impossible to accept Mr. Walavalkar's contention that by a presentation of the abovementioned permit and the abovementioned invoice before the booking clerk at the Coimbatore railway station the person who delivered these goods to the railway administration for carriage by railway declared before the administration that the goods which were being so delivered were the goods falling under the second schedule to the Railways Act, that their description was of a particular character and that, therefore, the goods were liable to be charged a special freight. I agree with the view of the learned Judge that there was no declaration within the meaning of Section 75, Sub-section (1), of the Indian Railways Act made by the person delivering the goods to the railway administration at Coimbatore.

7. Mr. Walavalkar has invited my attention to Section 58 of the Indian Railways Act. Now, Section 58, Sub-section (1) says :

The owner or person having charge of any goods which are brought upon a railway for the purpose of being carried thereon, and the corisignee of any goods which have boon carried on a railway, shall, on the request of any railway servant appointed in this behalf by the railway administration, deliver to such servant an account in writing signed by such owner or person, or by such consignee, as the case may be, and containing such a description of the goods as may be sufficient to determine therate which the railway administration is entitled to charge in respect thereof.

Mr. Walavalkar's contention is that since an account of the goods and a description of the goods were contained in the permit and since the value of the goods was mentioned in the invoice, the presentation of the permit and the invoice together by the person delivering the parcel to the railway administration at Coimbatore for carriage by railway would constitute a declaration under Section 75, Sub-section (7), and that no separate declaration was necessary to be made under that section. In support of this proposition, Mr. Walavalkar has invited my attention to a decision of the Patna High Court in the case of Sorabji Dadabhai v. Bengal Nagpur Railway Company I.L.R.(1936) Pat. 394. It was observed by Mr. Justice Rowland, who was one of the learned Judges who constituted a division bench of the High Court in that case, that the word 'declaration' was not a separate thing from the 'account' and 'description. referred to in Section 58. Mr. Justice Rowland said that the provisions of Section 58 were of general application, but that in the special circumstances described in Section 75, the account and description to be given under Section 58 must include a declaration as to value. Mr. Walavalkar relies upon this decision of the Patna High Court and contends that in substance and in effect the only distinction between the provisions of Section 58 and Section 75 is that whereas Section 58 contains no reference to the value of the goods to be consigned and refers merely to the account and description of the goods, Section 75, Sub-section (1), includes a reference to the value of the goods as well. Then Mr. Walavalkar has stated that if we turn to the invoice exh. 57, we would find that the value of the goods was stated therein. It is in this manner, says Mr. Walavalkar, that the presentation of the permit and the invoice together by the consignor at the railway station of Coimbatore would show that there was a proper compliance with the provisions of Section 75, Sub-section (1), in this case.

8. Now, the legal position regarding 'declaration' under Section 75 of theRailways Act, as held by the Patna High Court in Sorabji Dadabhai v. Bengal Nagpur Railway Company, is with respect correct.

There is no doubt that if the person who prepared the Government permit had legibly and clearly stated that the goods to which it related were the goods falling under the second schedule to the Railways Act, that the goods were patkas and rumals and that in those goods the gold or silver formed a part of the tissue or lace or both, there would have been a sufficient declaration within the meaning of Section 75, Sub-section (1) of the Railways Act by the consignor presenting the permit and the invoice, in which the value of the goods was mentioned, before the railway administration at Coimbatore. 'Declaration' under Section 75, Sub-section (1), of the Act means a communication by a person delivering the parcel of goods to the railway administration for carriage by railway, telling the administration what the nature, description and value of the goods so delivered are, so that special freight, if leviable, may be levied. This communication has got to be in writing ; but it may be in any form, so long as it gives the above information to the railway administration If certain documents or papers are presented by a person delivering the parcel to the railway administration for carriage by railway and if in those papers or documents the above details are clearly and intelligibly mentioned, then, by the said presentation the person delivering the parcel to the administration would satisfy the requirements of Section 75, Sub-section (I), of the Act. Section 75,Sub-section (1), does not contemplate a separate declaration under that section, if the requisite information is otherwise supplied by the person delivering the goods to the railway administration by his presenting certain papers or documents before that administration. Now, in this particular case, as I have already mentioned above, the statement made under column 4 of the tabular statement on the reverse of the permit is hardly legible. Also, there is nothing to show that the attention of the booking clerk of the Coimbatore railway station was specifically invited by the cosignor to what was stated under column 4. As column 4 stood before the railway booking clerk, it was difficult, in my view, for him t6 understand clearly and completely what was written there. That being so, it is impossible to deduce upon the basis of what was stated under column 4 of the permit that by the presentation of that permit, there was a communication by the consignor to the booking staff of the Coimbatore railway station that the goods consigned were of a particular nature and description. It is undoubtedly true that in the invoice relating to the goods the value of the goods was stated. But the difficulty is about the permit. Looking to the permit, it is impossible to hold that it gave a full and clear account and description, within the meaning of Section 58 of the Act, of the goods consigned or that it contained a declaration, within the meaning of Section 75, Sub-section (1), as to the nature and description of the goods. That being so, the decision of the Patna High Court in Sorabji Dadabhai v. Bengal Nagpur Railway Company would not assist Mr. Walavalkar's client in this case.

9. There is another clause, namely Clause (1), in the second schedule to the Act, and Clause (1) relates to 'silk in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials.' Mr. Walavalkar contends that the goods, which were consigned in this case from Coimbatore to Sholapur, fell under Clause (1), and that as the value of the silk contained in those goods was less than half the value of the entire fabric, namely, the entire goods, it was not necessary for the consignor to make any declaration before the railway booking staff of Coimbatore under Section 75, Sub-section (1). Now, the word 'silks' in Clause (1) of the second schedule came up for construction before the Bombay High Court in Lakhmidas Hirachand v. G.I.P.R.Co. (1867) 4 Bom. H. C. R. 129. It was held in that case by the learned Chief Justice Couch and Mr. Justice Westropp that it was a question of fact to be decided on the evidence, and not a question of law, whether or not cotton fabrics bordered with silk, or having a portion of silk otherwise used in their manufacture, wore 'silks in a manufactured or unmanufactured state, wrought up or not wrought up with other materials.' The High Court held in that case that the proper test for a Judge to apply in those cases was to determine whether or not the value of the silk wrought up with other materials was more than half the value of the fabric. If it be not, that is, if the value of the silk be not more than half the value of the fabric, the fabric could not be considered to be silk within the meaning of the Railways Act. Now, Mr. Walavalkar says that in this case, upon the evidence of the consignor himself the value of the silk in the goods consigned was Rs. 500 to Rs. 600 and the total value of the goods consigned was Rs. 5,615 and odd. The value of the goods was stated in the invoice. It was stated at Rs. 5,615-9-6. Mr. Somaswami, the consignor, has deposed in his evidence that 'the value of the proportion of the silk yard and silver thread in the materials' sent by him would be 'about Rs. 500 to Rs. 600,' Therefore, relying upon the decision of this High Court in Lakhmidas Hirachand v. The Great Indian Peninsula Railway Company Mr. Walavalkar says that it was not obligatory upon the consignor to make any declaration at all within the meaning of the Railways Act. Now, this argument of Mr. 'Walavalkar would have been a good argument if the goods consigned fell under Clause (1) of the second schedule to the Railways Act. In my opinion, the goods consigned could not fall under Clause (1), since, upon the authority of the above-mentioned Bombay case, they would not amount to silks at all as the value of the silk therein was much less than half the value of the fabric; and if they could not amount to silks, Clause (1) could not be attracted. There is no doubt that the provisions of the clause which were attracted in this case were the provisions of Clause (c), and Clause (c) refers to 'cloth and tissue and lace of which gold or silver forms part.' In this case, the goods consigned were patkas and rumals, and it is the contention of the plaintiff that gold and silver (jari) formed part of those patkas and rumals. That being so, this particular contention of Mr. Walavalkar also, which he advanced upon the authority of the abovementioned Bombay case, would fail.

10. The next point which Mr. Walavalkar has contended before me is a good point and it must be upheld. Section 75, Sub-section (1), says that the railway administration shall not be responsible for the loss, destruction or deterioration of the goods consigned, unless the consignor has made a certain declaration. I have already referred to the nature of the declaration which is required to be made and I have shown that such a declaration was not made in this case. But Mr. Walavalkar says that the railway administration cannot be absolved from the responsibility for theconsign led goods not reaching the consignee unless the loss of the said goods is established in the first instance by the railway administration. Mr. Walavalkar contends that unless the loss of the consigned goods is established by satisfactory evidence by the railway administration, it cannot be concluded that the whereabouts of the said goods are unknown; and according to Mr. Walavalkar, so long as the conscience of the Court is not satisfied that the whereabouts of the consigned goods are untraceable, the railway administration, to whose care the goods were committed at the time of the consignment, cannot be absolved from responsibility for the goods not reaching the hands of the consignee. Now, evidence has been led in this case to show that the goods, which were consigned from Coimbatore and whose destination was Sholapur, were lost in transit. It is, therefore, necessary to examine that evidence and see whether it is such evidence as would satisfy the conscience of the Court that the whereabouts of the consigned goods became untraceable on account of the goods having been lost. Now, the only evidence on the record of this case on the point whether the goods were lost or not is the evidence of a solitary witness Venkatsubbayya (exh. 59). The story which this witness has stated on oath is a remarkable story which is extremely difficult of acceptance. This witness, who has given evidence in April 1952, without the help of any document or paper or notes in his hand at the time of deposing, has stated as to what happened in the morning of December 16, 1946, and at night on that day. He has deposed about it in such details and with such apparent accuracy that he must be, if what he has stated is true, a person of most uncommon memory. Ho says that in the year 1940, he was employed in the M. & S.M. Railway. He knew about the consignment which bore No. P.W.B. No. 273/21. He has deposed that this consignment arrived at Raichur on December 16, 1946, at about 10 o'clock in the morning by a parcel train arriving from Madras. After the arrival of the train at the railway station of Raichur, this consignment was transhipped and put into a brakevan attached to the Poona Passenger. Then the witness has stated that at 11 o'clock at night on that day (December 16,1946) ho saw that the parcel had been safely put in the brakevan on the Poona Passenger train. This witness was on duty from 8 p.m. to 8a.m. the next day. That is, his duty hours began at 8 o'clock at night on December 16,1946, and ended on 8 o'clock the following morning. At 11 o'clock at night, says this witness, he handed over six vans to the guard of the Poona Passenger train and then, as he was about to hand over the seventh van, in which there was the suit consignment, to the guard, the train No. 21 Up Madras Express arrived on the platform. As the witness was the only clerk present on the platform, he had to attend to that train also. So he told the guard of the Poona Passenger train that he would attend to the Madras Express and return to the Poona Passenger train. He returned within 10 minutes' time, and when he returned, he found that this consignment was missing. Now, I have thought a great deal over this evidence, but I find it impossible to accept it. it is difficult to understand why this witness took such a keen, and almost unusual interest, in this particular consignment. It is common knowledge that on goods trains or parcel trains there would be numerous consignments, sometimes hundreds of them and often times dozens of them. There is nothing in the evidence on the record of this case that so far as the externals of the suit consignment were concerned, there was anything unusual about them. There was nothing uncommon about its appearance or size or packing etc. At least there is no evidence on the record of this case in that direction. That being so, one fails to understand what there was in regard to the suit consignment which drew the attention of this witness in the morning of December 16, 1946, i. e., nearly six years before the date of his deposition, so as to make him remember the details about the consignment. It is difficult to understand why the witness should have pursued the consignment with such meticulous interest and care as to be able to know and remember six years later that this consignment, after its arrival at the Raichur station by the parcel train arriving from the direction of Madras, was transhipped and put in the brake van of the Poona Passenger train. Then again, one fails to understand what should have made him particularly anxious about this consignment when he returned to the Poona Passenger train after attending to the Madras Express. In the brakevan of the Poona Passenger train, there must have been several consignments, i.e. consignments which must have been put after transhipment from other trains. The suit consignment should have been only one of those several consignments and one is really at a loss to understand what should have made this witness realise immediately on his return within 10 minutes' time to the Poona Passenger train that the suit consignment was missing. It has to be remembered that this witness cannot be said to be a disinterested witness. It was the railway administration to whose care the consignment was committed for being transported from Coimbatore to Sholapur. This witness was at the material date a clerk at the railway station of Raichur. At the date of his giving evidence, he was a clerk attached to the Military Siding at Pattabhiram. In other words, both at the date upon which the loss of the consignment is alleged by the railway administration to have occurred and also at the date upon which he gave evidence, he was a railway employee. In these circumstances, his evidence cannot be said to be disinterested evidence. I am not saying that for this reason alone his evidence should be discounted. But I certainly wish to emphasise that if his evidence was capable of corroboration, the corroboration should have been furnished; and in this case, upon the admissions made by the witness himself, his evidence was amply capable of corroboration, and yet that corroboration does not exist on the record of this case. This witness has deposed in his evidence that immediately after noticing that the suit consignment had disappeared from the brakevan of the Poona Passenger train, be had informed the Assistant Station Master, Raichur, about it. He had also informed the watch and ward Havaldar. He had also given information to the police. Not only tins, but he had also sent out memos of the disappearance of the consignment to his superior authorities. It is thus clear that the evidence given by this witness could have been easily corroborated by examining the then Assistant Station Master of Raichur railway station or by examining the then Havaldar of the watch and ward department or by producing on the record of this case a copy of the complaint which might have been made by this witness immediately to the Raichur Police or by producing copies of the memos which, according to this witness, were sent out by him to his higher authorities. We are told that during the Razakar riots, the railway station of Raichur was burnt. That might have been so ; but there is nothing to show that the police station of Raichur was burnt. Even if the Raichur station had been burnt, it should have been easily possible to lead evidence in the shape of producing a copy of the complaint alleged to have been made by this witness to the Raichur police immediately after the alleged disappearance of the railway consignment. It should have been also possible for the then Assistant Station Master of Raichur to give evidence. It should also have been possible for the higher officers of the railway department, to whom memos were sent out by this witness, according to his evidence, to be examined in this case. None of these things was done and I am asked to rely exclusively upon the evidence of this witness Venkatsubbayya and deduce upon the basis of that evidence that the whereabouts of the suit consignment were not known. In my view such a conclusion cannot be reached upon such slender, weak and unsatisfactory evidence as the evidence of Venkatsubbayya.

11. If we turn to Section 72 of the Indian Railways Act, this is what Sub-section (1) of that section provides :

The responsibility of a railway administration, for the loss, (destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of ft bailee, under Section 152 and 161 of the Indian Contract Act, 1872.

Now, if we turn to Section 151 of the Indian Contract Act, it says that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Section 152 of the Indian Contract Act provides that the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. Then there is. Section 161 which says that if, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailee for any loss, destruction or deterioration of the goods from that time. Now, in order to see whether in this case the railway administration, which was a bailee, took as much care of the suit goods which were consigned to the care of the said administration as a man of ordinary prudence would take of his own goods, it is necessary to see what the railway administration did after coming to know, as is contended on behalf of the defendant, that the suit consignment had disappeared from the brakevan of the Poona Passenger train on the night of December 16, 1946. On January 27, 1947, the plaintiff consignee brought it to the notice of the General Manager, M & S.M. Railway, that the suit consignment had not reached its destination. On January 30, 1947, the General Manager acknowledged the receipt of that communication of the plaintiff dated January 27, 1947, and all that the General Manager said was that the plaintiff's intimation or communication was being forwarded to the Chief Commercial Manager, Madras, for disposal. Thereafter, 8 days passed ; and on February 8, 1947, the Chief Commercial Manager, Madras, informed the plaintiff through his lawyer that the railway station of Raichur was neither the booking station nor the destination station, but was only an intermediate station and that, therefore, the Superintendent of Claims, G.I.P. Railway, Bombay, was the proper authority to dispose of the plaintiff's claim, Thereafter, nothing happened for nearly a month and a half. On March 19, 1947, the Chief Commercial Superintendent, Trichinopoly, informed the plaintiff through his lawyer that as the destination station was situated within the then G.I.P. Railway, the Superintendent of Claims of the said Railway at Bombay was competent to dispose of this matter. After a further delay of more than a fortnight, the Chief Traffic Manager's Office, V.T., Bombay, informed the plaintiff that his matter was still under enquiry and that he would be advised further in due course. The 'due course' did not arrive for three months more and it was finally on June 30, 1947, that the plaintiff was informed by the ChiefTraffic Manager that the parcel, which had been consigned to him from Coimbatore on December 6, 1946, had been stolen from the station promises at Raichur and the matter was under Police enquiry. Now, it is not understood why it took more than three months' time (from December 16, 1946, to March 19, 1947,) for the railway administration merely to ascertain that the authority competent to dispose of this matter was the Superintendent of Claims at Bombay. The question was not a complicated question. If the evidence given by Venkatsubbayya is true evidence, the disappearance of the consignment had taken place from a brake-van of the Poona Passenger train on the platform of the Raichur railway station. In the case of a consignment disappearing from the brake-van of a certain train, while the train was standing on the platform of the Raichur railway station, it should have been easy for the railway administration to know which Superintendent of Claims would deal with the matter. Then again, it is not understood why as much as 3 1/2 months' time was required from March 19, 1947, onward to find that the consignment had been stolen. In the face of these circum-stances, it is impossible for the Court to come to the conclusion that the railway administration, which was a bailee in this case, had taken such care of these goods as a man of ordinary prudence would in the matter of his own goods. That being so, the provisions of Section 161 of the Indian Contract Act would be attracted by virtue of Section 72 of the Indian Railways Act and the bailee, namely the railway administration, would be responsible for the consignment not arriving at its destination, namely, Sholapur, and not reaching the hands of the consignee.

12. [The rest of the judgment is not material to this report.]

13. Accordingly, the appeal of the plaintiff is allowed and the judgment and decree passed by the learned trial Judge are reversed. The plaintiff's suit shall stand decreed in the amount of Us. 5,615-9-6, being the invoice price of the goods which were consigned to him on December 6, 1946, from Coimbatore, and Rs. 25 for costs of notice, in all Rs. 5,640-9-6. The defendant will bear his costs as also the plaintiff's costs of this litigation throughout. The defendant shall pay interest at the rate of 4 per cent. per annum, which is the usual rate, on the amount decreed above from the date of the suit till payment. Under Section 82 of the Civil Procedure Code, it is directed that the defendant shall pay the above-mentioned amount to the plaintiff within six weeks from the date of this judgment.


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