1. Rajasthan Supplying Agencies, represented by its proprietors, Madanlal Sodhani, as sole plaintiff, filed S.C. No. 1236 of 1962 in the Court of the learned District Munsif at Vijayawada for Rs. 136.54 nP. against the Union of India as representing two Railways, regarding non-delivery of certain consignment. Sri Venkata Kanakadurga Fancy and Kangan Hall, represented by proprietor, Jampani Basavaraju, as sole plaintiff, filed S.C. No. 1413 of 1962 for Rs. 265 in the same Court against the same two respondent-Rail-ways for non-delivery of consignment.
2. S.C. No. 1236 of 1962 related to two cases of metal soap cases, etc., consigned from Calcutta to Vijayawada as per the P.W.B. No. 569406 dated 12-2-1962. The suit was laid since the consignment was not delivered to the plaintiff.
3. S.C. No. 1413 of 1962 related to non-receipt of consignment booked at Calcutta by a consignor as per P. W. B. No. 569401 dated 12-2-1962 bound for Vijayawada.
4. In each of the two suits, the defendants contested. As common questions were involved, the two suits were tried together by common consent. Ultimately, the second Additional District Munsiff passed common judgment dated 26-11-1963 decreeing each of the suits as prayed for. The two respondents filed C.R.P. No. 1086 of 1984 against the judgment in S.C. No. 1236 of 1962 and C.R.P. No. 1087 of 1964 against the judgment, so far as it relates to S.C. No. 1413 of 1962.
5. Both the revision petitions being against a common judgment, passed in a common trial, were heard together by common consent.
6. The relevant facts, is appearing from the evidence, are as follows: The two consignments were two of the 250 consignments which were put in C. R. 56432. The van was sent as a sealed van by the Railway authorities to Bezwada. Ex. B-1 is the loading summary signed by D.W. 1, the Parcel Clerk. Ex. B-2 and Ex. B-3 are entries in Ex. B-1. Ex. B-4 and Ex. B-5 are two forwarding notes corresponding to Ex. B-2 and Ex. B-3. On 17-2-1962, the sealed van arrived at Anaparthy. It was about 10 p.m. in the right. The crew of the train broke off duty. The train was stabled at Anaparthy. Two Railway Protection Sainiks guarded the train and left in the morning. D.W. 2, the Assistant Station Master at Anaparthy on night duty, was in charge of that train. At 6-20 a.m. on 18-2-1962, he noticed smoke coming out of the Wagon No. CR 56432. But, all the same, he found that the wagon was intact and the seals were unbroken. He reported to the Station Master (D.W. 3). The latter opened the wagon, found it to be full of smoke, unloaded 36 articles and secured the way-bills and loading summary which were inside the wagon. They tried to put out the fire but could not succeed. D.W. 3 took it to a siding of the I.L.T.D. Company and, using sand and plenty of water, put out the fire. On a message being sent, D.W. 5, the Fire Officer, Rajahmundry Fire Station, rushed to Anaparthy station and reached at 8-40 A. M. By that time, the fire was being tackled by the I.L.T.D. staff and quenched. The Station Master (D.W. 3) found that, except 36 articles, all the other contents of the wagon which included the consignment concerned in the two suits, had been burnt or half-burnt. D.W. 3 sent the salvage to Bezwada and an Inspector took charge or the wagon with the burnt things. D.W. 5 noted in the van one tin containing inflammable liquid which was burnt in the fire itself and the Station Master (D.W. 3) took charge of it. In the opinion of D.W. 5, the fire accident might he due to chemical action due to combustion. D.W. 7, the Regional Inspector for Fire, Southern Railway, examined the wagon and its contents and enquired into the cause of the fire and the approximate damage, caused. He found that the fire might be due to inflammable goods and wagon catching fire by spontaneous combustion. Ex. B-15 is a report of the Chemical Examiner to the effect that, out of the things found in the van, four items were inflammable and fifty items were percussion caps. D.W. 8, who was the Assistant Security Officer, held enquiry about the fire accident and signed a report (Ex. B-16) of a committee concerned which was to the effect that the fire in the wagon was caused by spontaneous combustion. He also stated that no action was taken and he thought that the articles contained diesel fuel.
7. In S.C. No. 1316 of 1962, four points were framed for decision as follows:--
(1) Whether the defendants have shown ordinary and reasonable fare to exempt them from liability?
(2) Whether the defendants are liable for the costs of the goods and the damages claimed?
(3) Whether the defendants are liable to pay interest and bank commission and demand notice charges?
(4) To what relief is the plaintiff entitled? The defendants examined nine witnesses and marked Ex. B-1 to Ex. B-19. The plaintiff in S.C. No. 1236 of 1962 examined its proprietor, Sodhani as sole witness (P.W. 1). The plaintiff in S.C. No. 1413 of 1962 examined its proprietor, Jampani Basavaraju as sole witness (P.W. 2). On behalf of the plaintiffs in the two suits, the documents (Ex. A-1 to Ex. A-28) were marked.
8. The learned District Munsiff framed six points in S.C. No. 1413 of 1962. Of them, points 1, 2, 3 and 6 are identical with points 1, 2, 3 and 4 in S.C. No. 1236 of 1962. Points 1 and 5 in S.C. No. 1413 of 1962 are not of any importance in these revision proceedings.
9. The learned District Munsiff found, after discussion of the evidence, on Point No. 1 in each suit, that the defendants have not exercised the care expected of them (ordinary and reasonable fare) and that they are not exempt from law. The learned District Munsiff found points 2 and 3 in each of the suits also in favour of the plaintiff except for the fact that the plaintiff is not entitled to bank commission. As a result of his findings on the various points, the learned District Munsiff awarded relief to the plaintiff in each suit.
10. The finding of the learned District Munsiff on Point No. 1 is alone challenged before me in these two revisions. Shri K. Krishnamurthy, the learned advocate for the revision petitioners (defendants) points out that the Railway Amendment Act (Central Amending Act 39 of 1961) came into effect on 1-1-1962 and, therefore, it applies to the two cases, The learned advocates for the respondents-plaintiffs stated that this particular contention was not raised in the lower Court though it is taken in the revision petition. Judicial notice had to be taken of the law in force on any particular relevant date and such law alone had to be applied to any case irrespective of whether any party referred to it or not. The Amendment Act applied not because it is quoted by any party but because the main Act, amended by such Amending Act, was the law in force on the relevant date binding on all parties and requiring no consent of any of them. In these revision petitions, the Indian Railways Act (Act 4 of 1890) as amended by the Amending Act 39 of 1961, was referred to and relied upon by both sides.
11. Section 73 of the Act runs as follows: 'Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery, in transit of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following, namely:--
12. Section 74(1), (2) and (3) of the Act runs as follows:--
'74 (1). When any animals or goods are tendered to a railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate (in this Act, referred to as the railway risk rate) or in the alternative at a special reduced rate (in the Act, referred to, as the owner's risk rate), the animals or goods shall be deemed to have been tendered to be carried at owner's risk rate, unless the sender or his agent elects in writing to pay the railway risk rate.
(2) Where the sender or his agent elects in writing to pay the railway risk rate under Sub-section (1), the railway administration shall issue a certificate to the consignor to that effect.
(3) When any animals or goods are deemed to nave been tendered to be carried, or are carried, at the owner's risk rate, then, notwithstanding anything contained in Section 73, the railway administration shall not be responsible for any loss, destruction, damage, deterioration or non-delivery, in transit, of such animals or goods, from whatsoever cause arising, except upon proof that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or of any of its servants'
In this case, beyond doubt or dispute, there was no election in writing by either of the plaintiffs to pay the railway risk rate and no certificate under Section 74 (2) was taken or produced. Consequently, the goods shall be deemed to have been tendered to be carried at owner's risk rate and, therefore, Sub-section (3) of Section 74 applies notwithstanding anything contained in Section 73. The result is that the burden of proof is shifted to the plaintiff to prove that the loss or non-delivery was due to negligence or misconduct on the part of the Railway administration or any of its servants. It is also beyond doubt that Section 76-F does not apply to this case as non-delivery is due to fire.
13. In Union of India v. Mahadeolal, AIR 1985 SC 1755, liability of Railway administration regarding goods consigned under risk note Form B before the Amendment Act of 1961 came up for consideration. In that form, it was stated as follows:--
'..... the Railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and, it necessary, to give evidence thereof before the consignor is called to prove misconduct, but, if misconduct on the part of the Railway administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.'
It will be observed that, in this form, only 'misconduct' is mentioned whereas in Section 74 (3) and Section 76-F of the amended Act, the words 'negligence or misconduct' are mentioned. Shri M. S. R. Subrahmanyam, the learned advocate for the respondent-plaintiffs, contends that the above portion in Form B cones-ponds generally to Section 76-F. Under Section 7, the consignoi must prove negligence or misconduct if he is to claim any amount against the railway administration.
14. In Shivnath v. Union of India, : AIR1965SC1666 . It was held that the Railway administration was not liable where wagons were looted by lawless mobs resulting in loss of consignment and the railway administration took due care of the consignments just like what it would have done for its own goods. In Para 26 of the judgment, it was pointed out by the Supreme Court as to when and under what circumstances 'negligence' would amount to 'misconduct'. But, under the amended Act, 'negligence' has been specifically mentioned in Section 74 and Section 76-F.
15. In : 3SCR145 , the procedure was indicated for proof in cases of suits by consignor of consignee for compensation. Their Lordships of the Supreme Court observed as follows: (at page 1760).
'. . . At that stage evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation to the consignor or which might have been made in the written statement in reply to the suit. When the railway administration has given its evidence in proof of the disclosure and the plaintiff is not satisfied with the disclosure made in the evidence the plaintifi is entitled to ask the Court to call upon the railway to fulfil its obligation under the contract and the railway should then have the opportunity of meeting the demands of the plaintiff before its case is closed. Thus in addition to the evidence that the railway may adduce on its own (and in doing so the railway has necessarily to keep in mind the provisions of Section 114 of the Indian Evidence Act) the plaintiff can and should draw the attention of the Court if he feels that full disclosure has not been made. In that case be can ask the Court to require the railway to make further disclosure and should tell the Court what further disclosure he wants. It is then for the Court to decide whether the further disclosure desired by the plaintiff should be made by the railway, and if the Court decides that such further disclosure should be made the railway has to make such further disclosure as the Court orders it to make on the request of the plaintiff. If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the Court, the railway would ba in breach of its contractual obligation of disclosure. It is at this stage, therefore, that the railway can be truly said to be in breach of its contractual obligation of disclosure, and that breach arises because the railway failed to disclose matters which the Court on the request of the plaintiff asks it to disclose. The question then is what is the effect of this breach'.
16. Shri Krishnaimurthy, the learned Advocate for the revision petitioners, contends that the Railways let in full evidence and that they did not commit any breach of their responsibility to make full disclosure. He contends that the following finding of the learned District Munsiff on Point No. 1 in SC No. 1236 of 1962 is untenable,
'In the present case, I find that the railway administration has failed to make a full disclosure as to how goods were dealt with from the time of consignment throughout the transport and an inference can be drawn in favour of the consignor and adverse to the railway administration. On Point No. 1, I find that the defendants have not exercised the cam expected of them and that they are not exempt from liability'.
He has given a substantially similar finding on Point No. 1 in SC No. 1432 of 1962.
17. In : 3SCR145 , regarding the facts of that case, it has been observed by the Supreme Court as follows: (at page 1761) --
'The respondent never told the Court after the evidence of the railway was over that he was not satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the respondent wanted. In these circumstances, it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure. In the circumstances, we are of opinion that the risk note would still apply and the Court would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it. If the Court cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct. That burden, if it arises, has clearly not been discharged for the respondent led no evidence on his Behalf to discharge the burden. We, there-fore, turn to the evidence to see whether from the evidence produced by the railway a fair inference of misconduct of the railway or its servants can be drawn on the facts of this case'.
In the present case also, it cannot be said that the Hallway did not discharge its responsibility to make full disclosure; for, it is not shown to me, it is no one's case, that the plaintiff stated at any stage that the disclosure made by the Railways was in any way inadequate. But, even then, we have to turn to the evidence and see whether from the evidence produced by the Railway, a clear inference of negligence or misconduct of its servants can be drawn on the facts of this case.
18. Shri Krishnamurthy contends that the Railway has made full disclosure and that neither the plaintiff did not (sic) express that he was dissatisfied with the disclosure made in the evidence (sic) or tell the Court what further disclosure he wanted and that, there fore, the finding of the learned District Munsiff that the Railway failed to make full disclosure is wrong.
19. For coming to his conclusion in SC No. 1236 of 1962, the learned District Munsiff has relied on the following main points:
1. 'Except D. W. 1 nobody else has seen the goods when they were loaded into the van.
2. It is really the Booking Clerk that has got to satisfy himself whether the goods were properly booked and whether the proper procedure was observed--and even if the booting clerk has not done so, the duty of D. W. 1 is not removed to satisfy himself that no combustibles were amongst the goods booked, or goods loaded into the wagon before the wagon was closed and sealed.
D. W. 1, the Parcels Clerk, at Howrah Station admitted that there was a duty on his part to see that combustibles were not in the van and that he did Dot test each packet.
3. The Station Master (D. W. 2) and the Assistant Station Master (D. W, 3) were definite that the seals were intact for this wagon.
4. If the booking clerk and the parcel clerk have exercised due care and caution no inflammable material would have been placed in the van or in the packages in the van,
5. It is clear from the evidence that the degree of care which is required by an ordinary and prudent person has not been bestowed by D. W. 1 and by the booking clerk concerned, who has not been examined in this case.
6. P. W. 1 naturally was ignorant of the cause of fire and was all the time expecting the goods and he could not be expected to throw light as to how the fire occurred. In the conclusion of the learned District Munsiff which I have extracted, he has given a finding that the defendants had not exercised the care expected of them and that, therefore, they were not exempt from law This finding is supported by various facts mentioned by him. Especially there an various features in the evidence which show that there was negligence on the part of the Railway.
20. In the judgment of the learned District Munsiff, there are various passages relating to the evidence of various witnesses as follows:
'To his (D. W. l's) knowledge no combustibles were loaded in the van.. . .He stated that the combustibles were not loaded in the same van but will be separately loaded, that the way bills were prepared by the forwarding notes by the booking clerk......
He (D. W. 3) admitted in the cross-examination that for the combustibles there is a special Procedure in packing and the booking clerk, if diligent, could have detected it and that there was no defect at their station.
D. W. 7 is the Regional Inspector for Fire..... . .He stated ...... that the cause of fire according to him might be due to inflammable goods in wagon catching fire by spontaneous combustion'.
21. Shri Krishnamurthy points out that, after the fire was noticed, the Railway Authorities took proper steps to put out the fire and that there was no negligence on their part. It may be that, after the fire was noticed, there was no negligence but the learned District Munsiff has indicated that even before the fire-started there was negligence in the matter of loading in the same van, along with the suit consignments, combustible material like diesel oil and percussion caps, which certainly made it possible for fire breaking out and causing damage. Material like diesel oil can certainly catch fire and burn in a sustained manner and cause damage. Percussion caps are capable of starting a fire due to mechanical shocks or impacts which are quite likely in transport by goods train. Fire resulting from percussion caps was capable of igniting inflammable goods like diesel oil etc. Diligence to put out a fee after it started does not affect the fact of negligence in loading which made the fire possible. So, it cannot be said that the finding of the learned District Munsiff that there was negligence on the part of the Railway and lack of due care expected of them is untenable on the evidence in both the suits
22. I End no need to interfere with the finding of the learned District Munsiff on Point No. 1 in both the suits.
23. In the result, these revision petitions are dismissed with costs in each case.