1. This appeal arises out of a suit filed by the Raigarh Jute Mills, Ltd., a company incorporated under the Indian Companies Act, having its registered office at Raigarh for recovering from the Union of India owning the Bengal Nagpur Railway (now included in the Eastern Railway), Rs. 5,949/-for loss of a consignment of Jute which caught fire in transit. The original Court passed a decree in favour of the plaintiff-company for Rs. 5868/8/-with corresponding costs. Hence, this appeal.
2. Briefly stated, the facts of the case are that on 11-2-1950 the plaintiff-company consigned from Katabanji, Railway Station, 320 bales of jute booked in two wagons as per contract evidenced by Invoice No. 33 and the relative Railway Receipt of 11-2-1950 to the plaintiff at Raigarh. The said bales were booked in two wagons; in one, 162. bales were booked and these bales have been safely delivered to the plaintiff, and in the other (Wagon, No. 23127-GIP), 158 bales of jute were booked.
3. When the goods train in which both these wagons were attached came at the platform of Bhimkhoj railway-station, on 12-2-1950 at about 12-30 in the noon, some smoke was seen coming out of the wagon (No. 23127-GIP). The railway authorities immediately found that the contents of the wagon had caught fire. They got the wagon separated from the train. Attempts were made at Bhimkhoj station to extinguish the fire. It is stated that water from a well and water from the engine was used and sand was also utilised to extinguish the fire for about two hours but all in vain.
Ultimately, this wagon was sent to Mahasa- round, a way-side station which is at a distance of 12 miles, because water was in plenty there. These 158 bales weighed 222 maunds and 7-1/2 seers, Delivery of the contents was given to the plaintiff. in the middle of the month of June 1950 in loose condition and at that time, the weighment was only 150 maunds and 38 seers. The goods were badly burnt and damaged. The claims officer of the railway assessed the damages at 50 per cent The assessment certificate is Ex. P-4 on record.
4. After taking delivery, the plaintiff submitted his bill for Rs. 5,949/- in respect of loss and damage suffered, to the Railway Authorities and alleged that it was due to misconduct and wilful negligence on the part of the agents or servants of the said Bengal Nagpur Railway. It was alleged that the said wagon caught fire due to the misconduct and wilful negligence of the railway servants at Bhimkhoj station because they had failed to taka proper care of the said 158 bales of jute.
5. Notices under Section 77 of the Indian, Railways Act, 1890, and Section 80 of the Code of Civil Procedure were duly served but as no satisfactory result was obtained the plaintiff filed the suit for the recovery of the aforesaid amount on 22-1-1953.
6. A suit on the very same cause of action was also brought on the original side of the Calcutta High Court first, because the notice was given to the Railway at Calcutta but subsequently as it was found that the cause of action did not arise within the limits of the Calcutta jurisdiction, the suit was withdrawn from the High Court with permission to file a fresh suit at Raigarh and seeking condonation of the period between 18-1-1951 to 22-l-1953, that being the time which the plaintiff had spent in prosecuting the suit with due diligence and in good faith at Calcutta. The original Court gave the benefit of Section 14 of the Limitation Act so far as this period was concerned to the plaintiff and no grievance was made before us challenging the said finding of the lower Court.
7. It is admitted that the consignment was booked under Risk Note 'A' which is Ex. P-8 on record. This Risk Note applies to goods which are either in bad condition or liable to damage, leakage or wastage, due to bad condition of packing. The Clause (a) in Risk Note 'A' provides that the Railway Administration is free from all responsibility for the condition in which the goods are delivered to the consignee at the destination, and also for any loss arising from the same.
In the instant case, admittedly the loss or damage is due to fire. There is no evidence and there has been no suggestion that the destruction of goods by fire was due to the condition of packing. There could be no doubt that the loss has been caused by the introduction of some external factor to the goods contained in the closed wagon. To such a situation as this, obviously the benefit of Risk Note 'A' does not attach. This point was considered in B. N. W. Rly. Co. v. Firm Dassun-dhi Mal Bishambar Das, AIR 19'28 Lah 166, by a Division Bench of the Lahore High Court and it was held following B. N. W. Ry. Co. v. Munna Lal Bishambar Nath, AIR 1924 All 760 and E. I. Ry. Co. v. Firm Cope Krishna Kashi Prasad, AIR 1924 A11 8 :
'Risk Note 'A' confers exemption from liability only in respect of the 'condition' of the goods at the time of the delivery at destination. It cannot confer immunity from liability for loss due to other causes, e.g., loss due to fall in prices resulting from undue delay in transit, or loss due to disappearance of goods due to theft, etc.'
Again, the same point was considered by Mustaq Ahmad J. in Qadir Salamat Ullah v. Governor-General In Council, AIR 1951 All 438 and it was observed :
'The Risk Note 'A' would obviously apply only to cases where the plaintiff has suffered some monetary, loss due to some deterioration in the condition of the goods. Where there is a shortage in the quantity of goods arrived or there is a loss of a complete package, it would not be a case covered by the Risk Note'.
8. The expression 'loss arising from the same' in Risk Note 'A' means 'loss arising from condition in which the goods are delivered'. In Gangadhar Ram Chandra v. Dominion of India, AIR 1950 Cal 394 Das Gupta J. observed in this objection as under :
'For the purpose of Risk Note A, shortage in weight of goods is a condition in which the goods are delivered. It does not follow, however, that once Risk Note A has been executed every case of short delivery will be covered by the saving clause. Before the saving clause can have operation, it must appear prima facie that the loss which actually occurred was in some way connected with the defective condition of the packing'.
The very same principle was followed in Governor-General In Council v. Patel Paul and Co., AIR 1952 Cal 285.
9. In our view, therefore, the loss that has been caused cannot be held to be due to the defective condition of packing or the condition of the goods at the time of despatch and, therefore, the defendant is not exonerated from liability on ac-count of the fact that the goods were despatched under Risk Note 'A'.
10. It is, therefore, necessary to examine the liability of Railway under the provisions of Section 72 of the Indian Railways Act. Under that section, the liability of the railway is only that of a bailee under Sections 151, 152 and 161 of the Act. In its position of a bailee, the railway is bound to take as much care of the goods delivered to it for carriage as a man of ordinary prudenct would take of his own goods of the same bulk, quality and value as the goods bailed. The Railway Administration cannot be expected tc take extraordinary care of the goods. It can be held liable only if it has not taken adequate care of the goods entrusted for carriage.
11. Let us first examine the evidence that has been adduced by the parties. On behalf of the plaintiff, there are four witnesses examined in the case but their testimony is silent on the point of negligence or misconduct. Kesheodeo (P.W. 1) is the manager of the Raigarh Jute Mills, Ltd., Ramchandra (P.W. 2) is the traffic inspector, Udai-nath (P.W. 3) is the goods-clerk who at the relevant time was posted at Raigarh.
These three witnesses have given their testimonies merely on those points which are admitted before us regarding the condition and weight of the goods at the time of delivery. Chiranji (P.W. 4) was in the service of the Raigarh Jute Mills, Ltd., as a clerk in the month of February 1950 and in the month of June, when delivery ot 150 maunds and 38 seers of the jute was taken. He has proved that the inspector assessed the damage at 50 per cent.
The certificate issued by Ramchandra (P.W. 2), dated 18-6-1950 is Ex. P-4 on record which has also been proved by the testimony of P.W. 2. The evidence of J. Apparao (D.W. 2), train-number-taker, P. V. R. Sharma (D.W. 3) who took charge of 513 Dn. Goods Train at Ratabandi at 7 a.m., on 12-2-1950 when it proceeded towards Bhimkhoj, railway-station, and Shanker Hari (D.W. 4) who was the driver of the said goods-train which contained the ill-fated wagon and the testimony of K. G. Rao Patnaik, station-master of Bhimkhoj station are. important. (His Lordship went through the evidence of D. Ws. 2, 3, 4, and K. G. Rao, (D.W. 5) and proceeded).
12. It would be seen that all the witnesses, whose testimony has been discussed above, failed to produce any railway record. They all unanimously stated that the record was untraceable. It has also been explained that the record is maintained only for 3-1/2 years and thereafter, it is destroyed.
13. Now, we come to the various circumstances relied upon by the plaintiff to prove negligence and misconduct on the part of the Railway Administration :
(i) The first circumstance relied upon by the plaintiff to show negligence and misconduct of the defendant is that there was no arrangement for fire extinguishing apparatus at the Bhimkhoj station. The fire extinguishers are usually provided by the railway administration in passenger and mail trains, for the obvious reason that human lives are more precious. To insist that fire extinguishers must be provided in all goods-trains involves huge financial considerations which may, or may not, be consistent with the needs that are required to be satisfied first.
A charge of misconduct on this very ground was made against the Railway Administration in the case reported in Malick Chemical Works v. Union of India, (S) AIR 1955 Mad 274 but the contention was repelled. In Hirji Khetsey and Go. v. B. B. and C.I. Ry. Co., ILR 39 Bom 191 : (AIR 1914 Bom 154) when at an important cotton centre from where hundreds of cotton bales used to be booked adequate arrangements for providing water, sand, etc., were not made, the learned Judge adversely commented upon the Railway Administration. In the instant case, these considerations do not apply because Bhimkhoj is a small station and this fact has not at all been emphasised by the plaintiff that considering the importance of the station, arrangements for fire extinguishing apparatus should have been made.
(ii) The second circumstance relied upon is that the other arrangement for extinguishing fire at Bhimkhoj station was also very poor. There were only three to four buckets provided and the arrangement for water was also inadequate. So far us inadequacy of arrangement is concerned, the very same argument applies as we have stated while dealing with the first circumstance. In addition, however, it may be stated that as soon as the fire was detected, no time was lost in separating the wagon from the rest of the train and making all possible efforts to quench the fire. The evidence on record leaves no room to infer neglect on the part of the Railway Administration merely on the ground that the arrangement for water was not very adequate or the number of buckets provided was not very considerable. Arrangements existing at Bhimkhoj Station for taking water were supplemented by taking water from the tender of the engine and a nearby well.
(iii) The third circumstance emphatically relied upon by the plaintiff is that the starting of fire in a closed wagon should be taken to be a fact within the special knowledge of the Railway Administration and the Railway Authorities have failed to explain how and when the fire started and as it has not been explained, an inference of misconduct and negligence on the part of it should be drawn. We again cannot agree with this submission. In all cases of fire, it is not possible to say that causes of fire will invariably be known to the Railway Administration.
The evidence of the witnesses examined on behalf of the defendant, referred to above, clearly indicates that the Railway Administration did not know the cause of fire. It may have been by some spark which accidentally entered the closed wagon; it may have been by spontaneous combustion; it may have even been due to some other reason which is not brought On record. We cannot presume the origin of fire in one way or the other. The observations made in AIR 1914 Bom 154 are apt in the circumstances of the instant case. Bea-man J. after reviewing authorities on the subject stated the general principle deeducible from the analysis in these words :
'(i) That where a bailee cannot assign the cause of loss, he may always give evidence to prove, if he can, that, although unknown the cause must have been external to himself and beyond his control;
'(ii) failing that, to exonerate himself he would have to prove that, while unknown and in all probability attributable to himself the cause was-of such a nature that he could not have foreseen and prevented it by taking all reasonable care and precautions'.
The evidence of the witnesses, as discussed above, clearly proves that at Khariar Road station which is the immediate preceding halting station before Bhimkhoj the train was examined by the railway servants on duty and nothing wrong was detected with the particular wagon in question. Further, if has been proved that when the train was entering ihe platform of the Bhimkhoj station, smoke, as opposed to flames of fire, was seen which itself points out that the fire had possibly begun only at that time or a little before. To expect evidence of higher type from the Railway Administration under the circumstances is to ask for the impossible. The railway need not in all cases prove the actual origin of the fire.
(iv) The fourth circumstance emphasised is that the defendant answered the interrogatories evasively and did not produce any record. If that record had been produced, it would have revealed that adequate care of goods was not taken during transit. It has been stated above that the defendant's witnesses have established that the record was not traceable at the time of giving evidence. The same reason must have been responsible for not furnishing precise answers to the interrogatories.
But, all the witnesses have described in details the position of the wagon in question. They have stated that it was the 8th wagon from the engine. It was urged that it would not be possible for the witnesses to remember the position of a particular vehicle unless they testified from the written record. But, this need not be so. The witnesses who have testified to the position of this particular wagon were concerned closely with the incident that happened on 12-2-1950.
Some of the witnesses were incharge of the train itself and D.W. 5 was the station master at Bhimkhoj station. Having seen the wagon burning in the train, they could remember the position of the wagon because their attention must have been focussed on the situation of that wagon. In the cross-examination, those questions were scrupulously avoided by the plaintiff which might have elicited the reply as to why the witnesses remembered the position and other details of this wagon.
The result, therefore, is that we cannot come to a conclusion of the suppression of these documents by the Railway Administration in the instant case. Further, as the Risk Note was in 'A' Form, there was no duty cast upon the Railway Administration to disclose anything, as was the case under the proviso to Risk Note 'Z' and, therefore there could be no penalty for non-disclosure. Consequently, Section 114(g) of the Evidence Act 'never came into operation and there was no scope for any adverse inference against the Railway Administration for failure to disclose it. (Vide Governor-General-In-Council v. Thakursi Dass, AIR 1948 Pat 45.)
Even if the principle stated in that case be not applied to the facts of the instant case, the position would be that the Railway Administration is required to explain how the consignment was dealt with during the time it was under its control. The journey before Khariar Road, railway-station, was clearly uneventful. It was not essential for the defendant to give evidence in respect of that part of the journey unless the plaintiff wanted the Railway Administration to give evidence regarding a particular part of the journey. (Surajmal Kedia v. Union of India, AIR 1952 Pat 435).
In the present case, there has been evidence given by D.Ws. 2, 3, 4 and 5 showing that at various halting stations in the course of the journey, the wagon in question was examined and was found to be intact with the seals and the doors closed. It appears that nothing further was required to be examined and there is no suggestion made on behalf of the plaintiff emphasising disclosure of any other fact. Thus, this objection also is without any force.
(v) Another circumstance stressed is that the position of the vehicle has not been clearly proved and if that be assumed to be the 8th position from the engine, it was not a safe position to be allotted to a wagon carrying jute. No rule has been stated before us which warranted any other course. This fact in itself cannot be construed to be an act of negligence particularly because there is nothing to show that the origin of fire was in any way related to the position of the wagon.
(vi) Shri Sen argued that it was not proved whether the consignment in question was sent in a closed wagon. His argument is based on the non-production of the books of railway in which this fact would have been found to be recorded. The argument has no force. D.Ws. 2, 3, 4 and 5 have all deposed that the wagon (No. 23127-GIP) was a closed wagon and they further described how the doors were opened and the work of quenching fire started. No cross-examination was directed on this point. It is clearly proved that the wagon on fire was closed wagon.
(vii) The next point that has been stressed is that the wagon was sent to Mahasamund station very late when the goods were practically destroyed. In appreciating this point, it would be significant to note that the fire was fought at the Bhim-khoj station for about 1 1/2 to 2 hours and instructions from the superior officers were sought during this time and then, the wagon was taken to Mahasamund. Assuming without deciding that the safer course was to send that wagon straight away to Mahasamund, it would have meant that no attempt to quench the fire at all would have been made in the first hour after the start of fire.
This itself might have had the effect of completely gutting the goods. As a matter of fact, the course adopted by the station authorities at Bhim-khoj seems to be fully reasonable. They did their best to fight out the fire immediately and took a chance to quench, it if they could succeed. For this act, they could not be blamed and the railway cannot be made liable. The act complained of is not an act of negligence at all. In Dwarka Nath v. Rivers Steam Navigation Co., Ltd., AIR 1917 PC 173, it was observed :
'In a moment of extreme peril and difficulty you are not to expect perfect presence of mind, accurate judgment, and promptitude. If a man is suddenly put in an extremely difficult position and a wrong order is given by him, it ought not in the circumstances to be attributed to him as a thing done with such want of nerve and skill as to amount to negligence. If in a sudden emergency a man does something which he might, as he knew the circumstances, reasonably think proper, he is not to be held guilty of negligence, because, upon review of the facts, it can be seen that the course he had adopted was not in fact the best.' These observations would have applied with full force to the present case, if we held that at the spur of the moment, a wrong decision was taken by the defendant's servants in attempting to extinguish fire at Bhimkhoj station. We are, however, clearly of the view that in the instant case, no such wrong decision was taken.
(viii) The next circumstance that was urged was that the goods in the wagon were not spontaneously combustible which were alleged to have caught fire in the closed compartment. This in itself was the evidence of negligence or misconduct on the part of the Railway. Again, we cannot agree. No presumption of misconduct on the part of the Railway servants can be drawn from the mere fact that the goods of such a nature had caught fire in a closed wagon. This was so held in Dominion of India v. Gobordhan Das, AIR 1952 Cal 384.
14. The result is that all the circumstances which are relied upon to prove misconduct and negligence on the part of the Railway Administration do not enable us to arrive at any such conclusion. The fire in the instant case appears to be from such causes which could not be said to be within the control of the Railway Administration, The responsibility of the Railway Administration is that of a bailee. Loss or damage to goods entrust- ed to a bailee is prima facie evidence of negligence on his part and the burden of proof, there- fore, to disprove negligence lies on him. Vide Union of India v. Rhagwan Sah, AIR 1957 Pat 325; Asaram v. Union of India, AIR 1957 Nag 59 and Ramkrishna Ramnath Shop v. Union of India, AIR 1960 Rom 344. But, the evidence given in the case satisfied us that the goods were lost by an accidental fire over which the Railway had no control and the Railway Administration took all reasonable steps to extinguish the fire and were not-negligent. In these circumstances, it must be held that the Railway Administration had discharged the burden of proof that lay upon them as bailee to disprove negligence.
15. As observed in Union of India v. Madras Handloom Weavers' Provincial Co-operative Society, AIR 1958 Mad 179, it is really a case of one honest party, the consignor, being saddled with loss by an accidental fire claiming the loss from another honest party, the Railway, who put out the fire in one of the known ways though it was not possible for the Railway to quench the fire before a considerable portion of the goods was destroyed. In such a situation as this, the loss must fall where it is suffered and cannot be allowed to be recovered from the other side.
16. The result is that the appeal succeeds.We dismiss the suit; but considering the entirecircumstances of the case, we leave the parties tobear their own costs throughout.