1. This is a plaintiff's second appeal against the reversing judgment dated 30-11-50 of Sri A.R. Guru Addl. District Judge of Cuttack, arising out of a suit for recovery of damages to the extent of Rs. 1157/2/6 on account of loss of oil from out of the consignment which passed through the railways of the defendant. The consignment consisting of 533 drums of oil was booked from Aligarh Junction to Cuttack on 28-3-1947 and it reached Cuttack on 8-4-1947. The plaintiff's version is that at the time of taking delivery of the drums it was found that 56 drums were found to have cut-holes on the top of them and there was shortage of 12 maunds and 6 1/4 seers. The plaintiff bases his case for the shortage on account of the misconduct on the part of the railway administration as will appear from the cut-holes which must have been deliberately bored by the employees of the defendant.
2. The defence is that in fact at the time when the consignment was delivered to the plaintiff there were no cut-holes to be found on any of the tins; but nevertheless there was shortage of oil by 12 maunds 6 1/4 seers, which was due to mere leakage of the drums on account of bad packing. The consignment was carried after execution of Risk Notes 'A' and 'Z' on 27-3-47. The railway administration further asserts that there was no misconduct on the part of the employees of the administration, and further that on account of the execution of the Risk Note (A) it is exonerated from the liability for shortage due to leakage on account of bad packing.
3. The Additional Subordinate Judge, who tried the suit, found the shortage to be a case of pilferage by the employees of the administration concerned and drew adverse inference against the railway administration for not making a full disclosure as to how the consignment was dealt with during transit. A full decree was accordinglypassed in favour of the plaintiff. It is to be noted here that the learned Addl. Subordinate Judge came to the conclusion of pilferage solely on the ground that such a heavy measure of oil as 12 maunds 5 1/4 seers could not possibly be short on account bf mere leakage.
4. But the learned lower appellate Court on a thorough discussion of both oral and documentary evidence on record, has come to a definite finding. I have not the least doubt in my mind in pronouncing that the overt act constituting misconduct alleged by the plaintiff is entirely a myth.
5. It is significant to note that the deficiency certificate (Ex. 3) granted by the railway authorities in favour of the plaintiff at the time of taking delivery of the goods does not make any mention of any cut-holes on the top of the 56 drums or on any drum. Exhibit C, entry in Railway Deficiency Register, also does not make any such mention. The lower appellate Court, while discussing the oral evidence, found that the plaintiff is a merchant in the Station Dockyard and it is not possible to accept that if really there were any cut-holes on the top of any of the drums, the plaintiff's agent or 'gomasta' would not have insisted upon the cut-holes being mentioned in the certificate before accepting the same. On a close perusal of the judgment of both the Courts below, we do not find any reason to differ from the view taken by the lower appellate Court that the plaintiff has not been able to prove any misconduct on the part of the employees of the Railway Administration.
6. The plaintiff-appellant, however, strongly relied upon the position that the railway administration was under a legal obligation to disclose how the consignment was dealt with in transit from Aligarh to Cuttack; and the failure on the part Of the railway administration to make such a disclosure invariably leads to an adverse inference against the railway administration on account of which the plaintiff is entitled to a decree. The admitted position is that the consignment was carried under Risk Notes A and Z which were executed on 27-3-1947. The learned counsel for the plaintiff-appellant relies upon proviso (b) of Risk Note Z. It will be pertinent to quote the two provisos of Risk Note Z which are follows:
'Provided that in the following cases --
(a) Non-delivery of the whole of a consignment or of the whole of one or more packages forming part of a consignment packed in accordance with the instructions laid down in the Tariff or, where there are no such Instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such delivery is not due to accidents to trains or to fire,
(b) pilferage from a package forming part of a consignment properly packed as in (a) when such pilferage is pointed out to the servants of the Railway Administration on or before delivery,the Railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time itwas in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon 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.'
A plain reading of the provisos leads us to the view that the plaintiff can take advantage of the proviso compelling the Railway Administration to disclose how the consignment was dealt with throughout the transit only when the consignment was 'properly packed as in (a)'. But the Railway Administration will not be bound to disclose at the outset how the consignment was dealt with if this condition of 'properly packed' was not satisfied. But as will appear from Risk Note 'A', its very execution goes to show that the articles tendered for carriage were either in very bad condition or so defectively packed as to be liable in damage, leakage or wastage in transit. It is on account of this bad condition of the articles or defective packing that Risk Note 'A' is executed and on its execution a consignor avails of the reduced rate.
The terms of Risk Note 'A' are Clear to the effect that the Railway Administration is free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administration. It is to be noted that the provisos for disclosure which appear in Risk Note 'Z' do not appear in Risk Note 'A'. It is clear to our mind that when both the Risk Notes 'A' and 'Z', are executed, as in the present case, the terms of exoneration of the Railway Administration from the liability during transit, except on proof of misconduct must prevail and the proviso for disclosure will not be operative. This is manifestly so on account of the reason, as we have discussed, that the obligation of disclosure under Risk Note 'Z' will arise only when the articles are 'properly packed' which feature is negatived by the very execution of Risk Note 'A'.
7. We will, at this stage, refer to a recent Bench decision of the Assam High Court in the case of -- 'Union of India v. Muralidhar Agarwalla', AIR 1951 Assam 173 (A). Their Lordships, have quoted, with approval, a passage in the judgment of Meredith J. of the Patna High Court, reported in -- 'Governor-General-in-Council v. Firm Bishnudayal Ram Gauri Shankar', AIR 1948 Pat 48 (B) which runs as follows: 'In Risk Note A, the entire onus to prove misconduct lies on the plaintiff, and there is no provision, as there is in Risk Note B, that the Railway Administration must in the first instance disclose how the consignment has been dealt with throughout the journey before the plaintiff is called upon to prove misconduct. Again once Risk Note A has been executed it Is no longer open to the consignor to assert that the packing was not defective. By signing the Risk Note he has admitted the defective packing.'Risk Note 'B' contains similar terms as Risk Note 'Z'. Their Lordships of the Assam High Court laid down the principle that there is no obligation upon the Railway Administration when a consignment is booked under Risk Note 'A' to prevent leakage of the contents during transit. In the absence of any such obligation on the part of the Railway Administration or its servants it is impossible to regard any leakage in transit from a consignment as due to misconduct or negligence or carelessness on the part of the Railway Administration or its servants. Where the entire consignment was duly delivered to the plaintiffs, only the contents of some of the tins were missing, and some tins were found to be half-empty, it was held by their Lordships.
'the loss therefore must prima facie be attributed to the condition of the tins a circumstance which exonerates the Railway Administration from liability unless misconduct is proved.'
In the present case, it is to be noted that the seal and the rivet of the consignment were found intact at the time when the articles were delivered to the plaintiff at Cuttack. The Assam case is on all fours with the present case on account of the feature that there also the consignment was carried after execution of two Risk Notes 'A' and 'B' which are equivalent to Risk Notes 'A' and 'Z'. Their Lordships further observed
'It is only when Clauses (a) and (b) of Risk Note B apply to the fact of a particular case, that the Railway Administration is bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control.'
The same view also was expressed by Panigrahi J. (as he then was) in the case of -- 'Mahadeo Ram v. Union of India', AIR 1952 Orissa 126 (C). His Lordship observed:
'The execution of Risk Note A raises a presumption that the consignment tendered for carriage was either already in a bad condition or was so defectively packed as to be liable to damage, leakage or wastage in transit and in an action for damages for loss of goods during transmission it is not open to the consignee to urge that It was not so. The Railway Administration cannot be held liable for any loss during transit in such a case except upon proof by the consignee that the loss arose from misconduct on the part of the Railway Administration's servants.'
His Lordship further observed:
'It is clear, therefore, from this proviso that only in cases of non-delivery or pilferage, and that too, of consignments that have satisfactorily packed, is the Railway Administration bound to disclose and give evidence as to how the consignment was dealt with during the time when it was in its possession, before the consignee is called upon to prove misconduct.'
8. We are, therefore, definitely of the view that the Railway Administration was not under any obligation to make a disclosure as to how the consignment was dealt with during transit and as the plaintiff has failed to prove misconduct on the part of the employees of the Railway Administration, the plaintiff's suit is bound to fall.
9. We, therefore, afirm the judgment and decree passed by the lower appellate Court and dismiss the appeal but in the circumstances we make no order as to costs of this Court.
10. I agree.