1. This appeal has been directed against the judgment and decree passed by the learned Subordinate Judge, Sambalpur, dismissing the appellant's suit against the respondent for damages to the tune of Rs. 10.729.66 paise with costs and future and pendente lite interest, The case of the appellant was that a consignment containing a caustic soda lve in tank wagon No. CR-43595 was booked under invoice No. 31. R.R. No. 145457 dated 18-8-1969 by the consignor Jayshree Chemicals Ltd. and the wagon was loaded at the private siding of the consignor at Ganiam. This consignment was placed at the siding of the appellant-company on 23-8-1969 and it was found to be completely empty. The wagon was without any seal and label. The non-delivery of the entire caustic soda lve was, according to the appellant, due to the gross negligence and misconduct of the railway administration and after protracted correspondence with the railway administration claiming damages without any result, the suit was instituted for the aforesaid claims. The respondent denied any negligence or misconduct on the part of the railway administration and their servants and pleaded that the consignment of the tank wagon was loaded at the consignor's private siding not supervised by any railway staff after due repairs to the wagon and the same was handed over to the appellant (consignee) at the private siding of the appellant with the seal intact and therefore, the railway administration incurred no liability. On these pleadings, issues were framed and the parties went to trial and led oral and documentary evidence. Four witnesses were examined for the plaintiff-appellant and the respondent had examined one witness. The trial court was of the view that the onus lay on the appellant to establish the actual loading of the goods for the loss of which the claims had been made. After a discussion of the evidence in this regard, the trial court did not accept the case of the appellant about the loading of the goods in the wagon. The learned Subordinate Judge has taken notice of Section 76-C, Railways Act and held, with reference to the principles laid down in (1972) 2 Cut WR 1187. Union of India v. Straw Products Ltd., Jaykaypur, that the liability of the railway is over the moment the wagon is placed at the private siding of the appellant. Notice has been taken of the fact that no immediate intimation had been given that the wagon had no seal and label after the wagon was placed at the private siding of the appellant. According to the trial court, there was no evidence from the side of the appellant that the seal and the label had been damaged or tampered with at the time the wagon was placed at the private siding of the appellant. Reference was made to the principles laid down by this Court in AIR 1965 Orissa 4, Union of India v. Cuttack Cycle Supply and Co. and by Madras High Court in AIR 1956 Mad 176. Union of India v. S.P.L. Lekhu Reddiar and it was held that in the circumstances of the case, the respondent could not be saddled with any liability. Thus the plaintiff's claims were disallowed.
2. Mr. Basu, appearing on behalf of the appellant, has contended, with reference to the relevant oral and documentary evidence, that the findings recorded by the trial court against the appellant both with regard to the loading of caustic soda lve at Ganiam and with regard to the appellant's claim that at the Brajarajnagar siding of the appellant, the seal of the wagon was not intact and the wagon was empty are incorrect and unfounded and that an unreasonable view has been taken by the trial court. Mr. Pal has referred to the same decisions on which reliance has been placed by the trial court and has submitted that the findings recorded by the trial court are factually well founded and legally sound.
3. The admitted case of the parties to the suit was that the loading of caustic soda lve had been done at the consignor's private siding without the supervision of the railway staff and the consignor had put its seal at the top of the railway seal card. This would appear from the evidence of P.W. 1, and employee of Jayshree Chemicals and D.W. 1 a railway employee. As has rightly been noticed by the trial court. Exts. 1 to 3 which were the entry in the ledger of the consignor, the issue of gate passes and the entry in the siding log book would not, by themselves establish the case of the appellant that the tank wagon had been loaded with caustic soda lve. As has been submitted at the Bar, the only oral evidence led from the side of the appellant with regard to the actual loading was that of P.W. 1 and he had testified:
'I had supervised the loading of the suit wagon and they were correctly and properly loaded.'
It has been admitted by him that, the loading is done in the company's siding without supervision of the railway staff and the company puts its seal and the railway does not make any further checking. The trial court has taken note of the fact that as would clearly appear from Ext. 4. D.S.R. Reddy had signed therein. P.W. 1 had denied the suggestion that D.S.R. Reddy was in charge as the Siding Supervisor and according to him he was the Field Operative. There was no contemporaneous documentary evidence supporting the evidence of P.W. 1 that he had supervised the loading of the wagon. According to P.W. 1, one Suryanarayan had checked up the suit wagon and Adinarayan Reddy was the Khalasi. None of them had been examined for the appellant. No other employee of Jayshree Chemicals had been examined to support the appellant's case of actual loading of the article in question in the wagon. As would appear from the evidence of D.W. 1, at the time of repairing of the suit wagon. D.S.R. Reddy was in charge of it from the side of Jayshree Chemicals and P.W. 1 was not in charge of the wagon at that time. In the circumstances of the case, as observed by the trial court. D. S. R. Reddy was a material witness and he had been withheld. The learned Subordinate Judge had drawn adverse inference for the non-examination of this material witness and in our view rightly so. It was for the appellant to establish the actual loading of caustic soda lve in respect of which damages had been claimed and we are of the view that the learned Subordinate Judge rightly came to the conclusion that there was paucity of evidence from the side of the appellant in this regard.
4. Coming to the next question as to whether at the appellant's siding at Brajrajnagar after the appellant had been informed that the wagon had been placed, there had been no seal and the wagon was found to be empty, we notice that although later, in point of time, steps had been taken by the appellant for informing the railway administration in this regard and by the concerned employees of the railway upon such information, there was no dear and acceptable evidence to show as to what was actually noticed when the wagon was placed at the siding of the appellant who had information about it. Section 76-C. Railways Act, reads :
'76-C. Responsibility for goods to be delivered at siding.--In the case of goods to be delivered by a railway administration at a siding not belonging to the administration, the railway administration shall not be responsible for loss, destruction, damages, deterioration or non-delivery of such goods, from whatever cause arising, after the wagon containing the goods has been placed at the point of interchange of wagons between the railway administration and the owner of the siding and the owner of the siding has been informed in writing that the wagon has been so placed.'
This section absolves the railway administration for loss, damage or nondelivery of goods at a siding, whatever be the reason for such an occurrence, provided two conditions are fulfilled.
(a) the goods arc to be delivered at a siding which does not belong to the railway administration, and
(b) the wagon containing the goods has been placed at the place where the wagons are exchanged between railway administration and the owner of the siding, who has been informed in writing that the wagon has been so placed. In the instant case, the wagon had been placed on the appellant's siding on 23-8-1969 at the point of interchange and information had been given about it, as per Ext. A, to which reference had been made by the trial court. K.C. Das, an employee of the appellant, had signed in the relevant register as the representative of the appellant giving the date and time of making over the wagon for unloading. This had been deposed to by PAV. 4 an employee of the appellant and he had stated:'The Siding Shift Supervisor K.C. Dash informed that the wagon was received empty. T 39 register which is shown to me has been signed by K.C. Dash which would show the time and date of placement in goods shed and the time and date of handing over for unloading........'
P.Ws. 2 to 4 were the employees of the appellant. According to P.W. 2, it had been mentioned in the Shift Register (Ext. 5) dated 23-8-1969 that the wagon said to have contained caustic soda lve was found empty. This witness had not stated a word about any damage to the wagon or about the damage to the seal. P.W. 3 had no personal knowledge about the short ace. He had proved the shortage receipt chalan (Ext. 6) wherein it had been stated that the wagon was received empty and that claim had been preferred. It is pertinent to note that K. C. Das was the person who had signed the entry wherein the date and time of placement of the goods and the date of handing over for unloading had been mentioned. He would be the best person to say as to whether at the time the wagon was placed at the siding of the appellant, there had been any damage to the seal or that the wagon was empty. The appellant did not choose to examine such a material witness and, the trial court had justifiably drawn adverse inference against the appellant for non-examination of such a person. As rightly observed by the trial court, had there been no seat or damage to it. K.S. Das, who took charge of the wagon would, in the normal course, give in writing about it immediately when the wagon was placed at the private siding of the appellant. There was no evidence that he had done so. No mention had been made in the claim notice (Ext. 12) that the wagon had no seal and label. The trial court did not place reliance on Ext, 8 and Ext. 15 (said to be the original of Ext. 8) as there, had been corrections and overwriting without initials and according to the trial court. Ext. 8, which did not show that the wagon had no seal and label, would not further the case of the appellant. So long as the seal was intact, the railway administration could not be held responsible for any shortage. In our view, the trial court correctly noticed that there was lack of evidence to show that the wagon, when placed at the private siding of the appellant, had no seal and label.
5. For the aforesaid reasons, we find that none of the contentions raised on behalf of the appellant shall prevail.
6. The appeal fails and is dismissed with costs. The judgment and decree passed by the trial court are affirmed.
R.C. Patnaik, J.