1. This first appeal is brought by the plaintiffs against a judgment and decree of Mr. Mani Ram, Subordinate Judge. First Class, Amritsar, dated 14th January 1950, dismissing the plaintiffs' suit for the recovery of Rs. 6,343-12-0.
2. Four bales of cotton piece-goods were sent from Salt Cotaurs (Madras) to Amritsar under railway receipt No. 23600/12 dated 9th August 1947. These goods took a long period of time to reach Amritsar and delivery was taken on 1st January 1948. At the time of the delivery of these goods it was found that one of the bales was absolutely empty and all the goods in it were missing. Because of this condition of the goods an open delivery was asked for which was given and it was discovered that the number of missing pieces was 186, and thesehave been valued at Rs. 6,343/12/-. The fourbales were booked by S. M. Meera Sahib toself, and it appears that this railway receiptwas endorsed in favour of the plaintiffs.
3. The plaintiffs wrote to the G. I; P. Railway who by their letter (P. 7) replied that they were making enquiries in regard to the goods. On 7th January 1948 the plaintiffs gave a notice under Section 80, Civil P. C., in which they stated-
'* * out of the four bales the contents of one bale were totally missing. * * On examining the contents 126 (186 sic) pieces valued at Rs. 6,343/12/- (sic) were found to be short.'
and they called upon the defendants to pay this sum of money. On the same date a similar notice (P. 8) was given to the General Manager, East Punjab Railway, Delhi, under Section 77, Railways Act and another (P. 10) to the General Manager, Madras and Southern Mahratta Railway. Notice was also given under Section 80, Civil P. C. Some correspondence passed, and Rail-mately a suit was brought for the recovery of Rs. 6,343/12/- on 6th October 1948 alleging that at the time of taking of delivery it was discovered that the contents of one of the bales had been tampered with and 186 pieces of goods were short. The written statement of the defendants was filed through one Mr. Kidar Nath Khosla, Advocate, but it is a most laconic document and does not do much credit to the Railway Administration or to the gentleman who was appearing for it. Suffice it to say that in para 2 of the written statement the defendants stated that S. M. Meera Sahib had booked the consignment to self and risk notes 'A' and 'B' were executed which absolved the defendants of their liability if any. All the other allegations were denied, and it was not specifically stated whether there was any loss or there was no loss and other defences which the Railway could take were not specifically taken.
4. On 28th December 1948 two issues were framed by Mr. J. N. Kapur, Subordinate Judge, first class, and they were : (2) Whether the loss is due to the negligence or misconduct of the Railway employees and what is its effect? (3) What is the price of the goods?
5. An application under Order 14, Rule 5, Civil P. C., was filed by the plaintiffs--the exact date of the application is hot given--in which they alleged that the defendants had not pleaded loss, misdelivery or theft and therefore the, issue with regard to loss due ,to the negligence or misconduct of the Railway employees did not arise. They also took objection to the plea of exclusion of liability due to risk notes 'A' and 'B' as they, the risk notes, had not been produced and even if an issue could be raised in regard to them the Railway had first to prove that there had been a loss of the goods in dispute. The learned Judge on 30th December 1948 framed another issue, 'whether the goods were lost?' and the case then proceeded to trial.
6. The plaintiffs produced two witnesses by which they proved the value of the goods in dispute. The defendants produced three witnesses, and the learned Judge held that, loss had occurred at the Delhi Railway Station and that the goods were booked under risk notes 'A' and 'B', and as there was no proof of misconduct on the part of the defendants or their employees the suit was dismissed with costs.
The plaintiffs have come up in appeal to this Court.
7-10. Mr. Gandhi for the appellants has strenuously argued that loss of the goods has not been proved and has taken us through the evidence which he has analysed at great length. (His Lordship held after an examination of the evidence that the finding of the lower Court as to loss of goods was sustained and then proceeded:)
11. The next question to be decided is what is the liability of the Railway under these circumstances. The finding of the learned Judge of the Court below is that the goods were booked under risk notes 'A' and 'B'. Apart from the fact that there does not seem to have been any controversy on this subject in the Court below nor was a specific ground taken on this point in the grounds of appeal in this Court, it has been held in this Court by a Division Bench in 'F. A. No. 232 of 1947', a judgment of the Chief Justice and myself dated 4th March 1952 and in 'F. A. No. 73 of 1948'. again a Division Bench judgment of the Chief Justice and myself, that if it is shown that the railway receipt itself refers to risk notes, the goods must be taken to have been despatched under those risk notes unless it is shown by the consignor or the consignee that the risk notes were not executed by him. I would, therefore, hold that the goods were despatched by the consignor under risk notes 'A' and 'B' as shown in the railway receipt.
12. The next question to be decided is what is the effect of the goods having been sent under risk notes. 'A' and 'B'. Before the amendment of 1949 Section 72, Indian Railways Act was-
'(1) 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 a bailee under Sections 151, 152 and 161, Indian Contract Act, 1872.
(2) An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it-
(a) is in writing signed by or on behalfof the person sending or delivering to therailway administration the animals or goods,and
(b) is otherwise in a form approved by the (Central Government).
(3) Nothing in the common law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a railway administration.'
I have already held that the goods were sent under risk notes 'A' and 'B'.
Risk note 'A' is used when articles are tendered for carriage which are either already in bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit. The relevant words of this risk note are-
'I/We, the undersigned, do hereby agree and undertake to hold the said Railway Administration over whose Railway the said goods may be carried in transit from.....station to.....station harmless and 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 irom the same except upon proof that such loss arose from misconduct on the part of the Railway Administration's servants.'
Risk note 'B' is used when the sender despatches goods at a 'special reduced' rate or at 'owner's risk', and the relevant words of this note are: 'I/We, the undersigned, do, in consideration of such lower charge, agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction on deterioration of, or damage to, the said consignment from any cause whatever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants; provided that in the following cases :
(a) Non-delivery of the whole of the said consignment or of the whole of one or more, packages forming part of the said 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 non-delivery is not due to accident to trains or to fire.
(b) Pilferage from a package or packages forming part of the said 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 it was 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.'
13. Mr. Gandhi's argument was that this is a case of non-delivery and, therefore, the proviso in risk note 'B' applies and as there has not been a proper disclosure by the Railway Administration as to how the consignment was dealt with throughout the time it was in their possession he was not bound to prove any misconduct which in this particular case, at any rate, could be fairly inferred from the evidence of the defendants. He has referred to several cases which I will deal with presently.
14. Mr. Fakir Chand Mital on the other hand has submitted that the fact that risk note 'A' was executed conclusively proves that the packing was defective and as it is a case of loss the proviso given in risk note 'B' does not apply and also that it is not a case of non-delivery of the whole of the consignment or of the whole of one or more packages forming part of the consignment nor is it a case of pilferage from a package or packages which were properly packed as required by Clause (a) of this risk note.
15. In my opinion the contention raised by counsel for the defendants-respondents must be accepted. I shall deal first with risk note 'A'. When this risk note is signed by a consignor he agrees with the Railway Administration that the condition of the package is not satisfactory. When he does so, I cannot see how he later on can turn round and object in a suit brought against the Railway Administration that the packing was in fact in a sound condition. The term of the risk note must, in my opinion, prevail.
15a. In -- 'G. I. P. Rly/Co, v. Messrs. Chakra-varti Sons & Co.', 32 Cal W N 53, it was held by a Division Bench of the Calcutta High Court that when a consignor agreeing with the Railway Company that the condition of the packages is not satisfactory, signs a risk note in the form 'A', it cannot afterwards be made a matter of objection in a suit upon the contract that the packages were in a sound condition. The risk note will prevail.
16. In -- 'Mafat Lal Gogal Bhai v. B. B. & C. I. Ry. Co. Ltd.', AIR 1931 Cal 489, it was held that if the consignor of goods agrees that the condition of the packages is not satisfactory, he cannot afterwards turn round and say that the packages were in good condition.
17. Gupta J. in -- 'Dominion of India v. Guruprosad Ram Gupta', AIR 1949 Cal 679, held that where the consignor has executed risk note 'A' it must be taken that the consignor admits the defective packing and in such a case it is the bounden duty of the' Court to take into consideration the provisions of this risk note, and as by risk note 'A' the consignor admits defective packing proviso (b) of risk note 'B' does not come into operation.
18. In -- 'Bhupendra Kumar v. Indian Union', 55 Cal W N 251, it was held by Roxburgh J. that by executing risk note 'A' a consignor recognises that the package 'was defective.
19. I am in respectful agreement with this view and hold that where a consignor does execute risk note 'A' he admits that the packing is defective, and he cannot, in my opinion, when a suit is brought by him on the basis of that contract, turn round and say that the defect in packing did not fall within the ambit of risk note 'A'.
20. The question then arises whether the proviso to risk note 'B' applies in a case where risk note 'A' has been signed. In the present case there is no allegation that the whole of the consignment has not been delivered nor that any whole package out of this consignment has not been delivered. The case for the plaintiffs at its highest would be that out of the four bales that were sent from Salt Cotaurs (Madras) three whole bales have been delivered and in the fourth bale 186 pieces were missing. I have already held that it has been proved, that the 'goods were lost at the Delhi Railway Station. On that finding the proviso would not be applicable, but even if that finding was not there, in cases where risk notes 'A' and 'B' are both executed, we have to start with the premises that the packing of the consignment was defective so as to come within risk note 'A'. Proviso (a) to risk note 'B' comes into operation only when the non-delivery is of the whole of the consignment or of the whole of one or more packages packed in accordance with the instructions laid down in the tariff. In the present case, as I have held that the packing was defective and that this fact cannot be agitated in this suit, therefore, this proviso cannot be applicable. In -- 'Bhupendra Kumar Choudhury,v. Indian Union', 55 Cal W N 251, it was held that the execution of risk note 'A' takes the case out of the Exception in proviso (a) of risk note 'B' which only operates if the consignment is packed in accordance with the instructions laid down in the tariff.
21. The combined effect of risk notes . 'A' and 'B' hag been discussed at some length by Meredith. J, in -- 'Governor-General of India in Council v. Thakursi Das', AIR 1948 Pat 45. In that case the consignor had consigned certain bales of cloth from Ahmedabad to Darbhanga executing risk notes 'A' and 'Z'. Risk note 'Z' is for all purposes identical with, risk note 'B. The consignment arrived in a suspicious condition and an open delivery was taken and it was found that there was a shortage worth Rs. 66/-. The learned Judge held that where risk note 'Z' applies the Railway Administration has to make the necessary disclosure and if the consignor is not satisfied with this information disclosed and wants evidence, the Railway Administration must first submit their evidence at the trial, and if the consignor is satisfied that full disclosure has been made, then he must discharge the onus upon him and he can do so either by showing that misconduct may be inferred from the evidence led by the Railway Administration or he can lead affirmative evidence which will establish misconduct. If the disclosures made do not satisfy the consignor, then it is his duty to call upon the Railway Administration for further and better disclosures, and if he does so, it will be for the Court to decide whether his demand has or has not gone beyond the obligation which lies on the Railway Administration under, the proviso, and if the Court is so satisfied, the Railway Administration need go no further and there can be no inference against them from that fact and the plaintiff has to discharge his burden, and if the Court holds that the demand is reasonable and in spite of the Court's direction, the Railway Administration does not disclose any further particulars, a presumption will be drawn against them under Section 114, Evidence Act. But if the Railway Administration has made further particulars and no inference can be drawn from the evidence disclosed, then the burden is still on the plaintiff, and he has to discharge it before he can succeed.
In this case the observations of Lord Than-kerton in -- 'Surat Cotton Spinning and Weaving Mills Ltd, v. Secy, of State', 64 Ind App 176 (PC) were followed. It was also held that :
(i) Where, both risk notes 'A' and 'Z' have been executed, the Railway Administration' can take advantage of either of the risk notes exempting it from liability. It can take advantage of risk note 'A' which exempts the Railway Administration from liability even further than the risk note 'Z'.
(ii) The plaintiff having chosen to execute risk note 'A' it is not open to him at the trial to claim that the package was per-fect.
(iii) So far as risk note 'A' is concerned there is unconditional burden upon the plaintiff to prove misconduct before he can hope to succeed.
(iv) when risk note 'A' has been executed, there is no duty cast upon the Railway Administration to disclose anything as was the case under the proviso to risk note 'Z', and therefore there can be no penalty for non-disclosure.
22. In a later case, -- 'Governor-General of India in Council v. Firm Blshundayal Ram Gourishankar', AIR 1948 Pat 48, the same learned Judge discussed the meaning of the word 'loss' as used in risk note 'A' and Section 72,
Indian Railways Act and held that the word 'loss', cannot refer to the loss of the goods but refers to the loss arising from the condition in which the goods are delivered. In other words, risk note 'A' has no application at all to cases of failure to deliver, or pilferage, because a thing never, delivered cannot be said to have been delivered in any condition, and, therefore, the Railway Administration cannot plead the execution of this risk note in bar to a claim based on non-delivery. But this was a case where' a consignment of 'biris' was despatched in seven packages and two packages were found broken and there was a shortage of 39 seers. But in this case there was only risk note 'A', and, therefore, the provisions of risk note 'B' did not come into play, and it was in these circumstances that these observations were made and even these were really obiter as the suit was decided on the ground that no revision lay under Section 115, Civil P. C.
23. The effect of a combined operation of risk notes 'A' and 'B' was discussed in a case to which I have already referred, -- 'Dominion of India v. Guruprosad Ram Gupta', AIR 1949 Cal 679, and it was held that where the consignor has executed both risk notes 'A' and 'B', by the execution of risk note 'A' the consignor admits defective packing, and as he admits defective packing, the case does not come within proviso (b) to risk note 'B', and hence, in such a case, there is no scope for making the presumption against the Railway Company, because of the non-disclosure by the Company as to how the consignment was dealt with throughout the time it was in their possession,
24. In support of his argument Mr. Gandhi has referred to the following cases: The first is -- 'East Indian Rly. Co. v. Piyare Lal-Sohan Lal', 10 Lah. 360. That was a case where the consignment was booked only under risk note 'B' and it was held that wilful neglect on the part of the Railway Company was established as goods were sent in a wagon which was sealed only with tin shackles but not locked. It appears that this was a case under the previous risk note 'B' and not the one that is now in force.
25. In -- 'Ganesh Das-Bisheshwar Lal v. East Indian Rly. Go.', 6 Pat 189, it was held that when a Railway Company relies on risk note 'B' it-must admit loss in its pleadings and then the onus will be on the plaintiff to prove that the loss was due to the wilful neglect of the Company. It was held in that case that the words 'loss, destruction or deterioration' used in risk note do not cover the case of 'nondelivery'. But, as I have said, this case being only under risk note 'B' is of no assistance,
26. Reference was then made to a judgment of Gentle. J. in -- 'Raigarh Jute Mills Ltd. v. Commrs. for the Port of Calcutta', AIR 1947 Cal 98.' It was again a case where there was only risk note 'B'.
27. 'Gangadhar Ram Chandra a Firm v. Dominion of India', AIR 1950 Cal 394, was a case of risk note 'A', but the leakage in transit had been due not to bad packing but to cuts in the bags caused through a flap door gap. Whether this case lays down good law or not, it is not necessary to consider for the simple reason that it is only under one risk note.
28. 'G. A. Jolli v. Dominion of India', AIR 1949 Cal 380, was again a case og risk note 'B' alone. Chatterjee J. in that case held that the term 'loss' in Section 72, Railways Act and in the risk note means loss of goods by the Railway and does not mean pecuniary or monetary loss to the consignor or the owner, that the Railway must have lost possession of the goods and the Railway for the time being must have been unable to trace them and that proof of nondelivery or misdelivery is by no means conclusive evidence of loss. It was further held that 'loss' means the disappearance of the goods and there can be no loss when the goods are not in fact lost but are actually in existence and are available to the Railway for delivery to the consignee. Non-delivery or misdelivery simpliciter cannot constitute a loss. But even there the learned Judge held that it depends on the facts and circumstances of each case and non-delivery or misdelivery may be due to loss or it can be due to other causes.
29. Reliance was then placed on a judgment of Mokerjee J. in -- 'Governor-General in Council v. Fatal Paul & Co.', AIR 1952 Cal 285. That was a case where risk notes 'A', 'B' and 'C' were executed. At the time of delivery it was found that nine bags had been cut and there was shortage of goods. The learned Judge held that the words 'defectively packed' do not necessarily mean 'not packed according to the instructions laid down in the tariff' and as the tariff rules and their existence or non-existence are matters within the special knowledge of the Railway authorities, the mere execution of the risk note 'A' does not necessarily change the onus under the proviso to risk note 'B'. With great respect I am unable to agree with this last portion of the learned Judge's opinion. I have referred to cases and have held that where risk note 'A' is executed it is not open to the consignor to challenge that the packages were not properly packed. The case was really decided on its peculiar facts, and I do not think it is of much assistance to the plaintiffs-appellants.
30. 'Janeshwar Lal-Rajeshwar Lal v. Dominion of India', AIR 1951 Punj 383, again was a case of risk note 'A' alone.
31. 'Governor-General in Council v. Hari Ram', ILR (1950) All 472, was a case where two bales of cotton were sent under risk notes 'A' and 'Z'. On delivery there was a loss in weight in one of the consignments and it was proved that some Railway servants had pilfered the contents of the bales. The plaintiff had accepted the burden of proof and had discharged it by circumstantial evidence. Where the plaintiff establishes misconduct on the part of the Railway servants the Railway Administration does become liable in spite of the language of the risk notes. This case, therefore, again cannot help the plaintiffs.
32. I hold therefore-
(i) that on the evidence which has been produced it has been proved that the goods in dispute were lost at Delhi Railway Station between 3rd and 11th September 1949 and that no misconduct on the part of the Railway has been proved;
(ii) that where risk notes 'A' and 'B' are both executed, it is not open to the consignor to agitate in a Court of law that packing was proper; and
(iii) that because the appellants have executed risk notes 'A' and 'B' they are not entitled to get advantage of the provisos (a) and (b) of risk note 'B'.
(33) In the result, this appeal fails and is dismissed with costs.
34. I agree.