(1) Second Appeals Nos. 476, 477 and 478 of 1960 are filed against the Union of India owning the Western Railway and the North Eastern Railway. They arise out of suits filed against the Union of India as representing the said railways for damages in respect of consignments of potatoes despatched from Farukhabad and which were received in damaged condition at Bhavanagar. Second Appeal No. 1188 of 1960 is filed against the Union of India as representing the Western Railway as regards a consignment sent to Palitana from Farukhabad. The facts in all these appeals are very similar and the points of law involved are the same. Therefore, with the consent of the learned advocates of both sides, the appeals were heard together and are disposed of by this judgment. It will be expedient, however to discuss separately some questions of facts and the effect of the position of law in Second Appeal No. 1183 of 1960.
(2) Civil Suit Nos. 220 of 1956, 219 of 1956 and 221 of 1956 were filed by Tulsidas Vithaldas trading in the firm name of Mohanlal Vithaldas against the Union of India in the Court of the Civil Judge, Junior Division, at Bhavanagar, for recovering damages regarding the respective consignments of potatoes despatched from Farukhabad station on the North Eastern Railway to Bhavnagar on the Western Railway. Suit No. 87 of 1956 was filed by the same plaintiff against the Union of India in the Court of the Civil Judge, Junior Division, at Palitana, for recovery of damages in respect of the consignment of potatoes booked from Farukhabad to Palitana station on the Western Railway. In all these suits open delivery was taken of goods which were found to have been damaged during transit and an assessment of damage was made by the railway authorities in the presence of panchas. It was alleged in all the suits that inordinately long time was taken by the railways in the transit of these consignments from the Station of despatch to the station of their destination, i.e. Bhavnagar and Palitana. It was further alleged that this unreasonable delay was caused by the negligence or misconduct on the part of the railway administration or its servants which damaged the consignments of potatoes and, as such, the railways were liable to make good the loss suffered by the plaintiff , by way of damages. The requisite notices required under the Indian Railways Act and the Civil Procedure Code were given, but as nothing was paid, the suits were filed to recover the respective amounts from the defendants. The defendants in their written statements in the respective suits denied that there was any delay or that the time taken in transit of these consignments was unreasonably long. They averred that the time taken was normal time taken in the transit of consignments of such goods from Farukhabad to the two stations. They denied that there was any negligence or misconduct either on the part of the Railway Administration or their servants. The defendants had raised various other technical points but they need not be stated here as none of them has been pressed in these appeals before me.
(3) The details of the claims and other particulars necessary for the decision of these appeals may usefully be stated here in a tabular form.
No. of proceedings Quantity From to Period Amount
1. Suit No. 220/56 Appeal 1 Wagon Farukhabad Bhavnagar 13 days 1090/-
No.165/57, S.A. No.476/60 ----------- 24-4-55 6-5-55
2. Suit No. 219/56 Appeal 1 Wagon -do- -do- -do- 1040/-
No. 167/57 S.A.No.477/60 -----------
3. Suit No. 221/56 Appeal 1 Wagon Farukhabad -do- 12 days 1000/-
No. 168/57. S.A.No. 478/60 ----------- 23-4-55
4. Palitana Suit No. 57/56 1 Wagon Farukhabad Palitana 12 days 950/-
Appeal No. 302/58 S.A. ----------- 23-4-55 7-5-55
No. 1183 of 1960. 135 Bags
In the suits filed in the Civil Court at Bhavnagar, the Civil Judge who decided them, came to the conclusion that there was delay of six or seven days which was unreasonable delay in transit due to the negligence and misconduct of the Western Railway and its servants. He, therefore, decreed the suits, ordering the defendants to pay Rs. 548/-, Rs. 746-9-0 and Rs. 300-8-0 with 6 per cent interest and proportionate costs, in the respective suits. The trial Court at Palitana, however, negatived the claim of the plaintiff and dismissed the suit holding that there was no unreasonable delay caused by any negligence or misconduct of the defendant or its servants and dismissed the suit in toto.
(4) The Union of India filed appeals against the decrees passed by the Bhavnagar Civil Court in the District Court at Bhavnagar and similarly in the Palitana suit the plaintiff took the matter in appeal to Bhavnagar. The three appeals from the judgments of the Bhavnagar Civil Court appear to have been heard together and were decided by different judgments on 29th August 1958 and the District Judge allowed all the appeals and dismissed all the three suits. The learned District Judge was of the view that in neither of the three appeals, the plaintiff had succeeded in establishing an unreasonable delay or negligence or misconduct on the part of the Railway administration or their servants. He found that the time taken was proved to be such as can be said to be 'normal time' for transit of such goods from Farukhabad to Bhavnagar. In the appeal from Palitana Court also the learned District Judge came to the same conclusion, confirmed the lower Court's decision and dismissed the appeal. In all these four matters, the plaintiff Tulsidas Vithaldas has come in appeal to this Court.
(5) In these appeals, generally speaking, the contention raised by Mr. Chhatgrapati the learned advocate on behalf of the Appellants is that the lower Appellate Court had erred in law in applying the test of 'normal time' instead of 'reasonable time' while deciding the question of the liability of the Railway administration and he had also gravely erred in coming to the conclusion that the Appellant had not been able to prove that the damage was caused to his consignments of potatoes because of the negligence or misconduct of the railway or its servants.
(6) Before I deal with facts and the submissions made on behalf of the parties, it would be convenient to refer to the relevant provisions of law and the decisions of various Courts relied upon by the parties.
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(7) The specific provisions of law governing the responsibility of the Railway Administration as a carrier of goods are to be found in Chapter VII of the Indian Railways Act, 1890. The relevant sections of the Chapter for the purposes of the decision of these appeals and which were applicable to the suit consignments made in April and May 1955, are sections 72, 74C and 74D. It will be useful to refer to the relevant parts of these provisions.
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There is no dispute before me in these matters that the suit consignments were sent at owner's risk and further that they were received in a damaged condition and for which assessments were made as stated above.
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(8) The combined effect of sections 72, 74C (3) and 74D is that, ordinarily the liability in respect of the goods given to the railway for carriage will be that of a bailee under the Contract Act, but if the goods are entrusted for such carriage at owner's risk as contemplated by section 74C, then that general liability of the railway shall be modified to the extent that in case of loss, destruction, damage or deterioration to the consignment in transit, the railway shall be held responsible for either of such loss, destruction deterioration or damage only on proof of such negligence or misconduct on the part of the railway administration or its servants. But the Legislature by enacting S. 74D in the case of non-delivery of the entire quantity of goods or pilferage even, in case of goods entrusted for transit at the owner's risk has lightened the burden of proof put on the owner's shoulder by providing that the railway shall be bound to disclose to the consignor and put on record how the goods were handled in transit throughout the time it was in its possession or control, and it will be open to the consignor to point out from such disclosure that there was negligence or misconduct on the part of the railway or its servants. But if that cannot be shown, then the burden will persist on the consignor to prove misconduct or negligence. If the railway failed to disclose those facts, or failed to put them on record, then certainly adverse inference would be drawn against the railway. Now, it is obvious that the matters on hand do not fall within the purview of section 74D, because in neither of the appeals it is a case of total non-delivery of the consignment or of pilferage. Therefore, there was no burden on the railway to put on record or furnish the details as required by section 74D in the matters on hand.
(9) An effort, however, was made on behalf of the appellant-plaintiff to urge that despite section 74D, the burden of disclosure and establishing these facts was on the railway. This was put on two grounds:
(1) that the plaintiff had given an application purporting to be for interrogatories under Order 11 rules 1, 2 and 3 of the Civil Procedure Code and though the railway had replied it was neither done in time nor was it a complete disclosure, and thus the railway failed to discharge the duty;
(2) that, section 106 of the Evidence Act would apply in all cases despite section 74D regarding the facts concerning the movement and the manner in which the consignment was handled. Here, the plaintiff had shown that there was delay of five days, then the burden was on the railway to show that the delay was due by some reasons beyond their control and not due to their negligence or misconduct.
Now, so far as these questions are mixed up with the facts of these cases, I shall deal with them a little later. But apart from the question of fact as a question of law simpliciter, as to whether because of the enactment of section 74D, section 106 of the Evidence Act cannot come into play at all or the presumption arising under section 114 of the Evidence Act can never arise, may be considered because on the part of the railway a contention to that effect was urged. I may at once say that I do not find any merit in this contention raised by the railway. In the first place, as already observed, section 74D deals with certain cases only, that is to say, the cases of non-delivery of the whole consignment except in case of fire or accident and of pilferage. It does not touch the other cases such as the one with which we are concerned in these appeals. I do not enter into any detailed discussion as to whether section 106 would apply or not in a case which may be covered by section 74D, as it is not necessary for me to do so. There is nothing however, in section 74D that could be said to indicate any legislative intent to override the provisions of either section 106 or section 114 of the Evidence Act. Whether to the facts of a particular case these sections would have any application or not is a different question. Again apart from section 74D, the plaintiff would also be entitled to call upon the railway to disclose the facts under the provisions of the Civil Procedure Code. As a matter of fact, this contention raised on behalf of the railway is negatived, to my mind, by one of the rulings cited on behalf of the railway itself, which is Union of India v. Ram Richpal, AIR 1965 All 246. In the said decision it was held that Section 74D of the Railways Act is not the only provision of law which imposes an obligation on the Railway to disclose certain facts under certain circumstances. That section imposes a statutory provision on the Railway administration to disclose to a consignor of goods how the consignment was dealt with throughout the time it was in its possession or control. The object of this provision is to enable the consignor to point out to the Railway administration that the facts disclosed by it raise a fair inference of negligence or misconduct on the part of the Railway or its servants. But section 74-D does not have the effect of repealing the provisions of the Evidence Act providing for proof by inference or presumption or of the Code of Civil procedure providing for interrogatories requiring a party to disclose facts within its exclusive knowledge. Even in cases not covered by Section 74-D of the Railways Act, a consignor of goods claiming damages from the Railway for loss or destruction of the goods allegedly due to the negligence or misconduct of the Railway or its servants can rely on the provisions of the Evidence Act and the Code Civil Procedure in discharging the onus of proof of such negligence or misconduct.' It has further been observed as follows:
'In a case covered by S. 74-C the consignor who claims damages on the grounds of misconduct or negligence on the part of the Railway to disclose certain facts if they are within its exclusive knowledge, and if the Railway does not disclose them he can ask the Court to draw such inferences from its omission as are permitted under the law.'
It may be noticed that that was a case where the consignment was found drenched with water and thus damaged.
(10) It is true that the learned advocate on behalf of the railway has been able to cite one decision of AIR 1960 Orissa 103, M/s. Kanyaka Parmeshwari v. Union of India which may appear to support the submission made on behalf of the railway. But if we go through the ruling, we find that in the first place it does not deal with section 74D at all but it deals with section 80 of the Railways Act. But with due deference to the learned Judge deciding that case, I find it difficult to agree with him even otherwise. I beg to agree with the view taken by the learned Judge of the Allahabad High Court to which I have already made a reference. Apart from that, I have given my reasons for holding the contrary view. In the Orissa case, the learned Judge seems to have based his conclusion only on the ground that by section 80, a specific statutory provision as regards the burden of proof was made and, thereof, the general provision of section 114 or section 106 of the Evidence Act would not apply. Even if it were so, the principle does not affect the merit of the cases on hand because, as pointed out, section 74D has no application to the facts of these appeals and therefore, no question of any specific statutory provision arises here.
(11) It will now be convenient here to deal with the other rulings cited by the parties bearing on the question of burden of proof. On behalf of the appellant, reliance was put on the decision reported in Ramkrishna Ramnath Shop v. Union of India, AIR 1960 Bom 344. Much stress was laid by the learned advocate on behalf of the Appellant on this ruling to support their contention and, therefore, it will be necessary for me to deal with it at some length. The facts of the said case were that the plaintiff had handed over some bags of 'Jarda tobacco' or a country manufactured tobacco to a railway administration for being carried on their railway and gave a forwarding note in which he accepted the risk as 'owner's risk'. When the bags of tobacco arrived at their destination, some of these were found to be in a very wet condition and the damage was assessed by the Railway inspector as open delivery was demanded. A suit was then filed by the plaintiffs for recovery of damages against the railway administration. The railway contended that section 74C of the Indian Railways Act, 1890, was applicable to the case and that the burden was on the plaintiff to prove either misconduct or the negligence on the part of railway administration. The fact of damages having been caused to the consignment due to rain water having entered through the crevices of the door of the wagon was admitted. Furthermore, at the hearing it had failed to adduce evidence to show that it had provided rain proof wagons for the consignments.
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Upon these facts, the position of law and observations were made. Their Lordships came to the conclusion that they were satisfied that the plaintiff had succeeded in proving that he was entitled to damages. Now, it is very important to notice that the facts in that case were such which by themselves raised a presumption against the railway. There the question was not one of delay which was alleged to have caused the damage to the consignments. Furthermore, there it was an admitted fact that the goods got wet while in transit due to a leaking wagon which caused the damage. In that case, the question of the goods themselves being such as may deteriorate even within the period of `reasonable time' did not come in for consideration. In that case it was an admitted fact that the rules themselves provided that, in wet season, the railway shall take extra care to see that goods which were likely to suffer damage because of getting wet were put in a leak-proof wagon. All these admitted or proved facts prima facie showed that there was negligence on the part of the railway officers. In the light of these facts, the observations were made that the very fact of deterioration or damage raised the presumption of negligence. None of these conditions or facts obtain in the instant case. This decision came in for consideration in a later decision of the same High Court in Union of India v. Oudh Sugar Mills, Bombay, AIR 1961 Bom 130, wherein it was explained as well as distinguished and the scope thereof was pointed out. The learned Judge in the later ruling, while dealing with this decision, has made the following observation:
'Mr. Bobde on behalf of the plaintiff referred to several cases, particularly a recent decision of this Court in 1960 Nag LJ 177: (AIR 1966 Bom 344); Sattanmal Vishandas v. Union of India, AIR 1960 Raj 121; and Manickam v. Union of India, AIR 1960 Mad 149. In none of these cases were the circumstances similar to the circumstances in the present case. So far as S. 74-C is concerned it seems to me that there must be some distinction in the case of damage sustained to goods in transit by some external agency and damage sustained because of inherent defect or weakness of goods themselves. 1960 Nag LJ 177 (AIR 1960 Bom 344) and 1960 Mad 149 were both cases where the goods were found damaged due to rain. In both the cases, the goods were consigned during rainy season, and when they were found to be damaged by rain water, the Courts upon those circumstances held that the facts showed negligence or misconduct on the part of the railway. The reasoning in both the cases was that it was the duty of the railway to have ensured that the goods entrusted to them as bailees and which when entrusted to them were in a dry condition should reach their destination in the same condition. That is no more and no less than the duty which is in terms cast upon a bailee by the provisions of the Indian Contract Act. In these cases, there was the crucial fact that knowledge was imputed to the railway when goods are transported during rainy season that they are liable to be damaged due to rain water getting into the wagon, and it was held that it was the duty of railway to provide water-tight wagons.'
With respect I agree with the view taken by Kotwal, J,. that the observations made in the prior judgment have to be read in the context with and in the light of the facts of that case.
(12) The following other decisions were relied upon on behalf of the Appellants, but as I shall point out, for reasons mentioned herein below, they do not help the appellant:
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(13) Having examined the position of law as regards the liability of the railway when it accepts goods for transit and also the principles that may govern the burden of proof in case of damage or deterioration to the consignment, it will now be convenient to turn in the facts of the three cases of the Bhavanagar consignment. As noticed, two out of the three consignments took 13 days (inclusive of the day of loading and the day of the arrival of the consignment) and one took 12 days. It has also to be noticed that it is satisfactorily proved by the plaintiff that his other consignments of two wagons of potatoes which were loaded from Farukhabad on the 23rd April 1955 had arrived on the 2nd of May, 1955. So it had arrived within 10 days (both days inclusive). The other important fact to be noted is that on behalf of the railway three instances have been produced to negative the averment of the plaintiff that the consignment of potatoes from Farukhabad used to arrive within six or seven days and to show that the normal or ordinary time taken by the consignments to arrive was about 11 or 12 days. One more set of facts which require to be noticed carefully is that on the 23rd of January 1957, the plaintiff in the three suits had put in applications purporting to be under Rr. 1,2,3 of O. 11 of the Civil Procedure Code. By this application, permission to serve the defendant with interrogatories was sought as regards the movement of the wagon in respect of each of the consignments. The records show that strict procedure for the serving of interrogatories in the prescribed form was not followed, but in the same application the interrogatories intended to be served were mentioned. In the application it was also prayed that the defendant be asked to give replies to them and that after such replies were given, they may be called upon to lead evidence. It appears that on this application the Court passed the following order:
'The defendants should reply on 14-2-57'. What actually happened on 14-2-57 we do not know. But one thing is certain that no reply either to the application or the interrogatories was filed by the defendant on 14-2-57. The record however shows that after all the evidence was recorded in all the three matters, when they were kept for arguments, on 11-4-57, the defendants filed a statement purporting to be the details of the wagon movement of these three consignments in the three different suits. On that very day, the learned advocate for the plaintiff put the following endorsement on that statement filed on behalf of the railway:
'Wagon movements particulars are imperfect, and intentionally the wagon stay at Katosan Road and Bala Road Stations is omitted. This does not satisfy the request made by the plaintiff.' Now, it is to be noticed that though the plaintiff had filed these applications, and though the Court had ordered the defendants to reply on 14-2-1957, no further steps seem to have been taken by the plaintiff to get those details and though the statement was filed by the railway on the day when the arguments were fixed, except for putting the endorsement referred to above, no further efforts were made either to recall the witnesses of the railway or to permit him to lead some further evidence on the point. But all the same, I may mention that the plaintiff had tried to assert this position that there had been delay at these two stations. In suit No. 219 of 1956 from which has arisen the second appeal No. 477 of 1960, Ishwarlal, Plaintiff 's son, who was examined on the 14th of February 1957, deposed that the wagon was detained for three days at Katosan and for two days at Bala Road. At that time many goods trains had passed through Katosan and Bala Road, and that his man Harijivan had told him this. In the cross-examination he had to concede that 'I have no personal knowledge that the wagon was detained at Katosan and Bala Road '. Then again on the 6th of March, 1957, in suit No. 220 of 1956 from which Second Appeal No. 476 of 1960 has arisen be deposed as follows: 'Both at Katosan and Bala road the wagon was negligently detained for a period of 4/5 days and hence the wagon came late.'
In cross-examination again he had to concede 'I came to know from information given by my man that the wagon had been detained at Katosan and Balaroad'. The person from whom the witness said he had received this information had not been examined. The learned advocate for the railway, as pointed out herein above, had tried to snow that the witness had no personal knowledge. After these assertions were made on behalf of the plaintiff, the railway, though it examined witnesses, none of them had denied this assertion nor was any record produced to counter the assertion. Even when they produced the statement of the movements of the wagon, as late as 11-4-57, they have remained silent about it and have not only not denied the fact but have not even mentioned these two places. As pointed out, the learned advocate of the plaintiff had immediately endorsed his protest as above. Even then they had not thought it fit to clarify or counter the allegation. On this question of fact, both the Courts have found that there was delay of five days between these two stations. Some attempt was made from the above state of the record on the part of the railway that there was no proof that the wagons were detained at the two stations. I am not inclined to give any weight to the submission in the light of the above facts and particularly because it is a question of fact and the finding of learned District Judge even on this point is clear that the fact of this delay was established. It was also urged on behalf of the railway that as the burden of proof of negligence or misconduct was on the plaintiff under S. 74-C, it cannot be said that the fact of detention was established. I do not find any merit in this argument because the fact of detention at the two stations must be held to have been established apart from the question of liability arising because of such detention. That is a question which will have to be examined on its own merits in the light of the other facts and the law applicable. But, so far as the question of the fact of detention at the two stations simpliciter is concerned, there is no doubt that both the lower Courts have found that it was so established and therefore it would be necessary for the railway to explain the delay or to show that there was no delay. Apart from the question as to whether the interrogatories were asked for in proper form or not, the fact remains that it was asserted that there was detention at the two stations. No effort was made to meet it in spite of the fact that it has not only ample opportunities to do so, but that there was the burden also on it to explain the detention if any. I cannot but observe that it would have been certainly better for the railway either to have definitely countered this assertion or should have put on record the facts which may explain as to why these wagons were detained at these two stations if at all.
(14) It is in the light of these facts stated above that the question of the liability of the railway has to be determined. The plaintiff's allegation in the plaint and even in the witness-box was that the 'normal period' within which the consignments of the potatoes arrived from Farukhabad to Bhavnagar was six or seven days. I have no hesitation in agreeing with the learned District Judge that this the plaintiff has not been able to prove at all. Even the one instance on which he has relied upon, established that the consignment was carried from Farukhabad to Bhavanagar within 10 days. As against that, as already pointed out, according to the instances relied upon by the railway, wagons had come from Farukhabad to Bhavnagar within a period of about 11 to 12 days. Two of the disputed consignments had arrived in 13 days while two had arrived in 12 days. The learned District Judge, in the light of these facts held that these circumstances on the record did not establish any delay caused by negligence or misconduct on the part of any the railway authority or its servants. According to him, these were not cases of any delay in the right sense of that word because the evidence established that at least the 'normal period' for wagons of potatoes to reach Bhavnagar from Farukhabad was between 9 to 13 days. According to him, even if there was a delay, it was not so inordinate as to fasten any liability on the railway. On these findings he had allowed the appeals.
(15) Mr. Chhatrapati's contentions were that, (1) the railway was bound to bring the consignments within a 'reasonable time' and the normal period taken by such consignments was not the test and the learned District Judge had erred in law when he took the mean of the various consignments on the ground of normal period and held that there was no delay and that the railway was not, therefore responsible, (2) having regard to the facts established, the burden of proof that there was no delay of five days at the stations Katosan and Bala Road caused by the negligence or misconduct of the railway administration or its servants, was on the railway. The lower Courts had found that wagons were detained at the two stations for five days. Therefore the learned District Judge should have held that there was delay due to negligence of the railway, particularly so because the railway had not at all explained what were the circumstances under which the wagons were detained at the two stations.
(16) In support of his contentions, Mr. Chhatrapati submitted that, under law the standard to judge is 'reasonable time' and not 'normal time' and cited the English decision in Taylor v. Great Northern Railway Co., reported in English Law Report (1865-66) I.C.P. 385. In the said case, the Court had decided that a common carrier of goods is not, in the absence of a special contract, bound to carry within any given time, but only within a time which is reasonable, looking at all the circumstances of the case; and he is not responsible for the consequences of delay arising from causes beyond his control. The facts were that, the defendants a railway company, were prevented, by an unavoidable obstruction on their line, from carrying the plaintiff's goods within the usual (a reasonable) time. The obstruction was caused by an accident resulting solely from the negligence of another company who had, under an agreement with the defendants, sanctioned by act of Parliament, running powers over their line. It was held that the defendants were not liable to the plaintiff for damage to his goods caused by the delay. In that case the consignment to be carried was three hampers of poultry. My attention was drawn to various observations of the learned Judges deciding the case. Earl. C. J., had observed that
' . . . . . when . . . . there is no express contract there is an implied contract to deliver within a reasonable time, and that I take to mean a time within which the carrier can deliver, using all reasonable exertions.
Byles, J., observed:
'My Brother Hayes treats ordinary and reasonable time as meaning the same thing, but I think reasonable time means a reasonable time looking at all the circumstances of the case', and Montague Smith J., observed:
' . . . . when the question arises, it must depend on the circumstances of each case what is a reasonable time. It is the duty of a common carrier to convey the goods without an unnecessary delay or deviation . . . ' This decision, therefore, only lays down that where a contract does not specifically stipulate for the time, then it is the 'reasonable time within which the carrier has to carry the goods entrusted to him. One has to keep in mind, all the same, the fact that therein that case the question did not arise, for consideration that where there is a statutory provision of the nature of Section 74C, what happens to the burden of proof as regards the 'reasonable time'. But, I have no hesitation in accepting the proposition that 'reasonable time' is the standard or test on which the liability of the railway will have to be decided. The gist of the observations of the learned Judges is that what is 'reasonable time' is to be decided keeping in mind all the circumstances and the facts of the case in which the question arises for determination. Apart from this English decision, the law of contract in India also lays down what is the time within which a contract has to be performed when no time limit is fixed. Section 46 of the Indian Contract Act provides': '46. Where, by the contract, a promisor is to perform his promise without application by the promisee and no time for performance is specified, the engagement must be performed within a reasonable time.
Explanation:- the question, 'what is a reasonable time' is, in each particular case, a question of fact.'
Therefore, apart from the English decision, it is obvious that the Indian law also lays down the standard of 'reasonable time' for the performance of the contract where no specific stipulation has been made as regards the time during which the contract has to be performed. It is true that it may be said that, now the relationship between the consignor and the railway is not purely dependent upon contract as the old risk-notes have been abrogated. But, yet it cannot be forgotten that the statutory provisions of the Railways Act itself, by section 72, make the liability of the railway as that of a bailee under the Contract Act. The relevant provisions of the Contract Act, therefore, are bound to be taken into consideration. But there is , no manner of doubt that what is 'reasonable time' will always remain a question of fact to be determined in relation to the circumstances of each case. XX XX XX XX XX XX XX XX XX XX XX
(18) Having regard to this position of law, there is no doubt that the liability of the railway administration for any damage or loss caused due to delay in transit of a consignment entrusted to it at owner's risk has to be determined on the test whether the consignment was carried to its destination within 'reasonable time' and not 'normal or usual time'. What is 'reasonable time' depends on the circumstances of each case, as there is nothing like 'reasonable time' in the abstract. Though 'normal' or 'usual time' is not always equivalent to the 'reasonable time' in my view, in determining the question whether the contract is performed in 'reasonable time' or not, one of the important circumstances that requires to be considered is what is the usual or normal time taken for the performance of such contracts. It cannot be said that it is not a circumstance to be considered at all. Even the question whether it should be taken into consideration or not will depend upon the particular facts of each case. With this background of the principles of law, we may now examine the question as to whether in the instant cases, the railway cannot be said to have carried the consignments with in 'reasonable time'.
(19) Mr. Chhatrapati, the learned advocate for the appellants, urged that 'reasonable time' in the present case would mean 10 days at the most and, therefore, in any event, there was a delay of three days. This very plaintiff received at Bhavnagar his consignment which was loaded at Farukhabad on 23-4-1955 within 10 days, i.e. 2nd of May 1955, and this proves, according to Mr. Chhatrapati, that the railway could bring the consignment within the period of 10 days which must necessarily be held to be the reasonable time, unless it is shown by the railway that the consignment could be so brought within that period only after some special exertions or efforts. Therefore, there was a definite delay of three days. It may be that even for that delay the railway may not become liable, but for that escape the railway had to establish that the delay was caused because of circumstances or causes beyond its control. If it is established by the plaintiff that the reasonable time is 10 days and the delay is not explained, and the burden of proving those facts which could explain the delay being on the railway as those are facts within the special knowledge of the railway, then in the eye of law, the plaintiff had discharged the burden of showing that the loss was caused by the delay as a result of negligence on the part of the railway.
(20) At first sight the reasoning of the submission made on behalf of the appellant may appear to be sound and more or less convincing. However, when subjected to proper scrutiny, it crumbles. In the first place, this reasoning is based on the assumption that because the railway was once able to bring the consignment over this distance within 10 days, it must necessarily be taken to be the 'reasonable time' and any delay beyond this is unreasonable which necessitates an explanation on the part of the railway. As I have already observed, in my view, the time within which the various consignments of potatoes were carried from Farukhabad to Bhavnagar, though may not be the criterion by itself, to determine their liability, it is an important circumstance which should be taken into consideration to determine the concept of 'reasonable time'. This is the only solitary instance which the plaintiff while discharging his burden of proving negligence or misconduct has been able to establish. It is true, the plaintiff has further established that at Katosan the wagon was detained for two or three days and at Bala Road for two days more. But, at the same time, there is nothing to show that the wagons are not ordinarily detained at all at any of these two stations and that this was the first time that it was so done due to negligence of the railway. This aspect requires consideration from the very facts established on the record, because in spite of this detention the overall period that the wagons took to arrive at the destination was only three days more than the quickest possible time established. In my view, to hold that because once the railway was able to bring the consignment to its destination within a particular number of days, that must be taken to be the 'reasonable time' would be itself unreasonable. Besides, in this case, one has to take one fact into account that though the goods could be actually delivered on 6-5-1955, the wagon had arrived on the 5th evening, but, as according to the railway rules, the unloading could not be allowed when the wagons arrive after 6-30 p.m., the delivery was offered on the next day. Otherwise, actually there would be a delay of only two days. But the question is , whether the late arrival by two or three days than the quickest time established within which the consignment was once brought can be said to be unreasonable delay, or in other words, can be said not to be within 'reasonable time'. The thing to be remembered is that the criterion is not the quickest possible time. The criterion is 'reasonable time', which concept naturally admits of some flexibility. When it is established that except for once, on many more occasions and normally, consignments took 12 or 13 days to cover the distance, it is a strong factor to show that such period was reasonably required to carry goods between the two stations and the one quicker arrival was only an exception to the rule. It would not be fair, in my opinion, to assume that except for once all the rest of the times the consignments were delayed due to the negligence or that every other time, except the one when it arrived within 10 days, the railway had not fulfilled its contract carrying the goods within 'reasonable time'. It is further to be noticed that, in this case, it was an assertion made by the plaintiff that the delay had been caused by the detention of the wagons for five days between the two stations Katosan and Bala Road. It is true that they tried to get the details about the wagon movements, but, at the same time, as I have already pointed out, there was no specific effort on the part of the plaintiff to get them in time. As regards the question, whether the wagons were actually delayed at the two stations as alleged, information about it could have been elicited of the plaintiff so desired by asking for those details, or insisting upon those details. But he rested satisfied by merely making a suggestion or assertion. This is also one of the circumstances which has to be taken into consideration, that if there was any real delay at the two stations, it could have been established by the plaintiff. But this aspect, as I have mentioned above, the other facts also show that it cannot be said that merely because these wagons arrived three days later than the period of 10 days, it had taken unreasonable time to arrive.
(21) But to frustrate this line of reasoning, Mr. Chhatrapati urged that even the rules of the Western Railway itself provided for extraordinary efforts on its part to carry the perishable goods in the shortest possible time. For this he relied upon Rule 163 given in Appendix 'C' at page 1275 in Sanjiwa Row's Indian Railways Act, 3rd Edition (1955). The relevant part of the rule is as follows:
'163. Perishable goods: Perishable goods shall be despatched by the first available means. In case of large consignments, a special wagon shall be used to destination direct, both sides labelled, with 'Perishable' and 'Quick Transit' labels. Ventilator doors must be kept open to admit fresh air into the wagon.
(a) Potatoes: Wagon containing potatoes shall be despatched by Fast Goods or Mixed trains. The despatching station shall wire to all junctions and engine-changing station, en route to push the wagon on by connecting trains.'
He very strongly urged, relying upon this special rule, that here was a rule which cast a special duty on the Western Railway to handle the consignment of potatoes in a special way. It is true that this rule does exist in Appendix C as pointed out. But, when carefully looked into, it is to be found that this is not a rule which applies to the Western Railway at all. In this book, there is a compilation of rules made for different purposes by different railways. Rule 163 is under item 11 at page 1266 with the heading 'Goods and Goods Vehicles'. There is a note to be found on that page which clearly indicates that there were standing orders of the Operating Department of the East India Railway now Northern Railway. Therefore, these are not rules made by the Western Railway nor are they applicable to the Western Railway. Therefore, this Rule cannot be of any help to the applicants. On the contrary, it was pointed out that the Goods Tariff rules made by the Western Railway, by rule No. 8 in chapter I regarding Goods Traffic, provided that despatch of goods by any particular train was not guaranteed nor will they be responsible for the arrival of goods at any stations within any definite time.
(22) On behalf of the railway it was urged that assuming for the sake of argument that section 106 of the Evidence Act applies, even then, before the burden shifts on the railway, it has to be established prima facie that there was delay and that delay was due to negligence or misconduct on the part of the railway or its servants. It was urged that this cannot be established merely by saying that once the railway had been able to bring consignment within 10 days and, therefore, when all the other times the consignments took two or three days more to reach the destination, negligence or misconduct must be held to have been established or it must be so assumed, and the railway should rebut that assumption. Again, even if the plaintiff were to establish that the consignments arrived late and that the goods were damaged or deteriorated, that by itself cannot fasten the railway with any responsibility to pay damages. The plaintiff has further to prove that the damage or deterioration was caused to the consignment by the delay. If that were not so, the provision of section 74C, would be rendered nugatory.
(23) These submissions made on behalf of the railway as absolute propositions of law without regard to particular facts of any case cannot be accepted as correctly stating the law. For example, in a given case of facts, the mere fact of loss or damage caused to the goods may be a strong circumstance by itself to raise a presumption of negligence or presumption of misconduct and the burden of proving the contrary may at once shift to the railway as was held in the Bombay case of AIR 1960 Bom 344, where the goods were damaged by water during transit in a leaking wagon. Then again where there is inordinate delay established, the burden would shift on the railway to explain, failing which, its responsibility would become complete. But, I am, inclined to accept this submission made on behalf of the railway as correct so far as the present set of facts are concerned. As pointed out, the only important facts that could be said to have been established are that the consignments arrived two or three days later than the minimum period within which the consignments are shown to have arrived once, and that at two railway stations the wagons were detained for 3 and 2 days respectively. These facts by themselves cannot be held sufficient to come to the conclusion that the damage was caused to the consignments of potatoes because the wagons arrived three days later than the minimum or shortest time possible. There are other factors which are to be found established from the evidence which have also to be taken into consideration. In the evidence of Dhirajlal on behalf of the plaintiff in the matter from which second appeal No. 447 of 1960 is filed, he has stated that if the potatoes are kept loose, then they will remain good for 15 to 20 days. If they are kept in covered wagon, for 15 to 20 days, they will not remain good. This was what he stated in his examination-in-chief. Then in cross examination he tried to suggest that, generally a wagon with the consignment of potatoes from Farukhabad arrived in Bhavnagar in seven days. It may be noticed however, that it has not been established at all from the record that any consignment had ever been received within 7 days. Then he has conceded that it may be received after 11 days or 15 days. It may even come after 17 days or even a month. If the wagon is received after 11 or 15 days, then they get assessment made, but he had at no time remained present. He could not, at the time when he was giving evidence, give the dates of such assessment. Then further on in cross-examination he has said: 'Whatever goods are received are sold in 24 hours. It would not take 2/3 days. The goods that would be received would not lie unsold for a week. The suit goods were sold within 24 hours of taking of delivery'. However, when further pressed in the cross-examination, he could not stick to this and he had to concede that the said goods were sold within 24 hours of the taking of the delivery, but that the goods were sold within five or six days and that the goods were kept during that time in the 'Vakhar' and every day some out of it was sold. It appears that this cross-examination was made in order to show that good quality potatoes would not be damaged even when they are received up to the time between 13 to 15 days.
Again it is to be kept in mind that potatoes are not such a perishable commodity as can be equated to other very quickly perishable commodities like mangoes and other soft fruits. Even if it is assumed, that the late arrival could be construed as a delay, it cannot be said that the time taken by the railway to transit this type of goods though they are in a sense perishable commodity, was unreasonable. It also cannot be held that there is evidence to establish or conclude that the consignments of potatoes were damaged only because they arrived three days later than the quickest possible time within which they could be brought to Bhavnagar from Farukhabad. Looking to the facts of the case, it is to be proved by the plaintiff to succeed, that his consignment got damaged only because it took three days more to arrive than his one consignment which had left Farukhabad on 23rd of April 1955 and which had taken only 10 days to come there, and not because of any inherent defect in the potatoes of these consignments. It is significant to note that the plaintiff's original effort was to assert that the consignments of potatoes from Farukhabad to Bhavnagar usually took only 7 days to come and his allegation was that there was a delay of six or seven days and, therefore, it was a great delay or inordinate delay. It appears that the trial Court also came to the conclusion that the Railway was liable to give damages because it somehow or the other found that there was a delay of six to seven days and considered it to be an inordinate delay. As fully discussed herein above it can only be said that the consignments took about three days more to arrive than the quickest possible time within which it could arrive.
(24) In this reasoning of mine, I am also supported by two decisions. (1) Rasabati Bewa v. Union of India, AIR 1961 Orissa 113. The facts were that a suit was filed to recover damages caused to a consignment of potatoes sent in a closed wagon from Kanpur to Cuttack. According to the plaintiff , the consignment was due to arrive at the destination within seven days, but actually it arrived after a period of 11 days, according to him, because of gross negligence and misconduct on the part of the defendants, and because of this unusual delay, the contents had deteriorated or damaged and rendered unfit for human consumption. The learned Judges held that, in order to succeed, the consignor under such cases where goods were sent at owner's risk, must prove that the deterioration in the goods while in transit was due not only to the delay in transit of the articles but also to want of care on the part of the railway servants or administration. A common carrier of goods is not, in the absence of a special contract bound to carry within any given time, but only within a time which is reasonable, looking at all the circumstances of the case. It was further held that when the case was governed by S. 74-C, it was for the plaintiff to prove, under Cl., (3) thereof, the misconduct in transit on the part of the railway administration, and that there was no rule in the Goods Tariff General Rules No. 28 regarding attaching of perishable labels to the type of wagon in which the bags were sent. The learned Judges also discussed the effect of the amendment which introduced Ss. 74-A to 74-E and ultimately came to the conclusion that looking to the facts of that case, the plaintiff could not succeed to fasten the liability on the railway. It is important to note that while considering the facts of the case, the learned Judges found that there was no doubt that there was some negligence on the part of the railway administration as a result of which the grain was derailed at Kharagpur, and thereby two days' delay was occasioned, and yet they did not consider the delay sufficient to fasten any liability on the railway, holding that even then it was for the plaintiff to prove that the damage was due to this delay and there was no evidence whatsoever led by the plaintiff. The learned Judges have considered a number of cases on the point and come to the conclusion that the consignor of such perishable articles must prove to enable him to recover damages, that the deterioration in the goods was due not only to the delay in transshipment of the articles but was also due to want of care on the part of the railway servants or administration. They negatived the contention raised on behalf of the plaintiff that proof of mere delay was sufficient. They upheld the argument on the part of the railway that the plaintiff must further prove that the delay itself was the cause of damage or deterioration. An earlier decision of the same Court in Sheikh Makbul v. Union of India, AIR 1960 Orissa 146, also adopted the same reasoning and test for coming to the conclusion that in order to fasten the liability on the railway, the plaintiff had not merely to prove that there was some delay, but even when the delay was established, he must also further prove that because of that delay, the goods had been damaged.
(25) For all these reasons, in my judgment, taking all the circumstances and facts established in respect of the three Bhavnagar consignments, it cannot be held that the railway had not fulfilled their part of the contract within reasonable time. Merely from the fact that the consignments took three days more to arrive than the shortest period established on the record, it cannot be held that there was unreasonable delay, nor can it be held that the plaintiff had succeeded in proving that only because of this late arrival his goods had suffered the damage.
(26) Now, I may turn to some specific facts of Palitana case that make it stand on a somewhat different footing and, in my opinion, a much weaker one than even the other three. This consignment of potatoes was received admittedly within 11 days. It was the contention of the plaintiff that the reasonable time for carrying this consignment between the two stations is seven days and, therefore, due to negligence or misconduct of the railway or its servants, the arrival was delayed inordinately and that caused damage. It is to be noticed that in this case, though the application was given for interrogatories, unlike the other cases, no order whatever was passed by the Court on it. This shows that it must never have been pressed by the plaintiff. Therefore, the railway was under no obligation to file any disclosure under the provisions of the Civil Procedure Code. The next important fact to be noticed is that, in this case, there was no allegation of even any unusual detention of the wagon at any station as was the case in the other three appeals. The only fact on which the plaintiff-appellant seemed to rely upon for the allegation of the delay and thus the assertion that there was negligence on the part of the railway is that he has been able to put on record that in 1954, the railway had brought the consignments of potatoes from Farukhabad to Palitana within 8 days (both days inclusive). Three such instances have been relied upon. The railway relied upon several instances of arrival of consignment within 10 to 15 days, but most of them are of 1957. To my mind, both these instances are too distant a time to be of any definite use to either side. Traffic conditions and other facts bearing on the time factor may be very different. But the railway has been able to put at least one instance which is the nearest and that is of 10th March 1956 and there also the time taken was 11 days. Having regard to the principles of law discussed herein above, there is no circumstance established whatever be the plaintiff in this case which would shift the burden on the railway either under S. 106 of the Evidence Act or raise any presumption under S. 114 of that Act. But apart from that, as a matter of fact, in this case evidence on record clearly goes to show that there was no delay as such. Ishwardas Tulsidas, the son of the plaintiff Ex. 4, deposed in examination-in-chief that the wagon should have reached the destination within six/seven or eight days after despatch from Farukhabad. It is established in cross-examination that he had no personal knowledge about it because he had to admit that this was the only time or occasion when he had ordered potatoes from Farukhabad to Palitana. Then the Station master who was examined by the plaintiff in that case as his witness deposed that the wagons took 8 to 15 days to arrive from Farukhabad to Palitana. The consignment to Palitana is detained at Sihor because there is a break of line. If the wagon was not received in time, the wagon would be detained at Sihor for 24 hours, because there is only one goods train from Sihor to Palitana in the morning. So this proves that at Sihor one day the wagon would be detained and this would be in the usual course without any negligence or misconduct on the part of the railway. So, that detention could not be called unreasonable. But that is not at all. The other fact to be noticed, is to be found in the deposition of witness Harnarayan Kumar Bahadur, Loading Clerk, at Farukhabad at Ex. 29. It discloses that the suit consignment was to be loaded by the consignor. It was loaded on 26th of April 1955, but he had not completed the loading till the evening. The wagon therefore, could only be despatched by the first available train on the next day i.e. 27th and it was so despatched at 13-30 hrs. So actually the railway was in the position to despatch the wagon on the 27th only and not on the 26th because the loading was not done in time by the consignor on the 26th. The effect of all this evidence, is, therefore, that the railway, has, as a matter of fact, put on record the required information at least as regards two days, but the plaintiff has not been able to show from that evidence or any other evidence, that there was any negligence or misconduct on the part of the railway. Taking into account the evidence, it can never be concluded that there was any delay, much less any delay, on account of negligence or misconduct on the part of the railway or its servants.
(27) Under these circumstances, none of the appeals can survive and they are all dismissed with costs.
(28) Appeals dismissed.