1. The plaintiffs in O. S. No.79 of 1965 on the file of the court of the Subordinate Judge. Thanjavur are the appellants herein. The main facts are not in controversy. The appellants are merchants doing business in gingelly oil and oil seeds at Karunthattangudi, Thanjavur Dt., and they used to purchase oil seeds from merchants in Vizayanagaram and oil seeds used to be, sent by goods train by the vendors to the appellants' place of business. In the particular case, 300 bags of til seeds were booked from Vizayanagaram by M/s. K. Muniyya A. R. Subramanian and Co., as per invoices, Exs. B-1 to B-3 dated 17-9-1964. The goods were consigned to self by they were endorsed in favour of the three appellants respectively. The said consignment of 300 bags was received after inordinate delay of one month and 28 days at Thanjavur after being subjected to transhipment in route. On the allegation that the goods were booked in good and perfect condition and the contents of those bags were in sound condition and fit for human consumption, and also for commercial purposes, but on arrival at Thanjavur, the appellants' power agent who was there to take delivery suspected certain discrepancies and damages to the goods inside the concerned wagon and requested to give open delivery and accordingly such open delivery was given on 15-11-1964 and out of 300 bags only 61 bags were in good condition and an other 19 bags were partly damaged and the contents were wet, discoloured and therefore they were assessed at 33-1/3 value and the remaining goods in other bags were heaped up in loose condition, badly damaged, wet, completely discoloured, charred, clotted and were emitting bad smell and therefore they were destroyed, the suit was instituted for recovery of damages as well as the freight charges with reference to the goods that were not delivered, Calculating the damage suffered by them at Rs. 23765.83 the suit was instituted for the recovery of the said amount with subsequent interest. The respondent herein filed a written statement putting forward several contentions and one such contention was that the suit was bad for misjoinder since all the three appellants each one of whom was an indorse of a different invoice had joined together in instituting the suit. On merits the defendants contended that as a carrier the defendant had carried the goods as a man of ordinary prudence would do and with necessary care and caution expected of a carrier. With reference to what happened the defendants stated 'Packed with six bags of husk on both sides of the water tight wagon the suit consignment has been carried from a day subsequent to rains in the place of start but in the course of travel on 20-9-1964, they were received intact at Waltair and handed over to the Southern Railway by the original carrier, viz., the South Eastern Railway from the starting place of Vizianagaram. At Waltair without touching the seals of the wagon the goods were continued in the wagon by the Southern Railway to their next place of transhipment at Arakonam due change of gauge. In between on 29-9-1964, at Gunadala, this wagon load No.CR.61209 was detained along with other 42 wagons also, for reasons of heavy rains and floods in the area. The 43 wagons stabled in the first line of Gunadala station capsized because of the same reason of unprecedented floods corroding the ground under the rails. After the capsize, salvage operations had to be carried out and that took some time. The floods which were beyond the control of the defendant carrier is a matter of public apprehension as carried out by Government reports and local newspapers. The havoc caused in that area is a matter of wide general knowledge, which alone as an act of God, was the cause for the capsize of the 43 wagons stabled for safety and detained from proceeding further as a preventive measure from irredeemable loss in inconvenient place en route. After salvage operations out of the 300 bags consigned in the place of start, 176 bags were found partly wet and damaged, and 20 bags were found partly wet and damaged, and 20 bags badly damaged and the remaining torn, damaged, decayed and heaped, emitting foul smell uncountable in gunny numbers remaining scattered all round. Out of this in the presence of the Assistant Medical Officer, for certification for human consumption 85 bags were transhipped into ER 32108, 30 bags refilled with contents from out of badly damaged bags loaded into the same wagon and another 80 small bags refilled with contents 20 bags of torn and damaged and scattered quantities also loaded into another wagon ER 6487. These two wagons after complete sealing were brought intact to Arkonam junction, where the station staff on seeing the foul smell, reported the matter to the place of start. However, without doing anything with the commodities, the loads were transhipped to two metre gauge wagons, viz., CR 2695 and NF 15187 and sent to Thanjavur with seals anew. There has been no rain in the course of further transit and the wagons have all been received intact and damage proof at the destination in Thanjavur. Because of the wetting of the already damaged bags and spreading to the whole consignment, the smell had become still worse and open delivery was insisted on behalf of the plaintiffs. The principal defence of the defendants was that the damage was due to an act of God and consequently the defendants were not responsible and liable for the damages. On the basis of these pleadings, the learned Subordinate Judge of Thanjavur framed the following issues:
1. Whether the plaintiffs have suffered damages on account of the negligence of the defendant in transporting the suit consignment?
2. Whether the plaintiffs are entitled to refund of a portion of the freight charges?
3. Whether the damages caused to goods was due to vis major and if so whether the defendants are not liable?
4. Whether the suit is bad for misjoinder of parties, cause of action and multifariousness?
5. To what relief, if any, are the plaintiffs entitled?
The learned Subordinate Judge found on issue No.4 that the suit was not bad for misjoinder of parties, causes of action and multifariousness. On issue No. 2, the learned Subordinate Judge held that the plaintiffs were entitled to refund of a portion of the freight charges. On issues Nos. 1 and 3, the learned Subordinate Judge held that the damages was due to vis major and consequently, the defendant was not liable. In the result, by judgment and decree dated 12-12-1966 the learned Subordinate Judge decreed the suit only for a sum of Rs. 395, being the freight charges to which the appellants were held to be entitled. It is against the judgment and decree of the learned Subordinate Judge, the present appeal has been preferred by the plaintiffs in the suit.
2. Mr. A. R. Ramanathan, learned counsel for the appellants, contended that the conclusion of the learned Subordinate Judge is erroneous on the evidence available. He relied strongly on the evidence of D.W. 6, who was the only person to speak about as to what happened at Gunadala station on the relevant day. According to the learned counsel for the appellants D.W. 6 himself admitted that at the time when the goods train reached Gunadala station there was neither rain nor flood and even though it was not a stopping station the goods train was stopped for want of clearance at B ZA and for allowing another express train to pass. The learned counsel further contended that D.W. 6 admitted that the goods train was stabled on the third line, while in the written statement the defendants deliberately stated that the goods train was received and stabled on the first line because the third line was really a weak line incapable of holding the goods train in question. Consequently, the argument of Mr. Ramanathan, is that the evidence of D.W. 6 itself establishes that the damage was not due to the floods or the rain but due to the negligence of the servants of the defendant in stopping the goods train at Gunadala station and stabling it on the third line. It is also practically admitted that if the goods train had not been detained at Gunadala station and had been allowed to proceed further it would have escaped the subsequent floods and consequently the damage could not have occurred. The learned counsel wanted us to infer that the third line was a new line and a weak line from certain suggestions put to D.W. 6 which were denied by D.W. 6. As soon as we realised that there had been no satisfactory disposal of the suit by the learned Subordinate Judge, we wanted to give an opportunity to the parties to settle the matter if that were possible, in view of the fact admittedly the appellants have sustained damages and the only question is whether the defendant-respondent can escape liability for the damages on the ground that the damage was due to an act of God, viz., unusual heavy rains and floods or not. Notwithstanding the fact that we gave repeated adjournments to enable the learned counsel for the respondent to contact the concerned officers of the respondent and inform us whether such a settlement is possible or not, we regret to say that the learned counsel for respondent today, after having taken more than one adjournment, reported to us that no settlement was possible. In view of this unfortunate situation, we have no alternative but to allow the appeal and remand the suit for fresh disposal notwithstanding the fact that the cause of action in this case arose as early as 1964. We are forced to remand the matter for the following reasons. In the first place, the learned Subordinate Judge assumed that the goods in the present case were booked at owners' risk. Unfortunately, for this assumption there is absolutely no warrant. It is not even the case of the respondent that the goods were booked at owners' risk. We have gone through Exs. B-1 to B-3 and there is nothing to show that the goods were booked at owners' risk. The learned counsel for the respondent also had to concede this position in view of the materials available. Secondly, the learned Subordinate Judge had proceeded on the basis that the liability of the respondent was only that of a bailee and in this context alone had referred to Ss. 151, 152 and 161 of the Indian Contract Act, 1872, and the decisions of courts with reference there to Unfortunately, the learned Judge completely failed to take note of the fact that the liability of the railways in this behalf has been completely changed by virtue of the amendment to the relevant sections of the Act made in 1961. Section 73 of the Act so amended is as follows:
'73. Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following, namely-
(a) act of God;
(b) act of war;
(c) act of public enemies;
(d) arrest, restraint or seizure under legal process;
(e) orders of restrictions imposed by the Central Government or a State Government or by any officer or authority subordinate to the Central Government or a State Government authorised in this behalf;
(f) act or omission or negligence of the consignor or the consignee or the agent or servant of the consignor or the consignee;
(g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods;
(h) latent defects;
(i) fire, explosion or any unforeseen risk;
Provided that even where such loss, destruction, damage, deterioration or non delivery is proved to have arisen from any one or more of the aforesaid causes, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the railway administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods.'
The effect of the amendment made to Sections 73 and 74 of the Indian Railways Act by Central Ct No. 39 of 1961, which had come into force by the time the consignment in question was booked has been considered by one of us in A. A. Ahmed and Co. v. Union of India, : AIR1972Mad454 , and this court with reference to that amended section pointed out.
'The point to be noticed is that S. 73 has changed the character of the liability of the railways from that of a bailee into that of an insurer. Therefore, a combined reading of the principal provision along with the proviso makes it clear that once the goods are carried by the railways, the administration cannot escape liability for loss, destruction, damage, deterioration or non-delivery of the goods, unless it is established that the railway administration has used reasonable foresight and care in the carriage of the animals or goods in question. Even if the loss, destruction, damage, deterioration or non-delivery results from any one of the causes enumerated therein, still the railway administration will be liable to the owner of the goods unless it proves that it has used reasonable foresight and care in the carriage of the animals or goods. In other words, so long as there is a failure to use reasonable care and foresight on the part of the railways, the railways cannot escape their liability by pointing out that such loss, destruction, damage, deterioration or non-delivery was the result of the causes enumerated in the section.'
We are of the opinion that the above extract correctly sets out the legal position with reference to Section 73 as amended by Central Act 39 of 1961. Consequently, even if the damage was found to be the result of one of the causes enumerated in Section 73, still the respondent cannot escape liability unless it proves that it has used reasonable foresight and care in the carriage of the goods. Therefore, the trial court has to find out first, whether the loss was due to any one of the causes enumerated in Section 73 and even if it comes to the conclusion that the loss was due to any one of the causes enumerated in Section 73 still it has to find out and record a finding whether the railway had used reasonable foresight and care in the carriage of goods so as to escape from liability. In view of the fact, that the trial court was absolutely oblivious to the change effected in Section 73 of the Indian Railways Act by Act 39 of 1961, it had no occasion to frame the necessary issues and concentrate its discussion on the real points that had to be decided for the purpose of finding out whether the appellants are entitled to claim damages or not. Therefore, it has become necessary for us to allow this appeal and remand the matter for fresh disposal on the question as to whether the railways, the respondent, are liable or not in the light of the observations made by us. For this purpose, it is open to the trial court to recast the issues already settled by it and the parties will have opportunity for letting in fresh evidence with reference to the issues so recast.
3. We may also make it clear that the conclusion of the trial court on issue No. 4, viz., whether the suit is bad for misjoinder of parties, causes of action and multifariousness as well as on issue No.2 viz., whether the plaintiffs are entitled to refund of a portion of the freight charges, will stand and they are not liable to be gone into again because even on the very admission of the respondent made in the written statement it was not possible for the plaintiffs to separately claim damages in respect of the loss which one can be said to have suffered. In these circumstances, the appeal is allowed as indicated above and the judgment and decree of the learned Subordinate Judge dated 12-12-1966 in O. S. 79 of 1965 are set aside to the extent indicated above and the suit itself is remanded for fresh disposal in the light of the directions and observations contained in the judgment. The appellants will be entitled to their costs in this appeal and they are also entitled to the refund of the court-fee paid on the memorandum of appeal.
4. Appeal allowed.