S. Ramachandra Iyer, C.J.
1. This is an appeal under Clause (15) of the Letters Patent against the judgment of Anantanarayanan, J. affirming the decree of the learned First Assistant Judge, City Civil Court, Madras, dismissing a suitinstituted by the appellants for recovery of a sumof Rs. 3487-11-0 from the railway administration under the following circumstances.
2. The Indian Iron and Steel Co., Ltd., Burnpur, West Bengal consigned under railway risk on 13-12-1953 to the first appellant at Madras, 213 steel squares and. 183 steel flats weighing 547 maunds and 10 seers. The goods were loaded by the consignor at Burnpur station in an open wagon. The flats were heavy and had been secured by steel wires in such a way that they could not be removed except by cutting the fastening wires by chisel and hammer. The consignment arrived at Madras on 24-12-1953, where it was found that the fastening wires had been cut and certain plates had been removed en route. There were only two flats and 125 squares, there being thus a shortage of 151 flats and 88 squares. A weighment disclosed that there were only 239 maunds and 1 seer of materials. The appellants preferred a claim to the railway administration which after several months delay was finally rejected on 29-10-1954.
3. The appellants then instituted the suit for recovery of the cost of the materials lost, alleging that the loss was due to misconduct and negligence on the part of the railway. The latter contested the claim on the ground that the loss occurred due to an organised theft in running train and therefore it was beyond the control of the Administration. That defence was accepted by the learned trial Judge who dismissed the suit. Anantanarayanan, J. affirmed that decision on appeal.
4. It is settled law that the liability of the railway for the loss of goods entrusted to it for carriage is not that of an insurer or that of an ordinary carrier, that is to say, it does not guarantee against every loss in transit. Its liability is regulated by Section 72 of the Indian Railways Act whereby its responsibility is declared to be governed by Section 151 of the Indian Contract Act, namely, like that of a bailee who is bound to take as much care of the goods entrusted to him for carnage as a man of ordinary prudence would, under similar circumstances take care of his own goods of similar nature and value. The substantial point; for determination in this appeal therefore is whether the railway administration could be said to have come up to that standard of care in relation to the goods consigned to the appellants during its transit from Burnpur to Madras. For that purpose it is necessary to set out certain events that happened during the journey of the express goods train to which the wagon containing the appellants' goods was attached.
5. The goods train consisted of 46 wagons seven of them containing steel articles. Five of the wagons were loaded at Burnpur with iron and steel materials. The goods consigned to the appellants were stacked in wagon No. 50009. The wagon was an open wagon and there were 12 other open wagons similar to it. On 20-12-1954, the goods train reached Biccovale, a station about 33 kilometres north of Rajahmundry and stopped there for a time for crossing a passenger train; it left the place at about 9-17 p.m. Thirteen kilometres beyond that place was Dwarapudi. Just as the goods train was crossing through the outer signal of that station it was stopped as a result of the cutting off of the vacuum hose pipe connecting the carriages.
The disconnection was in wagon No. 13675. The guard who has been examined as D. W. 2 in the case, looked out and found two miscreants jumping out from an open wagon and running away into the fields. The moon was shining andthe guard who was able to see two persons running away, was afraid to come out. But within a few minutes after the goods train stopped the driver and the fireman came out and the guard too joined them a little later and while walking along the side of the train they found two steel flats lying on the track north of wagon No. 50009. The two flats measured 2 ft. in length. If the measurements were correct, they would not have been the flats belonging to the consignment of the appellants as none of them was of that length. The guard took the flats and lodged them in the brake van. The goods train then reached Dwarapudi. At that place D. W. 2 sent a message (Ex. B.4) to the Deputy Controller, stating:
'Train stopped at 21-40 ten telegraph posts away from outer signal by thieves who disconnected pipe of Wrog. 13675 Skot to Horn. Two thieves jumped down and ran away into fields. By the help of fireman I have secured two iron flats and loaded them in BV. Again train started at 21/55 after creating vacuum. Please investigate and take necessary action'
Strangely enough neither at the outer signal where the train stopped as a result of the cutting of the hose pipe, nor in Dwarapudi railway station, did the members of the railway staff look into the open wagons for the purpose of seeing where-from the consignments were broken and removed. There is nothing in the evidence to show that the guard or the other members of the railway staff looked into the wagon of which the hose pipe was cut, namely wagon No. 13675, or into the appellants' wagon No. 50009 near which the steel flats were recovered. The railway guard says that he examined ail the wagons at Dwarapudi, but that must have been of a very superficial nature, as we find no mention of any consignment being tampered with, in the messages, sent by him to his superior authorities.
The goods train left Dwarapudi at 10 p.m. and hardly had it crossed the outer signal when the guard heard some peculiar noise. He then stopped the train by applying the brake. On looking out he saw about 15 persons unloading more steel flats from two wagons. He stayed in the brakevan and gave signal for the train to go back to Dwarapudi. But the driver would not do so, either because he did not understand the signal or was afraid of transgressing the rules by going into the station while the signal was on. The train therefore started towards the next station Kadiam and duly reached that place. The guard appears to have requested the Assistant Station Master on duty to send a few persons to check the train. But the latter refused as he was afraid of lurking thieves. The train then proceeded from that place and reached Rajahmundry. A police party then went to the place of offence and recovered some flats and arrested six persons in connection with the theft. The persons arrested were duly put up for trial which ended in their conviction.
6. According to the railway administration the loss of part of consignment belonging to the appellants must have been due to the theft in the running train before it reached Kadiam. The railway guard had sent a number of messages to the superior authorities immediately he discovered the theft. We have already referred to Ex. P.4, which was sent to the Deputy Controller from Dwarapudi. Ex. B.6 is the memo issued through the station-master to the police. Ex. B.7 is the communication from the Controller at Bezwada to the police at Rajahmundry. Ex. B.5 is the detailed report sent by the guard to the District Traffic Superintendent at Bezwada. In none of them there isany reference to the theft in wagon No. 50009. Nor is there any reference to the state of the consignment in wagon No. 13675.
No member of the railway staff ever cared to look into the wagons to find out as to which of them were tampered with either at Dwarapudi or Kadiam, or even at Rajahmundry. Admittedly, there was no theft after the goods train left Kadiam. There was no occasion at Rajahmundry for the raliway staff to get panicky that some lurking thieves might attack them. The help of the police was available there. It is somewhat strange that till the train arrived at Salt Cotaurs at Madras there was no attempt made to check the appellants' wagon. D. W. 2 in his evidence stated that 15 persons were unloading the steel flats from the train from two wagons. But no attempt was made to find out even at Rajahmundry as to which two wagons were tampered with by the miscreants. Under the circumstances it becomes extremely difficult to say that loss of the flats from the appellant's wagon took place at Dwarapudi. That the removal of the steel flats by the culprits must have taken place only from other wagons is clear from the fact that the articles subsequently recovered by the police did not correspond with the goods loaded in the appellant's wagon.
We have already referred to the fact that the two flats recovered near the wagon No. 50009 were only 12 ft. in length, which could not by any means correspond to any part of the appellant's consignment. Subsequent to the institution of the suit the respondent offered to deliver the appellants such of the steel flats recovered by the police if they could identify them as part of their consignment. There were three squares of 1 3/4 inches very nearly corresponding to the goods forwarded to the appellants. But they were 18 ft. 2 inches in length. The invoice sent to the appellants contained only squares of the length of 18 ft. The appellants were not able to identify any of the goods as belonging to them. Anantanarayanan, J. was of opinion that on the evidence it could not be said that any part of the articles recovered by the police belonged to the appellants. We agree. There is therefore not sufficient evidence in this case to show that the theft that took place near Dwarapudi was from wagon No. 50009 as well. We cannot but comment upon the utter indifference shown by the railway employees in not even trying to find out which of the wagons had been tampered with by the culprits. That they had been so tampered with was seen by the railway guard. The Assistant Station Masters at Dwarapudi, Kadiam and Rajahmundry knew immediately on arrival of the goods train at their stations, that the consignments in the open wagons had been tampered with. They should have at least provided further safeguards for securing the remaining part of the consignments. This nobody attempted to do.
The possibility of somebody taking advantage of the cutting of the binding wires in the open wagons and subsequently removing the valuable steel plates could not in the circumstances be even ruled out. Such lack of evidence as there is in this case to prove positively that the appellant's goods were removed by the thieves near Dwarapudi, is therefore entirely due to the administration. Anantanarayanan, J. has held that there was a large scale and organised raid by the thieves and that the open wagons containing the goods of the appellants was looted by these thieves. While we agree with the learned Judge that there was a large scale raid by the thieves, we are, with respect, unable to share his view that there is evidence to show that the wagon in which the appellants' goods were consigned was also subject to theft at that place. But we can say on the evidence that there is a great probability of the appellants' wagon having been also the subject oftheft at the place. Even so there is nothing onrecord to show how many of the steel flats were removed by the thieves. Let, us illustrate this by an example. Suppose the thieves were able to cut the binding wires of the appellants' consignment and removed two or three flats. It is just possible that the other portions of the consignment which was by then left unprotected was removed by somebody else. We are thus unable to ascertain from the evidence whether the entire loss took place prior to Kadiam as a result of the theft, or only subsequently. If the loss was not entirely at Dwarapudi, there is no proof that subsequently there was theft of steel flats in the running train at any other place.
7. The indifference displayed by the employees of the railway in the matter of checking up the goods at Dwarapudi, Kadiam and Rajahmundry where the train stopped after they became aware of the theft leads us to the next question as to whether the railway administration have taken proper care of the goods. In considering that question we would like to extract portions of Ex. B.5, a letter dated 13-1-1954 from the guard to the District Traffic Superintendent, Bezwada. That says:
'I stopped at DWP at 22 hours, to repeat the message to CRO Bezwada at which time only the patrolling police went towards APT for investigation. Though the train with her bright headlight was visible to the station staff, they never had an idea to come and see what had happened to the train. Again I started the train 22/8 soon after the down outer of DWP passed. I could hear some unusual sound in the train. As it was full moonlight, I could be able to see iron angles on both the sides dropping down. I myself with the intention of backing the train info DWP station stopped the train; applying vacuum and exhibiting danger signals. The train stopped and nearly 15 members got down from the train and ran away to the fields. On my backing signals, driver could not understand and he was starting the train forward. Even on my danger signals repeated, be could not understand. So I allowed the train to go forward and the thieves again got up into the train and started throwing angles on both sides, where I found and counted more than 105 angles. Even though through signals were given at KYM, to give the first hand information to CHO and police, I stopped the train and gave the oral information through phone. As (sic) I presumed the thieves got down there and ran away. Now I started the train KYM and arrived safely at RJY. In this connection I beg to bring to your kind attention towards the indifference of station ASM at DWP and KYM who refused to check the OGZ to satisfy ourselves whether the thieves were travelling in the train or not. Both of them bluntly refused to do so, even on the instructions of Controller. I am afraid that kind of indifference will cause encouragement to thieves and endanger the guards.'
The evidence in the case reveals that no police constable travelled by the train. The guard was also helpless. The Assistant Stationmasters at Dwarapudi and Kadayam were perhaps justified in not venturing to inspect the wagons to find out whether any thieves were hiding there, as they were likely to be out-numbered by the miscreants. But they could have telephoned for police help from Rajahmundry. As stated earlier, even atRajahmundry, no attempt was made to check the open wagons. The Deputy Controller of Bezwada who has been examined as D. W. 3 has stated in his evidence that he was not aware as to which of the wagons was robbed. He has stated that there are no rulers in regard to the checking of the open wagons when they are tampered with. This reveals a somewhat extraordinary state of affairs. The liability of the railway administration is not confined to closed wagons alone. It would equally extend to open wagons. It is no excuse to say that open wagons need not be checked.
There can be little doubt that if the railway administration had taken sufficient precautions by stopping the train at Dwarapudi itself and sending for help from Rajahmundry, a large part of the theft could have been prevented. But nothing was done. Again there is practically little evidence to show as to the number of employees working at Dwarapudi, and Kadiam and whether they could not have inspected the open wagons. Under the circumstances we are not satisfied that the railway administration has taken such care of the goods as a man of ordinary prudence would have donewith regard to his own property. Further, the railway administration was in a position to ascertain, at any rate at Rajahmundry, the extent of the loss and safeguard the remaining goods against further theft. This they did not do. The result is that it is difficult now to attribute the entire loss to the theft at Dwarapudi, particularly, when not even one steel flat belonging to the appellants' consignment was recovered by the police.
Anantanarayanan, J. has observed that it cannot be laid down as a general proposition that
'a fact of the kind involved in the present case should be proved by direct evidence, and to impose such a burden on the railway administration would imply that the railway administration should adduce evidence of person, who saw the entire theft or robbery at every stage with regard to every wagon.'
With respect we are unable to agree with this way of approaching the case. The theft that tookplace in the present case was seen by the railway guard, and that was near Dwarapudi railway station. It is not the case of the railway administration that there was theft in the running train at any other subsequent place, while the servants of the railway administration were unaware of the same. How much was stolen from each wagon and whether they took the precaution of preventing further thefts is a matter on which the railway administration could have produced evidence. But that they have failed to do.
The learned Judge has observed :
'It is true that a check could have been made of this wagon by detaching if, at an earlier stage of the journey, such as at Rajahmundry station. But the instructions do not appear to require this, or even to permit this. Since the train arrived in time at Salt Cotaurs, or almost in time, an extensive check of the contents of this express goods train could not have been made, nor I may add, could any railway employees, even acting in large scale concert, have looted the goods of the plaintiff's wagon.'
8. These observations, we are afraid may not apply to the peculiar facts of the case. The guard knew that a theft took place from two open wagons; other officers were appraised of this. Steel fiats were recovered near the appellants' wagon. The railway staff had merely to climb up the open wagon to see whether the fastening wires had been removed and the materials tampered with. That they did not do so, till the goodstrain reached Salt Cotaurs is a sad commentary on the amount of care that they bestowed on consignments even when there were sufficient materials which should have excited an ordinary man's Suspicion that something must have happened to the consignment in that wagon.
9. In a different context the learned Judge has stated that
'the railway administration must realise that responsibilities as bailee are very real, andthat when the occasion arises to justify them, this is not to be lightly regarded or taken as a matter of ordinary office routine.'
That unfortunately is what has happened in the instant case. The learned Judge has pointed out that there has been an inordinate delay in the disposal of the claim. We are not so much concerned with that matter. But what is important is that there is no evidence that the railway administration was diligent in taking that amount of care which they should have taken under the statute. The appellants will therefore be entitled to the damages claimed.
10. The question then is what is the amount of damage to which the appellant would be entitled. The learned trial Judge has held that the value of the goods short delivered will be Rs. 4443-7-9. We agree with him that the appellants will not be entitled to any hypothetical loss of profits, nor to any interest on damages. The appellants would therefore be entitled to a decree for Rs. 4443-7-9 with interest at six per cent. per (sic) from the date of the trial Court's decree. The appeal is allowed on the lines indicated above. The appellants will be entitled to proportionate costs throughout