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Union of India Vs. the United India Fire and General Insurance Co. Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberO.S.A. No. 81 of 1976
Judge
Reported inAIR1981Mad162
ActsRailways Act, 1890 - Sections 77(1); Indian Contract Act, 1872 - Sections 151, 152 and 161; Evidence Act, 1872 - Sections 114(9)
AppellantUnion of India
RespondentThe United India Fire and General Insurance Co. Ltd. and anr.
Appellant AdvocateB.T. Seshadri, Adv.
Respondent AdvocateS. Sampath Kumar, ;A.P.S. Kasturirangan, ;O.K. Sridevi and ;V.K. Thambi, Advs.
Cases ReferredUnion of India v. Rajendra Mills
Excerpt:
fifty bales of fully pressed cotton were despatched to a textile company for delivery at a certain railway station the goods were unloaded with the help of the coolies engaged by the textile company and kept adjacent to the goods shed as there was no space in the covered goods shed. fire was noticed in those fifty bales and the station master on duty as well as all the staff of the railway and others attempted to put out the fire and the fire brigades also were summoned. after the fire, the goods were assessed by the surveyor deputed by the textile company. after giving credit to the salvage value, the insurance company and the textile company filed a suit for the recovery of the amount being the net loss suffered by them on the ground that the loss occurred due to the negligence or.....ismael, c.j.1. this is a defendant's appeal against the judgment and decree of -ratnavel pandian. j. rendered in c. s. no. 116 of 1972, on the me of the original side of this court. since most of the fact5r are not in controversy. we are not elaborately referring to the pleadings as well as the evidence and we shall refer only to that part of the pleadings and the evidence which will enable us to concentrate on the crucial questions involved for decision in this appeal.2. there were two plaintiffs in the suit, the first being the insurance company and the second being a company by name algappa textiles (cochin) ltd. the admitted facts are - 50 bales of fully pressed cotton were despatched by messrs e. i, c. khamgoan on 21-1-1971 for delivery to the second plaintiff in the suit at pudukad.....
Judgment:

Ismael, C.J.

1. This is a defendant's appeal against the judgment and decree of -Ratnavel Pandian. J. rendered in C. S. No. 116 of 1972, on the Me of the Original Side of this court. Since most of the fact5r are not in controversy. we are not elaborately referring to the pleadings as well as the evidence and we shall refer only to that part of the pleadings and the evidence which will enable us to concentrate on the crucial questions involved for decision in this appeal.

2. There were two plaintiffs in the suit, the first being the Insurance Company and the second being a company by name Algappa Textiles (Cochin) Ltd. The admitted facts are - 50 Bales of fully pressed cotton were despatched by Messrs E. I, C. Khamgoan on 21-1-1971 for delivery to the second plaintiff in the suit at Pudukad railway station between Cochin and Shoranur. The goods arrived at the Pudukad railway 'station on 12-21971. The goods were unloaded with the help of coolies engaged by the second plaintiff itself on 13-2-1971. After the goods were unloaded, they were kept adjacent to the goods shed as there was no space in the covered goods shed for stacking these 50 bales. On 28-2-1911, at about 3-45 p. m. fire was noticed in these 50 bales and the Station Master on duty as well as the railway staff and others attempted to put out the fire and fire brigades also were summoned and the first Brigade arrived at 4-27 -p. m. and the second Brigade arrived at 6-30 p. m. After the fire, the goods were assessed and according to the plaintiffs, the salvage value of the goods was only Rs. 15,000. They instituted the present suit for recovery of a sum of Rs. 65,53170 with interest at the rate of 6 percent per annum from the date of presentation of the plaint till date of payment. In paragraph 4 of the plaint it was stated that the second plaintiff came to know that on 28-2-1971 there was a fire accident at Pudukad railway station and the entire 50 bales of cotton belonging to the second plaintiff were destroyed by fire, in the custody of the defendant; the second plaintiff immediately deputed a surveyor to assess the damage as well as to know the cause of the fire accident, all the bales of cotton were totally unfit for the Purpose for which they were bought by the second Plaintiff: they managed to sell the salvage for Rs. 15.000, being the best price available for the same. In Paragraph 6 of the Plaint. they averred that the loss occurred entirely due to the negligence and/or misconduct of the servants of the defendant who failed to exercise reasonable care as is expected of it in law, m safeguarding the consignment against any fire accident, and in having the reasonably required equipments to extinguish the fire. In paragraph 6 of the plaint, it was averred that the total loss suffered by the second plaintiff was Its. 78,658-54 being the value of the 50 bales of the cotton Plus Rs. 1513-16 being the survivor's fees 'and giving credit to Rs. 15,000 being salvage value, they have suffered a net loss of Rs. 65-531-70 and only with reference to this amount. they instituted the suit.

3. In the written statement filed by the defendant appellant herein among other a pleas the defendant stated in paragraph 2 that 50 bales of fully Pressed cotton were consigned by East India Corporation on 21-1-1971, and the railway receipt was taken in the name of 'self': the railway receipt was endorsed in favour of the second plaintiff; the consignment was received at destination on 12-2-1971; and as there was no space in the covered goods shed, these 50 bales of fully pressed cotton were unloaded and kept adjacent to the goods shed: the station master immediately informed the second plaintiff to take delivery of the goods; but the second plaintiff did not take delivery of the goods in spite of several reminders from the station master: the bales were fully covered with Tarpaulins and special watch was kept in respect of the bales kept adjacent to the goods shed: on 28-2-1971 in the afternoon it was reported to the station master on duty that smoke was coming from these cotton bales covered with tarpaulins and immediately the station master, with the aid of the station staff there extinguished the fire and also summoned the fire brigade who immediately arrived At the spot, put out the fire shortly without loss of time. In paragraph 4 of the written statement it is further stated that the defendant is not liable to the plaintiffs for the damage or loss and as the suit consignment was received at destination on 12-2-1971 and was unloaded and kept adjacent to the goods shed. the second plaintiff was asked to remove the goods immediately thereafter and several reminders were sent to the second plaintiff to remove the goods from the station Premises, but the second plaintiff would not do so- as there was no space in the goods shed the bales were kept adjacent to the shed fully covered with tarpaulins. The railway protection force staff also were on duty keeping a special vigil in respect of the bales kept adjacent to the shed; it was only on 28-2-1971. long after the termination of transit, the bales were affected by fire and , immediately steps were taken to put out the fire; the cause of the fire was not known -and the defendant's administration had exercised all care as a prudent man would do under the circumstances; the second plaintiff had deliberately refused to take delivery of the goods in spite of several reminders from the station master and the second plaintiff had used the railway promises as a warehouse or a godown which they were not entitled to do, Admittedly, there was no reply statement filed to the written statement.

4. The learned Judge framed the following issues for trial having regard to the pleadings and certain other contentions raised by the defendant-appellant in the case-

1. Whether the Railway administration is absolved from liability for the damage for all or any of the reasons mentioned in Para 4 of the written statement?

2. Whether the railway administration had taken proper care as a bailee?

3. What is the extent of the damage and value thereof?

4. Is the suit not maintainable for want of proper notice?

5. To what relief, if any. is the plaintiff entitled?

The learned Judge by his judgment and decree dated 13-12-1974 answered the issues in favour of the plaintiffs and decreed the suit for a sum of Rs. 64,182-93, with interest there on at 6 per cent per annum from the date of suit till date, of payment and for proportionate costs of suit. It is against that judgment and decree, the defendant in the suit has preferred the above appeal.

5. Mr. G. Ramaswami learned counsel for the appellanta did not argue anything regarding the finding of the learned Judge on issues No. 3 and 4 and the learned counsel concentrated his arguments only on the finding of the learned Judge with regard to issues Nos. 1 and 2. Hence the point that arises for determination is whether the appellant as a bailee of the goods entrusted to it for carriage had taken due care that is expected of it in that capacity and whether the appellant had been guilty of any negligence in this behalf so as to make it liable to Pay damages to the plaintiffs.

6. According to the learned counsel for the appellant, the liability of the Railway, as the law stood at the relevant time, was that of a bailee and. in this case, the railway has placed all the materials in its possession for showing that it had taken due care and caution as a man of ordinary prudence would do with regard to the goods of similar quantity and value and therefore the appellant cannot be made liable for the loss, if any caused to the respondents by the fire accident. The learned counsel further contended that the evidence placed before the court established that the fire was a pure accident and not as a result of any negligence on the Dart of the appellant and as a matter of fact even the respondents had not proved that the fire was due to the negligence of the appellant. According to the learned counsel for the appellant, the facts in the present case. as established by evidence, clearly show that even after a reasonable time from the date of unloading of the goods at Pudukad railway station, the second plaintiff had not taken delivery of the goods as it ought to have done and, as a matter of fact, had consented to the goods being stacked in the manner it was done by its own conduct by supplying its own tarpaulin to cover the goods and posting two of its watchmen to guard the goods in' question. The learned counsel further contended that the learned Judge who decreed the suit of the respondents herein had not said anything about this aspect of the case of the defendant-appellant, put forward in the written statement and sp6ken -to by the witnesses examined on behalf of the appellant particularly when none gave evidence on behalf of the second plaintiff and the two witnesses who were examined on behalf of the plaintiffs were only the Superintendent of the Madurai Insurance Co., examined as P. W. 1. and the Insurance surveyor and loss :assessor. examined as P. W. 2.

7. Having regard to these submissions, we shall now refer to the facts as emerging from the evidence of P. W. 1, the Rest Giving Stat4 'on Master who was working at Pudukad railway station from November, 1970 onwards and who was in charge of the railway station till 1 p. m. on 28-2-1971. when he handed over charge to D. W. 4 during whose period the fire accident took place. D. W. 1 has stated in his evidence that there were two mills in Pudukad, the second plaintiff and Kerala Larksome Mills, for whom cotton bales were received at the Pudukad railway station and the station was usually setting only fully pressed cotton bales and the goods shed at the station was of the dimension of 40' x 18' and before the receipt of the 50 bales in question, there were 896 bales in the railway station of which 248 bales were accommodated in the goods shed and the balance of the bales were kept adjacent to the goods shed on the platform. He has also given evidence that from November. 1970 when he came to the Pudukad station these cotton bales were kept in the platform and covered with tarpaulins; when there was no space in the goods shed. He further stated that there were two watchmen for the second plaintiff and they were watching the goods in question. He narrated as to what happened on 28-2-1971, when at 3.45 p. m. that day there was a fire and what subsequent steps were taken by him and D. W. 4 to put out the fire. The most significant thing with regard to the evidence of D. W. I is there was no cross examination of D.W. 1 on his statement that on the arrival of the goods he 'had informed the second plaintiff to take delivery of the goods and even subsequently he had reminded the second plaintiff about the same and notwithstanding this. the second plaintiff did not take any steps to take delivery of the goods. In particular. there was no attempt on the part of the second Plaintiff to cross-examine either D. W. I or D. W. 4 with regard to the statement contained in 'Paragraph 4 of the written statement filed by the appellant herein that the second plaintiff had deliberately refused to take delivery of the goods in spite of several reminders from the station master and the second plaintiff had used the railway premises as a warehouse or godown which they were not entitled to do. This aspect assumes significance in view of the fact that admittedly some of the bales consigned to the second plaintiff and unloaded earlier to 13-2-1971, were still both inside the goods shed as well as outsid6 the goods shed when the suit consignment was, unloaded on 13-2-1971, It is only the court that put the following questions to D. W. 1, in the course of the examination of D. W. 1, and elicited replies-

'Question by court- Have you written to the authorities for watch and ward,?

Ans: We have not written.

Qn: You said that as the Alagappa Textiles did not pay the R. R. they could not clear the goods immediately. In your experience there, in how many days they have to clear the goods?

Ans; Even months together they took.

Qn: That is because they could not get the R. R.?

Ans: That is what they say.

Qn: You also said that you have been sending intimations to clear these bales: Is there anything in writing?

Ans: We have sent written intimations as well as oral.

Qn: Have you got any despatch book now?

Ans: I do not have'.

8. Even though the learned Judge has put these questions to D. W. I and elicited answers referred to above. the learned Judge does not even make a comment on this evidence of D. W. 1. As a matter of fact, the learned Judge has not said anything about this aspect of, the case. Consequently there is no escape from the conclusion on the following factual Position-

1. The goods were unloaded on 13-21971, at Pudukad railway station by the coolies of the second plaintiff itself and therefore the second plaintiff had knowledge of the arrival of the goods.

2. D. W. 1 had intimated to the second plaintiff about the arrival of the goods and asked the second plaintiff to take delivery of the goods and he did so more than once.

3. The goods were stacked outside the goods shed on the Platform in view of the fact that the goods shed was already full of cotton bales, 240 in number, and could not contain further bales and at the relevant time, there were totally 898 bales at the railway station.

4. The second plaintiff itself had posted two of its watchmen to guard the cotton bales in question, probably among other cotton bales belonging to the second plaintiff.

5. There was no cross-examination of D. W. I or D. W. 4 on the facts which they put forward in the written statement that the railway Protection staff also were on duty keeping a special vigil in respect of the bales kept adjacent to the shed, even though D. W. 1 was asked in his evidence as to whether any watch and ward staff was engaged to which he gave a negative reply.

6. The fire broke out on 28-2-1971. and D. Ws. I and 4 and all the staff of the railway station took all possible steps to extinguish the fire as quickly as possible.

9. The question then arises for consideration from these facts as to what is the inference to be drawn with respect to the rights and liabilities of the parties. It is not in dispute that the ability of the railway is that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872. Section 77(1) and (2)of the Indian Railways Act, 1890asit stood, prior to the amendment of the Act by Act 71 of 1972 reads as follows-

'Responsibility of railway administration after termination of transit-

(1) A railway. administration shall be responsible as a bailee under Ss. 151, 152 and 161 of the Indian Contract Act 1872, for the loss, destruction, damage, deterioration, or non-delivery of goods carried by railway within a period of thirty days after the termination of transit;

Provided that where the goods are carried at owner's risk rate the railway administration shall not be responsible for such loss destruction, damage, deterioration or non-delivery except on proof of negligence or misconduct on the part of the railway administration or any of its servants.

(2) The railway administration shall not be responsible in any case for the loss, destruction. damage, deterioration or non-7deliverv of goods carried by railway, arising after the expiry of the period of thirty days after the termination of transit.'

10. It is with reference to this position, Mr. G. Ramaswami. learned counsel for the appellant, placed strong reliance on the -decision of the Supreme Court in Union of India v. West Punjab Factories Ltd.. : [1966]1SCR580 . The relevant passage in paragraph 17 at P. 401 is this:-

'The position of law in India is slightly different from that in England for here the railway is only a bailee in the absence of any special contract and it is only when it is proved that the railway did not take such care of the goods as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed, that the railway's responsibility arises. A warehouse man is also a bailee and therefore the railway will continue to be a ware houseman under the bailment even if its responsibility as a carrier after the lapse of a reasonable time after arrival of goods at the destination come ' s to an end. But in both cases, the responsibility in India is the same namely that of a bailee, and 'negligence has to be proved.' In view of the rules to which we have already referred, it is clear that the railway's responsibility as a warehouseman continues even it its responsibility as a carrier comes to an end after the lapse of a reasonable time after the arrival of goods at the destination., The responsibility as a warehouseman can only come to end in the manner Provided by Ss. 55 and 56 of the Railways Act, and the rules which have been framed and to which we have already referred as to the disposal of unclaimed goods.

The learned counsel placed strong reliance on the expression underlined (hereinto ' I above, namely. 'negligence has to be proved'.

11. The next decision on which reliance was placed by the learned counsel is that of the Calcutta High Court in Moolji Sikka and Co. v. B. N. Rly. Co. Ltd. : AIR1929Cal482 . In that judgment it was observed-

'Under Section 151, Contract Act. The bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk. quality and value as the goods bailed. The onus was of course on the company to show that they took such care of the moods. In the present case the goods were stacked in the open and the evidence seems to show that while no one knew exactly how they had caught fire, the fire must have been caused by some passers-by throwing a burning cigarette or cigar and on the around where they were. The statement of their plaintiff that the goods were actually carried to the godown has not been accepted and the evidence seems to show that it must have been with the consent of the consignor that the goods were stacked where they were. There is no suggestion that there was anything unusual or dangerous in stacking the bags of biri leaves in the open. What is ordinary diligence must be considered having regard to the habits of business and the general customs of the community and in the present case I think taking all the circumstances' into account that the facts do not show that the company failed to exercise ordinary care. There is no evidence that these goods were particularly inflammable or that there was any reason to suspect that a lighted cigarette might be thrown near the bags by a passer-by. Considering the customs and habits of business of the country I do not think that the conduct of the company in allowing these bags to remain in the open Pending their dispatch shows that they failed to exercise ordinary diligence, and therefore, I hold that the company was not liable in this case for damages.' We are of the opinion that this decision has particular application to the facts of the present case, We have already referred to the fact that there was a moods' shed in the premises in question of the measurement of 40' x 1W and at the relevant time there were nearly 898 bales of which 248 alone were kept in the goods shed and the rest which included the suit consignment were kept on the platform. As a matter of fact, as we pointed out already, the goods of the second plaintiff itself were inside the goods shed as well as outside the goods shed on the relevant date when the fire took place and the goods in question were covered with tarpaulin provided by the second plaintiff and the second Plaintiff had posted two watchmen to guard the goods. In those circumstances, it is not unreasonable to draw an inference that the goods were stacked on the platform outside the goods shed, having regard to the non-availability of any, further accommodation within the goods shed only with the consent of the second plaintiff. If so, it is not now open to the second plaintiff to contend that the fire was the result of negligence or failure on the part of the bailee to take due care of the goods in question. The learned Judge himself after referring to the evidence of the parties has held thus-

'However, I am of the view that merely because the plaintiffs deputed their own watchmen to have a watch over the goods the responsibility of the defendant is not absolved, and the non-examination of the watchmen will not In any way affect the claim' of the plaintiffs. when the defendant has not alleged anything against the plaintiffs' watchmen. Though the evidence tends to show that no one knew exactly how the bales caught fire, in fact this is a factor which goes against the defendant, because it is the duty of the defendant and its servants to have noticed the cause of fire. The cumulative effect of all these circumstances would lead to only one irresistible Inference that the defendant had not provided adequate protection to the goods especially when these combustible goods were stacked in the open platform without any fence. So the conduct of the defendant in allowing these combustible materials to remain in the open platform pending their delivery is tantamount to failure on their Part to exercise even the ordinary diligence that a prudent man would take.

For the reasons already indicated we an unable to agree with this, reasoning and inference of the learned Judge.

12. One other reasoning on which the learned Judge sought to rest his conclusion was as follows-

'As I have already Pointed out, it is the bounden duty of the defendant to produce reliable and unassailable evidence that they have taken as much care of the goods bailed to them as a man of ordinary prudence would under similar circumstances take of his own moods of the same bulk quality and value and in my opinion the principles of res: ipsa loquitur and the Presumption under Section 114(g) of the . Evidence Act, M the absence of the porter's evidence may be applied to the facts of this case From the foregoing discussion. the defendant cannot be said to have discharged its onus of proving that it has exercised all Possible and reasonable care and caution which a prudent man would do if the goods were his own and thus it has to be taken that the steps taken by the defendant to secure the goods against loss cc damages were mostly inadequate.'

13. A reference to the non-examination of the porter's evidence requires an explanation. In the course of the cross examination of D-W. 1 he was asked-

Ques: How many watch and ward personnel do you have in the station?

Ans. No watch and ward personnel are there in -the station. There is a platform Porter to look after the goods kept in the platform.

Ques: Apart from his normal duties. he has to look after this?

Ans: Yes.'

It is with reference to this evidence of D. ~W. I only. the learned Judge referred to the non-examination of the Porter. Having regard to the positive and established and even admitted facts to which we he' drawn attention the non examination of the porter does not in any way affect the question at all and we are unable to see as to how the principle of res ipsa loquitur or the applicability of Section 114(a) of the Evidence Act arises. It is worthwhile pointing out that D. W. .1 was specifically asked as to what trains passed through the Pudukad railway station on 28-2-1971. He stated that a train came to the station at 1-10 p m. and, when the, engine, arrived at platform the time was 1-10p.m.and he detected the fire at 3.45p.m the same day. He was further asked, the following question and answer-

Ques: As a station master can you tell the court whether the engines that are Passing through your station on the main line as well as on the goods shed line, are provided with spark arrestors.?

Ans: As far as I know spark arrestors are provided for all engines that pass through our station'.

There is no positive finding by the learned Judge as to the origin or the cause of the fire. As a matter of fact, the cause of the fire was found to be unknown.

One of the questions put to D. W. 1 was whether the second plaintiff had not cleared the goods consigned to them at Pudukad railway station. The answer D. W. I gave was that they were not in possession of the railway receipt for the purpose of clearance of the goods. It is with reference to this only, even the learned Judge when he put the questions, which we have already extracted, referred to D. W. I having stated that Alagappa Textiles did not pay the R. R. to clear the goods in the case. We are of the opinion that mere non-possession of the railway receipt or pay for that R. R. could not have been the sole cause for their not clearing the goods by the second plaintiff in this case. As we have pointed out already, even on 12-2-1971 and 13-2-1971. when the suit consignment reached Pudukad railway station and cleared, there were already goods belonging to the second plaintiff stacked inside as well as outside the goods shed of the railway station, not taken delivery of by the second plaintiff. In view of this, we are prepared to accept the case of the appellant put forward in their written statement that the second plaintiff had used the railway premises as a warehouse or godown probably because the second plaintiff itself did not have the necessary space for stacking these goods.

14. It is against the background of this only we shall have to consider the further arguments advanced by the learned counsel for the respondents. All that the respondents contended about the alleged negligence on the part of the appellant was that the appellant having undertaken to carry the goods, should have provided a bigger shed at the railway station and should have possessed necessary fire fighting equipment for fighting fire in the event of such fire occurring and should have had special staff for the purpose of safeguarding and Protecting the goods so stacked.

One of these contentions was based on the evidence of D. W. 1 who stated that at the time of the fire accident on 28-21971, two fire buckets, one fire extinguisher and one water bucket were available and after the fire accident. an improvement to fight the fire has been made by installation of fire extinguishers. We are of the opinion that this does not acquire any significance in view of the fact that this is the first fire which took Place at the Pudukad railway station. The appellant is not expected to anticipate the failure on the part of the consignee like the second plaintiff to take delivery of the goods within a reasonable time after the unloading thereof and also anticipate a fire and to provide for all contingencies.

15. The learned counsel for the respondents however relied on a decision of this court in Union of India v. Raiendra Mills : AIR1971Mad53 . We are 61 the opinion that the said decision is not of any assistance whatever to the respondents. As a matter of fact, the learned Judges in this case extracted a passage from the judgment of the Calcutta High Court in Indian Trade and General Insurance Co. Ltd. v. Union of India, : AIR1957Cal190 , at page 194 and approved of the same. The passage -that occurs at page 194 of the judgment of the Calcutta High Court is to the following effect-

'The responsibility of the railway administration therefore, is that of a bailee under the provisions of Sec. 151 of the Contract Act. It has to take as much care of the goods bailed to it as a man of ordinary prudence would, of his own goods of the same, bulk, quality and value, and by virtue of the provisions of Sec. 152, is not to be responsible for any loss; destruction or deterioration if it has taken the care which Section 151 enjoins upon it, The result of the statutory provisions, therefore, may be summarised as follows-

1. The railway administration must take as much care of the goods while under its control as a man of ordinary prudence would take of such goods if they were his own.

2. The railway administration is liable for the loss, destruction etc., if it happens by its default or negligence.

3. When loss, destruction etc. occurs, it is not for the plaintiff to prove, in the first instance, as to how it. happened.'

After extracting the above passage and approving of the same the learned Judges of this court extracted another passage dealing with burden of proof to the following effect-

'The burden of proof of the issue as to negligence ultimately rests with the plaintiff. The plaintiff has to satisfy the court that the defendant was negligent but the duty of showing how the consignment was dealt with during transit lies on the railway administration. as a matter within its special knowledge. As the law does not cast on the plaintiff the obligation of proving how the loss arose and as it imposes on the defendant the duty of showing how the goods were dealt with while under its control, the latter must first adduce evidence disclosing its treatment on the goods and the plaintiff may rely on that evidence in addition to any tendered by him to show that the loss had occurred by reason of defendant's default or negligence or that the loss could not have occurred but for such default or negligence. If the defendant does not adduce all the evidence at its command the plaintiff may, in proper cases, ask the court to make a presumption under Section 114(g) and to come to the conclusion that the evidence which has been withheld would have gone against the defendant.'

We are of the opinion that having regard to a Bench (decision) of this court approving of the above law, laid down by the Calcutta High Court, in this particular case, the appellant had placed before the court all the materials it had for the purpose of showing how the goods were dealt with by it after they reached the Pudukad railway station and the respondents had not been able to show that there was any negligence or default on the part of the appellant. As far as the facts which the Bench of this court was considering in the decision in Union of India v. Rajendra Mills, : AIR1971Mad53 , were concerned, they were entirely different. That was a case in which there was a transhipment of the goods sent at railway risk and there was fire. The learned Judges referred to the evidence in this behalf as follows-

'The question is weather the defendant in this case has exonerated itself by showing that they have taken due care and caution in the carriage of the goods, From the evidence discussed above, it seems to us that the railway has not discharged the onus by showing that all Possible care and caution has been taken in this case. It is seen that the goods were transhipped from the narrow gauge to broad gauge at Murtazapur on 5-3-1959, in the suit wagon without the same being actually tested for water tightness. D W. 1 has admitted that he assumed tilt the wagon was 'water tight' as it was labeled as 'stenciled water tight' and that he was not aware as to when the wagon was last overhauled. From this it is clear that the consignment of the cotton bales was placed in a wagon which was not actually tested to be water tight. There is another factor which is also significant. The goods were transhipped by a contractor one Kammal from the narrow gauge to broad gauge and the transhipment according to D. W. 1 would have taken 30 to 45 minutes. It is not known how the goods were handled by the contractor or his servants during transhipment. A doubt arises as to whether there was any negligence by the said Kammal or his servants during the transhipment and it cannot be ruled out as the said Kammal or any one of his employees have not been examined. The evidence of D.W. 1 that the transhipment , was done under his supervision is too much to be believed as he could not be expected to have been present throughout on the scene during the course of transhipment, which admittedly took 30 to 45 minutes. Further, there is no evidence before the court as to the history of the wagon as to when it was overhauled and stenciled. Though D. W. 6 the train examiner has deposed that after the fire was extinguished there was a mechanical examination of the wagon, that he found the wagon without any defect and that he immediately released for traffic for reloading, it is difficult for us to believe that there was such a thorough examination as spoken to by this witness for, if there was no defect in the wagon, fire should have originated from inside from spontaneous combustion, which is not the case put forward by the defence in this case, or the railway must have done something or other or something must have happened inside the wagon which led to the fire. We are left in this case with the doubt as to the origin or the cause of the fire. In this connection. we have to note that there was a departmental enquiry conducted on the cause of fire by the traffic inspector sometime after the fire was Put out and this is spoken to. by D. W. 2, the Assistant Station Master at Balharsha.

The said enquiry should have thrown some light as to the cause of the fire. But that report of the enquiry officer is not before the court. The enquiry officer who could have thrown considerable light on this question has not also been examined. It is not known who were all the witnesses who were examined in the said enquiry. and what was the result of the enquiry. In the absence of the examination of the enquiry officer who enquired into the cause of the fire immediately after it occurred. we are not prepared to hold that the fire was only accidental The defendant cannot be held to have discharged the onus of showing that it had exercised all reasonable care and caution in dealing w1th the suit consignment. In the circumstances. We are of the view that the principle of res ipsa loquitur and the presumption under Section 114(9) of the Evidence Act may be applied to the facts of this case.'

16. As we pointed out already the facts of the Present case are entirely different and the fire in this case occurred on the Platform of the railway station when the goods were stacked and not during the course of transit and there was no question of the appellant not placing before the court any material which was specially within its knowledge.

17. In view aof all the circumstances discussed above we allow the appeal and reverse the judgment and decree of the learned Judge and dismiss the suit with costs both here as well as before the trial Judge.

18. Appeal allowed.


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