1. The facts of this appeal are that the plaintiffs in the Court below were consignees in respect of goods consisting of 213 steel squares and 183 steel flats (of 18 feet length) weighing 20 tons. This consignment was despatched on 13-12-1953 by the Indian Iron and Steel Co., Ltd., Burnpur, West Bengal, at railway risk under R. R. No. 46111, through wagon N. W. 50009 K. C. 20 G. V. The record shows that this wagon was part of an Express Goods Train which ran between Bumpur station and Madras Salt Cottaurs.
When the first plaintiff obtained delivery at Madras, he found that the contents of the wagon had been disturbed, and so asked for open delivery with re-weighment. It was then discovered that the goods received at Madras weighed 239 maunds 1 seer as against the invoice weight of 547 maunds 10 seers. Since the railway administration (defendant) undertook delivery in terms of weight, not description of goods, it is the deficiency in weight that is material. The first plaintiff wrote on 4-1-1954 to the Chief Commercial Superintendent of the Southern Railway claiming Rs. 4443-7-0, the value of undelivered goods.
2. The defence to this action by the railway administration is that this express goods train was stopped twice by an organised band of thieves, who effected their purpose by disconnecting the vacuum pipe and thus bringing therein to a standstill, between Biccavole and Dwarapudi and again between Dwarapudi and Kadiam. This Rang looted the train, and the deficiency in this case entirely arises from this organised and large scale theft.
Ultimately certain articles thrown on the track were recovered, and it is interesting to note that the railway administration later offered to return 88 of those articles, alleged to be part of this consignment. But the records prove that those articles were not part of this consignment, and hence the appellants refused to take delivery of them. Another important fact is that, out of a much larger gang, six persons were later, apprehended by the railway police and successfully prosecuted. The administration disclaims any complicity of its servants, or any responsibility springing from neglect of its duties as bailee in respect of these goods.
3. The learned first assistant Judge of the City Civil Court tried this action on the merits, after framing the relevant issues. He came to the conclusion that the goods were lost by theft, in spite of duo care and caution taken by the railway administration (issue 4). He dismissed the suit with costs to the defendant-administration,
4. The legal principles applicable to this action are not in dispute. They are enunciated in Section 72(1) of the Indian Railways Act, and, broadly stated, the responsibility of the administration is that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872. Further, Sub-clause 3 of Section 72 specifies that this responsibility is not affected by anything relating to the responsibility of carriers in the common law of England or in the Carriers Act, 1865.
It is well known that a special and higher responsibility, not being part of the ordinary law of bailment, was imposed by the law of England on carriers. We are not now concerned with this, nor with the further statutory modifications of that liability. The present liability is primarily that of a bailee upon the standards specified in Section 151 of the Contract Act. following the principles expounded in the leading case of Coggs v. Bernard, I Sm. L. C. 175.
I might here observe that the criterion in Section 151 of the care that should be taken by a man. of ordinary prudence, under similar circumstances, in respect of his own goods, docs not imply any heroic measure of responsibility or conduct. Though, some men might defend their goods, even at the risk of injury to person or loss of life, that is not the standard to be imposed in respect of a bailee. This is of some relevance in the Present case, when we come to the facts regarding the actual raid.
5. The facts of the actual raid fully appear in the record from the evidence of the guard Durkaprasad, D. W. 2, and from contemporary reports, particularly Exs. B-4, B-6, B-7, B-8 etc. There were two stages of this raid, first at Biccavole where the train arrived at 21/17 hours. When D. W. 2 peeped through the formation on the right side of the track, he found two persons running info the field from the train, after the train had been compelled to stop on the sudden drop of vacuum.
There Can be no doubt at all that the vacuum pipe was disconnected, compelling the stoppage of the train, and a raid carried out. From 21-42 hours to 21-55 hours the train was stopped there, to secure two iron flats lying on the track. Again, when the train approached Dwarapudi, the guard looked out and saw iron angles dropping down on both sides of the track. He sent signals to the driver for backing the train, but the driver was unable to act upon them, presumably because of danger signals on the track.
So the train went forward and the gang of robbers again got into the train, and started throwing angles on both sides. The guard himself counted more than 105 such angles. Admittedly, this second part of stage of the raid occurred between 10-08 p. m. and 10-25 p. m. when the train reached Kadiam from Dwarapudi. The detailed report of the Guard, Ex. B-5, also shows that the station staff were so terrorised that they refused to proceed and to check the effects of the raid.
In Ex. B-35, the guard complains of the indifference of the station staff at Dwarapudi and Kadiam, but the record makes it clear that this was not indifference, but cowardice, Apparently as the record itself suggests in one context, the staff feared that the robbers might throw stones. As I said earlier, the matter was duly reported to the railway police a number of articles were recovered from the track, though unfortunately none of the articles belonging to the appellants were recovered, and certain of the miscreants at least were successfully prosecuted in due course.
6. In this state of evidence, the question is whether the railway administration (the defendant) is at ail liable for deficiencies in this consignment, applying the well known legal principles to the instant facts. I shall first summarise the contentions of the learned counsel for the appellants on this aspect; before I deal with them seriatim.
7. Learned counsel for appellants urges, firstly, that there is no intrinsic and satisfactory evidence to show that the loss of the articles in the open wagon in which the goods of appellants were carried, was really due to the raid. We have the evidence of the checker Sri Chakravarti, P. W. 1, to show that the goods were loaded in the open wagon, and secured in such manner as permitted, in the usual way at Burnpur. We have the evidence about the short delivery at Salt Cottaurs, Madras. We have no evidence directly proving that, during the organised raid by the thieves, the contents of this wagon were also looted.
Learned counsel pleads that the deficiency might have occurred later, by some railway employees taking advantage of the fact of the raid, to rob these goods. Secondly, it is argued that it was physically impossible that these heavy iron goods secured in an open wagon could have been stolen during the short period of the raid, particularly as goods of this description were not found lying on the track at all. Admittedly, other goods, mainly angles, were recovered. Thirdly, it is pointed out that such documents as Exs. B-9 and A-21 show that there were prior reports of suspected thefts on this track.
The railway administration ought to have taken steps to prevent their recurrence. If at least, an armed sentry had been sent along with the train, to fire a shot if any such incident occurred the thieves would have been frightened away and there would have been no appreciable loss. Finally, it is urged that the railway administration was callous in the extreme in replying to the complaint of the appellants, or in taking prompt and energetic action thereon. Certain essential records have also not been produced, and all the evidence available upon this aspect has not been adduced by the defendant-administration.
8. I have carefully considered these arguments in the light of the record and the authorities cited before me. Of the authorities cited, many relate to losses under totally different circumstances, particularly, from covered wagons. In addition to those authorities which I propose to specify, I might refer also to Barada Chandra v. Assam Bengal Rly : AIR1926Cal983 ; Secretary of State v. Nandram : AIR1929All749 ; and Mathra Prasad v. G. I. P. Rly., Co : AIR1927All751 .
But, unfortunately, there is no domain of case-law where precedents are less helpful in determining such a responsibility as the instant one and obviously, each case will have to be assessed upon its own facts; the decisions can but reiterate the broad principles which I have earlier referred to, and which are not in dispute. Thus, in the South Indian Rly. Co., Ltd. v. V. M. S. P. Bros, : AIR1932Mad545 , there was no actual evidence of theft.
Further, the learned Judges specifically found that unknown persons must have been able to break open a closed wagon, and to get into it while it stood on the platform at Erode station. They also found that the train Could not have been entered into while it was actually running between Erode and Pasur. 'Wilful neglect' was held established under these particular circumstances In Brindraban v. G. I. P. Rly. Co., : AIR1926All394 , we have again to deal with a closed wagon, with the absence of any device to exclude thieves, and the frequency of prior thefts, in respect of which no precautions had been taken.
In Surat Cotton Spinning and Weaving Mills Ltd. v. Secy. of State a presumption under Section 114, Illustration G of the Evidence Act was drawn, because certain vital evidence had been suppressed by the railway administration. This pointed to a complicity in the theft by some members of the railway administration, which the Court assumed as a justified inference on the facts. In Kashiram v. E. I. Railway Co., : AIR1927Pat9 , 'wilful neglect' was held established where the railway had failed to provide any communication between the guard and the driver of the engine even for an emergency. I cannot be said that any of these cases has much bearing upon the install facts.
9. I have carefully considered the arguments advanced and the probabilities stressed by learned counsel for the appellants, I have no doubt whatever that, not merely a large scale and organised raid by thieves occurred in this case, but that the open wagon containing the goods of the appellants was looted by these thieves. Obviously, we cannot lay down a general proposition that a fact of this kind should be proved by direct evidence.
If such a burden were to be imposed on the railway administration, it would imply that the administration is liable as a bailee, unless it could adduce evidence of persons who saw the entire theft or robbery at every stage and with regard to every wagon. Clearly, the administration is entitled to plead that the fact could be established by circumstantial evidence also. The evidence of the guard that he saw 15 thieves, does not at all appear to be conclusive that no more look part.
On the contrary, it is quite likely that a much larger number took part, and that the guard would see this number alone. Again, the evidence relating to the recoveries does not seem to me to exclude the possibility that many other goods in this train were looted, and thrown on the track, which were not recovered at all. We simply do not know how many people organised the raid, and what arrangements the thieves had made for taking away the articles as they were thrown on the track.
It is true that the goods of the appellants were in a open wagon, secured in such fashion that the thefts could not have happened without the use of at least a hammer, and without the cooperation of several men. But when the thieveswere audacious enough to cut or disconnect the vacuum pipe, and carry out a large scale raid, taking advantage of the lonely locality and the night time, I do not see why they should not have brought implements, in order to remove all these articles.
On the contrary, the alternative hypothesis that taking advantage of this raid, railway employees at some later stage might have removed these articles for their gain, seems to me to he quite fantastic. It is not supported by a single fact or probability in the record. Learned counsel for the Administration has furnished me with the actual transit particulars of this train and it is at least clear that the train arrived only two hours late at Tondiarpet marshalling yard.
It is true that the Register of timings possessed by the guard has not been produced, but the evidence is that this was lost during the Godavari floods. There is no evidence per contra. It is true that a check could have been made of this wagon, by detaching it, 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 Cottaurs, 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 employee, even acting in large scale concert, have looted the goods of the plaintiff's wagon.
Rule 110 of the rules referred to by learned counsel, merely requires detachment or readjustment, of a open truck, where the load is apparently shifted, or where such adjustment is necessary. It is not clear from this rule that this has any reference at all to the measures to be taken after a theft or similar incident. Presumably, this applies to the times when the guard makes his inspection, at the commencement of the journey, and before reaching the destination. As the rules stand, I see nothing in the rules to justify the argument that the wagon should have been detached and the contents inventoried, and checked earlier by the guard himself. In any event, this will not affect the main issue of fact.
10. On the whole. I am thoroughly satisfied that a large scale raid by thieves took place, and that the contents of the wagon of the plaintiffs suffered loss during this raid, and because of the activities of the thieves. It is true that this is established by circumstantial evidence alone, but no other inference is possible upon the facts and probabilities. As regards prior thefts, there is only certain evidence that one or two suspected instances were reported in the recent past.
It is difficult to see what measures the railway administration could have taken, at least with regard to open wagons secured in the usual manner, short of allotting an armed sentry or guard to each goods train. Pilferages in the previous cases appear to have been mere attempts, and were probably treated as isolated instances I do not see that there was a responsibility on the railway administration to send an armed escort with this particular goods train.
11. In result, therefore, I agree with the finding of the learned Judge below on the main issue of fact, that the loss in this case was wholly due to the raid, and that the administration was not guilty of any neglect in this respect. The record does not justify the inference that the administration failed to discharge its duties as bailee, and was hence bound to make good the loss.
12. But, before parting with this appeal, I must observe that the subsequent conduct of the administration in dealing with this claim, has been unsatisfactorily in the extreme. The administration replied to the claimant alter a lapse of nearly ten months, whereas, considering the gravity of the loss and the understandable chagrin and disappointment of the appellants, the matter should have received the most expeditious, thorough and sympathetic consideration.
Indeed, it may very well be that the bitterness and frustration resulting from the very indifferent way in which the Administration chose to justify and explain its own responsibilities as bailee in the matter, once the question was mooted, have been largely instrumental in bringing about this action. For this reason, I disallow costs to the railway administration-defendant throughout, though in dismissing the appeal costs must usually follow the result.
Further, I desire to place on record one or two constructive suggestions in the context of the present facts. Firstly, the railway administration must realise that its responsibilities as bailee are very real, and that when the occasion arises to justify them, this is not to be lightly regarded, or taken as a matter of ordinary office routine. Claims of this character should receive ton priority as matters requiring urgent attention at a high level of efficiency and responsibility.
13. The circumstances should not merely be thoroughly investigated, but the claimant should be assured that everything is being done to investigate the claim and to make good the loss, if the railway employees have been to blame in any way, Also, even if the railway administration is not liable as bailee, because of such unfortunate circumstances as au organised raid by outside thieves, the administration would do well to consider the claim sympathetically, without prejudice to its own stand. With these observations the appeal is dismissed, with the direction that parties should bear their own costs throughout.