S. Ratnavel Pandian, J.
1. The unsuccessful plaintiffs in O.S. No. 247 of 1974 on the file of the Court of the Subordinate Judge, Coimbatore, are the appellants herein. They filed the suit for the recovery of a sum of Rs. 44,287-15 from the respondent-defendant viz., the Southern Railway, towards the damages alleged to have been suffered by them due to the loss of cotton caused on account of the alleged negligence and default of duty on the part of the servants of the defendant railway. It was alleged that the first plaintiff despatched 135 bales of full pressed cotton from Washim Railway Station in Madhya Pradesh State to Pulankinar Railway Station in Madras State (now Tamil Nadu) under Railway Receipts Nos. 725059 and 725058 dated 3rd February, 1964 at railway risk, in pursuance of the order placed by the second plaintiff with the first plaintiff. The third plaintiff viz. the Pioneer Fire and General Insurance Co. had covered the said consignments by issuing a policy in favour of the first plaintiff for Rs. 74,000. The said consignments reached the destination on 16th February, 1964 and the same were unloaded and stored in the open yard outside the railway-shed on the advice and guidance and concurrence of the railway staff, as the railway shed was too small to hold the consignments. Before the expiry of the free time allowed under the railway regulations, the Pulankinar station authorities informed the second plaintiff, the consignee, on 17th February, 1964 at 12-40 P.M. that the consignments were damaged by fire. Immediately, a representative of the second plaintiff went to the spot and found that all the bales were damaged by fire and rendered unfit for use. On 26th February, 1964, a claim for compensation for damages of the goods was preferred before the Chief Commercial Superintendent of the Southern Railway for Rs. 74,000 as per the insured value of consignments, which was not replied. On 8th May, 1964, the railway authorities issued a certificate assessing the damages at Rs. 44,387.15 being the cost of 31.780 lbs. or 14,415.16 kgs. of cotton. The second plaintiff thereafter took delivery of the damaged goods under protest and subject to the right to claim compensation against the said damage by fire. However to avoid litigation, the second plaintiff wrote to the Chief Commercial Superintendent, requesting him to pay compensation on the basis of the railway official's assessment, but this was rejected on untenable grounds. The plaintiff's allege that the said damage by fire would not have occurred if the railway authorities had taken all reasonable care and precaution for the safety of the goods unloaded and that the accident was entirely due to want of due care and caution and neglect of duty on the part of the local railway officials. It is further alleged that the goods-shed is a very small one near the goods-shed line and the two consignments of 135 bales could not be stocked in the goods-shed. In spite of heavy volume of business and arrival of goods at the station, no adequate provision is available for stocking the goods and that itself shows the negligence of the railway authorities. The goods were unloaded and stored under instructions from the railway staff and with their concurrence, in the open yard adjacent to the goods-shed and the railway cannot take shelter under the loading and unloading conditions inserted in the railway receipt, as there was no negligence in unloading, which was done under the supervision of the railway staff. Thus, the plaintiff allege that the goods being in the custody of the railways, it was their bounden duty to take every precaution for the safety of the goods till delivery to the consignee which they failed to do. The third plaintiff, the Insurance Co. has settled the claim with the first plaintiff by paying Rs. 73,022.28 as per their invoice value, and got themselves subrogated to their rights. Under these circumstances, the first plaintiff (the consignor), the Second plaintiff (consignee) and the third plaintiff (the Insurance Co.), have all joined in filing this suit in order to avoid technical objections, though the damage claimed is payable to the third plaintiff. Notice under Section 80,Civil Procedure Code, has been given by all the plaintiffs. Similarly the requirements of Section 77 of the Railway Act (before amendment) have been fulfilled by preferring the necessary claim. Hence the suit was filed, for recovery of Rs. 44,387-15 with future interest and costs.
2. The defendant railway filed a written statement raising the following contentions and in other respects putting the plaintiffs to strict proof of the plaint allegations. According to the defendant, the suit consignments were booked under 'L and U' conditions and therefore, the sender or his representative was bound to load the same at the forwarding station and unload them at the destination, the said operations to be carried out entirely, by the consignor and consignee under their supervision, direction and control, and the defendant had no let or part to play in such operations. So, the defendant denies the plaint allegation that the unloading and storing of the goods in the open yard were made on the advice and guidance or concurrence of the railway staff. Under the conditions of booking, the railway had no duty to take any part in the unloading of the consignments, and they have not taken any part in the said operations. The unloading was effected only under the direct supervision and guidance of one Sri P. Veluswami, an employee of the Premier Mills Ltd., the second plaintiff. Nobody prevented the second plaintiff in stacking the goods inside the goods-shed. The second plaintiff ought to have taken sufficient and adequate precautions to protect the goods stacked in the open platform. In fact it was usual for the second plaintiff under such circumstances to send a coolly to keep watch over the consignment and also to cover it in full with good tarpaulins. In this case, the said precautions were not taken by the second plaintiff; but it covered the suit consignments with two old and torn tarpaulins. Under the L and U conditions, the responsibility of the defendant railway as carriers ceases the moment the consignee takes charge of the consignments and unloads the same and thereafter, it is the sole responsibility of the consignee to take care of the goods and protect them from all possible dangers. Having failed to do so, it cannot blame the defendant and seek to saddle them with the alleged loss sustained on account of the fire accident. Thus, it is stated by the defendant that the loss of the consignment was mainly due to the negligence of the second plaintiff. The second plaintiff had taken delivery of the goods by unloading the same through their own men and thus assumed full and effective control over the goods and thereafter the responsibility with regard to the goods lay with them and not with the defendant. The damage certificate was given only to enable the second plaintiff to remove the goods from the station premises and there is no admission of any liability by the defendant by grant of such certificate and it was given with out prejudice to the legal rights of both the parties. The defendant does not admit the quantum of damages claimed by the plaintiffs. In any event, it is submitted that there was no negligence or misconduct on the part of the defendant. The fire that broke out was purely accidental and beyond the control of the defendant. The allegations in para. 10 of the plaint are denied. According to the defendant, the second plaintiff's men never attempted to slack the bales inside the goods-shed, but straight away unloaded them on the platform in the hope of removing them to the second plaintiff's premises soon, on production of the railway receipts. The allegation that the stacking was made under the instructions of the defendant railway, is denied. It is also stated that the railway authorities had, taken all prompt measures to quell the fire the moment it was discovered by one of its staff. The suit is bad for non-joinder of the Central Railway on whose lines the forwarding station is situate, and the suit is liable to be dismissed in limine on this ground alone. For the above reasons, the defendant prays that the suit should be dismissed.
3. On the above pleadings, the following issues were framed for trial:
(1) Whether the alleged loss to the suit consignment is due to the negligence of the second plaintiff in omitting to take the usual precautions? If so, is the defendant not liable?
(2) Whether the alleged loss is due to the negligence or misconduct of the defendant or its servants?
(3) Whether, the plaintiffs are entitled to any and what damages?
(4) Whether the suit is bad for non-joinder of the Central Railway?
(5) To what reliefs are the plaintiffs entitled?
4. Issue No. 4 was taken up as a preliminary issue and it was found in favour of the plaintiff by the trial Court, holding that the suit is not bad for non-joinder of the Central Railway as a party. Then, the trial proceeded on the other issues, and the lower Court found on issues 1 and 2 that the second plaintiff was responsible for the improper unloading, that the fire arose and the cotton bales were damaged as a direct consequence of the improper unloading done by P.W. 2, the agent of the consignee,' the second plaintiff, and that under Section 78 (c) of the Indian Railways Act, the defendant is not liable for the suit action. On issue 3, it found that the plaintiffs are not entitled to any damages. Consequently the suit was dismissed with costs. It is as against this, the present appeal has been filed.
5. Before going into the merits of this case, now we shall advert to some salient features thereof. The first plaintiff is a firm of cotton traders, who consigned 135 bales of full pressed cotton to the second plaintiff mill which is situated at Poolankinar at a distance of four miles from Udumalpet. It transpires from the evidence that the distance from the mill to Poolankinar Railway Station is about two miles. Exhibit A-15 is the of voice for the consignment which was insured with the third plaintiff Insurance Co. Exhibit A-1 is the open policy issued in favour of the first plaintiff by the third plaintiff for rupees ten lakhs. The suit consignment was covered by this insurance policy. Exhibit A-2 is the certificate of declaration issued by the Insurance Co., that the Bank of India had declared the value of the consignment at Rs. 74,000. Exhibit A-16, which is a slip attached to Exhibit A-1, shows that the open policy was in force for a period of one year from the date of issue, viz., 9th February, 1963. The suit consignments were despatched by the railway from Washim Railway Station in Madhya Pradesh State on 3rd February, 1964. Exhibits B-1 and B-2 are the railway receipts for the consignments and on the left hand top of both those receipts, there is the endorsement 'L and U' by the owner. The endorsement 'L and U' indicates that the loading and unloading were to be done by the owner of the consignments, viz., by the consignor at the forwarding station and the consignee at the receiving station. The suit consignment of 135 bales of F.P. cotton arrived at Poolankinar Railway Station at 6.15 hours by the Goods Train No. 4081 on 16th February, 1964. Exhibit B-5 is the book containing the relevant entries maintained by the Railway Station at Poolankinar in respect of the consignment 100 bales of cotton other than the suit consignment, consigned to the second plaintiff were received at the Poolankinar Station on the same day by the same train in three units wagons and taken delivery of by the second plaintiff on the same day. P.W. 2, the Railway Clerk of the second plaintiff mills, would say that the unloading of the 100 bales was completed at about 10.30 A.M. and they were removed to the mills at about 3.00 or 3.30 P.M., and that the remaining 135 bales (suit consignment) were unloaded by 12.00 or 12.30 P.M. Exhibits B-4 and B-5 are entries in the railway register relating to the 100 bales and 135 bales respectively. D.W.1, the Station Master in charge of the Poolankinar Railway Station, and who was on duty on that day, would say that P.W. 2 took delivery of the 100 bales after signing in Exhibit B-4 and surrendering the concerned railway receipts at 13-00 hours. Further, it is the evidence of P.W. 2 that he unloaded 100 bales first with the help of the mill coolies and put them in the goods-shed and then unloaded the suit consignment of 135 bales in the presence of the Station Master and placed the same outside the goods-shed on the goods-shed open platform and that the said unloading was completed by 12 noon. Admittedly, the consignments were consigned at the railway risk note and the free time for delivery had to expire at 17 hours(5 P.M.) on 17th February, 1964. The bales were not piled one over the other, but kept side by side on the platform. Further, the evidence of D.W.1 is to the effect that in between the time of loading en the 16th and the time of the notice of fire on the bales on at 12-30 or 12-4 P.M. on 17th February, 1964, twelve up-trains towards Coimbatore and nine down-trains towards Dindigul had passed on the first line and there were two unions of trains during that interval. Therefore, the fire accident took place within the free time allowed for delivery for unloading. The fire was extinguished completely by about 6-15 P.M. on 17th February 1964. It is the evidence of D.W.1 that he went to the spot after he was informed about the fire accident by the porter (who has not been examined in the case) and be saw almost all the bales burning. Though P.W. 2 would say that there was no fire extinguisher or sand kept near the goods shed, D.W.1 swears that there was one fire extinguisher which was properly functioning besides four buckets. However, D.W.1 would admit that there was no watch and ward in his station and in fact no watchman was appointed by the railway to keep watch over the loaded and unloaded goods and there was only one porter in the station and there were no tarpaulins available in the station for protecting the unloaded goods. D.W.5, the Relieving Assistant Station Master working at the time of the trial of the case has testified, with reference to Exhibit B-11, the stock register of Poolankinar station, to the fact that there was no stock of tarpaulins in the station. The torn tarpaulins marked in this case as M.Os. 1 and 2 belonged to the second plaintiff. D.W. 1 admits that the bales were kept on the platform side by side and were easily separable if there was no fire. But, he would say that even when be went to the spot on getting information nobody could go nearby as the fire was ablaze on almost all the bales. He admits that he is not able to account as to how the bales caught fire. Before arrival of the fire engine, according to this witness, he took the fire extinguisher and applied it, but the fire could not be extinguished and their he phoned up to Udumalpet station and requested the fire engines to be sent for, and he also requested the Udulmalpet station authorities to inform the second plaintiff about the fore accident. 17th February, 1964 was a holiday to the Mills. Therefore, P.W. 2, on getting the information from the Mills, rushed to the station along with P.W. 3. P.W. 1, the Superintendent in the fire section of the third plaintiff Insurance Co., at Coimbatore, on receipt of the information of the fire accident, reached Poolankinar station at about 3 P.M. The evidence of P.Ws. 1 to 3 is to the effect that the fire engine came only at 3 P.M., and as there was no water nearby the fire engine went to a garden at some distance and brought water once or twice. Subsequently, water could not be brought even from that garden as the road was in a very bad condition and the owner of the garden objected to that. So, on P.W. 2's suggestion, the fire engine went to the Mills (2nd plaintiff) and brought water and extinguished the fire and finally put out the same at 6-15 P.M. The Station Master, D.W. 1, has deposed that he took efforts to extinguish the fire by pouring the water brought by some female collies in their pots and nearly about 1000 gallons of water stored for watering the engines were also used through hose pipes to extinguish the fire besides the water supplied by the Mill and brought from the garden.
6. P.W. 2 would say that the railway was responsible for the safe custody of the goods and it is their duty to watch the same and that the 2nd plaintiff would not post any one to watch the goods after unloading till they took delivery of the goods. Further, it was not their duty to cover the unloaded bales with tarpaulins. Similarly, P.W. 3 would say that they would not send their watchmen from the mills to keep watch over the unloaded consignments and in fact there was no practice of deputing watchmen from the mills to watch the unloaded bales at night or to cover them with tarpaulins of the Mills. P.Ws. 2 and 3 have further stated that M.Os. 1 and 2 are not their mill's, tarpaulins, despite the fact that P.W. 2 has admitted in Exhibit B-6, the statements giver by him before the enquiry officer that M.Os. 1 and 2 are the two tarpaulins used to protect the goods and that it was customary practice for the 2nd plaintiff to post a cooly to watch over their consignments during night pending delivery and removal. According to P.W. 2, the station master, D.W. 1, never asked him to stack all the 135 bales inside the goods-shed which was empty after the removal of 100 bales. But, his explanation is that as it was late, they did not place the 135 bales inside the goods shed. But, contrary to this evidence, D.W. 1 would state that the 2nd plaintiff would, cover the consignments with the tarpaulins and post watchman and that the tarpaulins (M.Os. 1 and. 2) belonged to the 2nd plaintiff. He would say that _it appeared to him that the 2nd plaintiff did not send any watchmen to guard the suit consignment. He is emphatic that he told P.W. 2 to put all the 135 bales inside the goods-shed, but P.W. 2 replied saying that the coolies had been working continuously without rest and when the unloading was completed, their time of work was over. Further, it is his evidence that when the goods were unloaded, the railway did not immediately take charge of the goods and the responsibility of the owner did not end with the unloading of the goods. Thus, it is seen that each party is making charge and counter charges, imputing the responsibility for protecting the consignments on the other. Subsequent to the fire, the Insurance, Co. (3rd plaintiff) paid over to the first plaintiff for the loss under three receipts. Exhibits A-5, A-6 and A-7, for 3 total sum of Rs. 73,651-78 and got itself subrogated with the rights of the first plaintiff under Exhibit A-8. On 29th February, 1964, the second plaintiff made a claim on the Southern Railway under Exhibit A-10, for the value of the consignments of Rs. 74,000 as the bales were damaged whilst they were in the custody of the railways. The 2nd plaintiff, after obtaining the assessment certificates under Exhibit A-9 laid a claim on the railway for a sum of Rs. 44,387-15. Exhibit A-12 is the acknowledgement of the first claim under Exhibit A-10. Exhibit A-13 is the reply dated 6th July, 1964 sent on behalf of the Southern Railway, stating that as the consignment was covered by the L and U conditions, the coolies of the mill, who had unloaded them, ought to have secured them properly, which they have failed to do, that only two old and torn tarpaulins were used to protect the bales from possible damages, that they were not sufficient as only a portion of the bales were covered by them that the bales unloaded were left on the open platform without being taken delivery of or without being properly protected after unloading, that the fire was purely accidental and beyond the control of the railway administration and that there was neither negligence nor misconduct on the Part of the Railway Administration or its servants. Thus, the defendant railway would charge the plaintiffs that they were negligent in not putting the bales inside the goods-shed and in not using proper tarpaulins to cover the suit bales.
7. Mr. V. Ratnam, learned Counsel for the appellants, would contend that there was not adequate space in the goods shed for storing all the consignments, that the responsibility of a Railway Administration is that of a carrier, that the liability is absolute unless it comes within the exceptions contained under the present Section 73 of the Act, that the trial judge has failed to understand the true scope and effect of the loading and unloading conditions in the railway receipts, that the Railway Administration is not at all absolved from their liability immediately after the goods were unloaded and that the consignment was booked under the railway risk note which enjoins on the railway to disprove negligence or their part, and that it is the duty of the railway to provide sufficient safeguards in regard to the goods unloaded and kept on the railway premises. Further, he would contend that the trial Court should have held that the accident of fire was prima facie proof of negligence on the part of the Railway Administration and the learned trial Judge has erroneously held that Section 73(f) of the Indian Railways Act applies to this case. According to the learned Counsel only Section 77 of the Railways Act would be applicable to the facts of the present case and as per Sub-section (5) of Section 77, unless otherwise previously determined, transit terminates on the expiry of the free time allowed after the arrival of the goods at the destination for their unloading from the railway wagons without payment of demurrage and where such unloading had beer completed within the free time, transit terminates only on the expiry of the free-time allowed for removal of the goods from the railway premises without payment of wharfage. Therefore, the learned Counsel would contend that in this case, as the free time had not expired when the fire took place, the respondent administration should be held responsible as a carrier for loss, destruction or damage of goods and that the lower Court has failed to take into consideration the proviso to Section 73 of the Act which saddles the Railway administration with the onus of proving that it had used reasonable foresight and care in the carriage of goods during the period of transit and the application of Section 78(c) (i) of the Act to the facts of this case is erroneous and that the trial Court should have held that the storing of the large quantity of goods easily susceptible to fire in the open platform without sufficient protection and adequate facilities for putting out the fare are themselves prima facie evidence of negligence on, the part of the respondents, and it is for the respondent railway to prove that the fire had occurred, without any negligence on their part and that they bad taken due care and caution to protect the properties. According to the appellants there was ho such practice of Undertaking by the appellants that they should sufficiently protect the goods by using tarpaulins and also keep special vigil over the goods through their own watchmen.
8. Mr. Srisailam, appearing for the respondent Railway, would resist the above contentions by urging that there was no negligence or misconduct on the part of the Railway Administration and there was no lack of foresight or care and as such the respondents cannot be made liable for the accident by fire, which was quite unforeseer. According to b him, the 2nd plaintiff had assumed full responsibility for the safety of the goods by unloading the same through their own men as the suit consignments were booked under the Land U conditions, that the responsibility of the Railway as carriers ceased the moment the consignee had unloaded the same from the railway wagons, and thereafter the responsibility lay only on the consignees to take care of the goods and protect them from all possible damages, that in this case, the appellants having failed to take such care and precaution, they cannot now shift the responsibility on the respondent and sue them for the damages, that the goods shed was empty and there was no sufficient space in it for stacking the 15 bales in question, that the unloading would continue till the pro-parties were removed from the railway premises and that the failure of the appellants to protect their own goods was in contravention of the obligation undertaken by them as per the usual practice and therefore the damage to the goods was caused solely due to the appellants' carelessness and negligence.
9. As we have adverted to already, the fact that the fire took, place after the unloading but before the expiry of the free time allowed for the removal of the goods and that the goods had been booked at the railway risk rate, stands unchallenged. Under these circumstances, we have to see whether the loss to the suit consignment is due to the negligence of the second plaintiff or due to the negligence or failure or the Railway Administration to take sufficient care of the goods, which they were bound to take under the statute, and whether the respondent Railway, had discharged their duty as contemplated under Sections 73, 77 and 78 of the Indian Railways Act.
10. Chapter VII of the Indian Railways Act deals with the responsibility of the Railway Administration as carriers. Sections 72 to 82-J come within this chapter. Section 73 makes the Railway Administration liable for loss, destruction, damage or deterioration, or non-delivery of goods or animals, while in transit, except for the goods mentioned in Clauses (a) to (i) of the said section. But, the proviso to the said section says that when the Railway Administration can claim exemption from liability for any of the expenses, the burden is cast upon the administration to prove that they have exercised reasonable foresight and care in the carriage of the animals or goods entrusted to them for carriage by railway. Section 77 of the Act, as it stood before the amendment as per Act LXXI of 1972, lays down that the responsibility of the Railway Administration for loss, destruction, damage, etc., caused within a period of 30 days after the termination of transit is that of a bailee, provided that the goods are not carried at owner's risk. Now, the question in this case is whether the respondent railway is liable under Section 73 or under Section 77. Sub-section (5) of Section 77 reads as follows:
For the purposes of this Chapter-
(a) unless otherwise previously determined, transit terminates on the expiry of the free time allowed (after the arrival of animals or goods at destination) for their unloading from railway wagons without payment of demurrage, and where such unloading bas been completed within the free time so allowed, transit terminates on the expiry of the free time allowed for the removal of the animals or goods from railway premises without payment of wharfage; (b) demurrage and 'wharfage' have the meaning respectively assigned to them in Clause (d) and Clause (h) of Section 46-C.
On a careful reading of this sub-section, it is clear that the word, 'transit' would include the free time allowed for removal of the goods from the railway premises without payment of wharfage. Admittedly, the fire took place in this case during the free time allowed. Section 77 would apply only if the goods are lost damaged, deteriorated, etc., after the termination of the period of transit, viz., after the expiry of the free time allowed. In other words, if the loss occurs within 30 days (or within 7 days after the 1952-amendment) from the expiry of the free time, the Railways would be liable as a bailee under Section 77. But in this case, only Section 73 would be applicable since the loss bas occurred during the transit within the meaning given to it under Section 77 (5).
11. Now, we have to see whether the Railways took the necessary steps to obviate the risk of loss, by using reasonable foresight and care and whether they took adequate measures for protecting the goods from such loss. Under Section 73, the Railway Administration is liable as a carrier of goods for loss, destruction, damage, deterioration or non-delivery of animals or goods carried. The exceptions to this liability are similar to those in the case of a common carrier and will apply only if the administration proves that it has used reasonable foresight and care. The liability may be modified by a contract as it is usually done by means of the risk notes. Where the standard of care is objective and impersonal, it is for the Court to say what in each case the parties concerned, as reasonable men have contemplated or foreseen. The law imposes on all persons the duty to exercise the care and skill and foresight of a reasonable man or an average man of prudence |and competence. Therefore, on the one hand, a person cannot be made liable on the ground that he failed to take extraordinary care, and on the other it is no defence for a person, whose conduct falls short of that standard, that he acted to the best of his judgment and ability. In the light of the above principles, we have to examine whether the respondent Railway Administration has discharged its responsibility by exercising reasonable foresight and care in respect of the custody of the goods as a carrier till the free time expires.
12. The Indian Railways Act reduces the responsibility of carriers by Railway as that of bailee under the Contract Act. Therefore, the liability of a Railway must be measured solely by the test formulated under Sections 151, 152 and 161 of the Indian Contract Act. When goods have not been delivered to the consignee at the place of destination, the burden lies upon the bailee to prove the existence of circumstances which would exonerate him from such liability or loss. It is true that a Railway Administration as bailee cannot inevitably be held liable for each and every accident of which it is unable to assign the precise cause. But, at the same time, it may be noted that the obligation of the Railway includes not only the duty of taking all reasonable precautions to obviate these risks, but the duty of taking all proper measures for the protection of the good when such risks have actually occurred, for example, by making reasonable provision for the protection of the goods by extinguishing any fire that might break out. When the loss of goods entrusted to a bailee is once established, then the burden of proof shifts over to the bailee to show that he took as much care of the goods as a man of ordinary prudence would, under similar circumstances have taken of his own goods of a similar kind and that the loss occurred notwithstanding such care, viz., that there was no evidence of negligence on the part of the bailee. If he fails to satisfy the Court on that point, he is liable for the loss.
13. In Moolji Sicka and Co. v. B.N. Railway Co. Ltd. : AIR1932Cal257 , while dealing with Section 151 of the Contract Act, his lordship Jack J., has held that where goods are consigned to a Railway company for despatch the onus is on the company to show that they took as much 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. In Union of India v. Raigarh Jute Mills Ltd. : AIR1961MP251 it has been held that in its position as a bailee the Railway is bound to take as much care of the goods as a man of ordinary prudence would take of his own goods. Though as a general rule, the burden of proof in an action for damages or compensation for negligence rests primarily upon the plaintiff, there are exceptions to this rule, such as cases to which the maxim res ipsa loquitur applies, viz., the cases in which the fact of an accident is itself prima facie evidence of negligence and in which there is a special duty cast on the defendant to take special care. In this case, the defendant has chosen to keep the full-pressed cotton bales which are combustible, in the open platform. So, the question is whether the Railway Administration has taken such care of the goods.
14. Section 106 of the Indian Evidence Act says that when, any fact is especially within the knowledge of any person, the burden of proving the fact is upon him. So, it is for the bailee, the defendant, to whom the goods have been entrusted for delivery, to prove that the loss caused was not through its negligence or the failure to take as much care as that of a prudent man, since the matter lies especially within its knowledge. It is not possible for the plaintiffs to prove what occurred or could have occurred during the period |of the custody of the goods with the defendant. In the present case, it is admitted that the defendant had stacked the goods on the open platform and that they were destroyed due to some fire accident while they were in the custody of the defendant as a bailee.
15. In Blyth v. Birmingham Water Works Co. (1856) 11 Ex. 781, Alderson, J., has defined negligence as omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which he would not do. The standard of negligence is given in Sections 151 and 152 of the Contract Act but no general rule universally applicable can be laid down as defining the amount and quality of proof in every case which will discharge the Railways' onus.
16. Bearing the above principles in mind, we shall now find out from the evidence and the attendant circumstances in this case, whether there is negligence on the part of the Railway Administration in this case. At this juncture learned, counsel for the respondent railway would very strenuously contend that the responsibility of the Railway Administration has ceased as. soon as the goods were unloaded by the second plaintiff-second appellant under L and U conditions and therefore, the storing of the goods in the open platform, was only at the risk and responsibility of the consignee and under these circumstances, the Railway Administration cannot be mulcted with any liability for any loss or destruction of the goods on the ground of negligence. We are not able to lay our hands on any judicial pronouncement made by any Courts of our country for the meaning of the word 'unloading' and we have, therefore to go to the ordinary meaning given in the Oxford dictionary. In the Shorter Oxford English dictionary III. Edition Volume II, the meaning of the word 'unload' is given as-
To take off (something carried or conveyed); to discharge a (cargo): to free, relieve or divest of a load, burden or weight, etc.
Similarly, in Funk and Wagnalls Standard Dictionary, International Edition, the meaning of the word 'unload' is given as-
To remove the load or cargo from; to take off or to discharge (cargo etc.)' In Berry v. L.G. and D. Rly. Co. 4 Ry. And Com. Tr. Cases 310 and in Kenson v. G.W. Railway Co. 4 Ry. And Com. Tr. Cases 426, vide Sanjeeva Rao's the Indian Railways Act, 5th Edition (1972) page 304, it has been held that the term 'loading and unloading' means the labour of packing or unpacking a goods train r goods truck, whether by hand or machinery and. that the term 'load and. unload' can be used in no other sense than that in which they are used in ordinary English. Rule 128 of the General Rules under Chapter 1 (vide Goods Tariff No. 32 Part I) in force from 15th December, 1965, says that all goods other than those provided for in the exceptions viz., in Clause 2 of the said Rule and such other goods, as may from time to time be notified, are loaded and unloaded by the Railway. Clause 2 of the Rule deals with exceptions where the loading and unloading of goods mentioned therein are done by the consignor and consignee respectively. Rule 132 of the said Rule says that in all cases where the owners of goods are required to do the loading and unloading, as the case may be, risks attendant to those operations shall be borne by the owners. But Rule 134, dealing with the terminator of transit clearly and unambiguously demarcates the period of transit stating that unless otherwise previously determined, transit, for purposes of railway liability terminates if the wagon is unloaded within the free time allowed, as in the instant case, on the expiry of the free time allowed for removal of such goods or animals from the railway premises. Though these Rules are effective only from 15th December, 1965, both sides have not shown to us any previous Rule in consistent with the above position, viz., to show that the transit of the goods expires as soon as the goods were unloaded. On the other hand, Section 77(5) of the Indian Railways Act shows that the transit terminates on the expiry of the free time allowed for the removal of the animals or goods from the railway premises without payment of wharfage. Therefore there could not have been any rule contrary to the above Rule 134. Admittedly, the cause of action arose in the month of February, 1964, much before the above Rules were framed. However, since Section 77(5) of the Railways Act clearly defines the period of transit as stated above, even if there was no rule in existence in 1964, in this respect, we can safely conclude that the position on the date of the accident in this case was that the period of transit terminated only on the expiry of the free time allowed for the removal of the good? from the Railway premises.
17. The act of unloading in its ordinary meaning is nothing but an act of taking off or discharging the cargo or removing the load. In this case, the unloading of the goods is the discharge of the goods from the wagon under L and U conditions, and the risk attending these operations shall be borne by the consignee. Admittedly, in this case, no damage was caused to the suit consignment by any negligent act on the past of the consignee or its agents or servants during the course of unloading the same. From the above discussions, we hold that by no stretch of imagination, can it be said that the responsibility of the respondent Railway Administration as carriers of the goods had ceased the very moment the goods were unloaded from the wagons. By the L and U conditions, the parties had intended that immediately after the unloading of the suit consignment, the Railway should take safe custody of the goods till they are relieved of their statutory obligations. In this case, admittedly the free time was not over. The consignees in this case were entitled, as per the law as it stood on the date c f accident to have 30 days time to remove the goods from the custody of the Railway and therefore, in the normal course, the respondent Railway would have been responsible for the safe custody of the goods during such period of 30 days, in the capacity of a bailee under Section 77 of the Act. A fortiori, therefore, the liability of the respondent for any loss to the goods arising during the period of free time is still heavier.
18. The contention of the respondent that the responsibility of the Railway ceased the moment the consignee (second appellant) took charge of the suit consignment and unloaded the same, does not hold good. We are unable to understand the case of the respondent that the consignee took charge of the suit consignment and unloaded the same. Taking charge of the consignment would come into operation only on production of the Railway Receipt by the consignee and after the goods were released by the respondent. Otherwise it cannot be said in law that the consignee took charge of the suit consignment. D.W.1 has deposed that he told P.W. 2 (the Railway clerk of the second plaintiff) to get the Railway Receipts and then take delivery of the 135 bales, thereby implying that the goods would be in the custody of the Railway Administration till the production of the Railway Receipt. Therefore, this contention also fails.
19. The respondent contends in para. 5 of its written statement as follows-
The 2nd plaintiff ought to have taken sufficient and adequate precautions to protect the goods stacked in open platform. In fact, it was usual for the second plaintiff under such circumstances to send a cooly to keep watch over the consignment and also to cover it in full with good tarpaulins. In the instant case, the said precautions were not taken by the second plaintiff. It covered the suit consignments with two old and torn tarpaulins.
In para. 12, it is averred-
This defendant, for the reasons set forth above, does not owe any duty, nor it is bound under law, to take any reasonable care and precaution to protect the goods.
Thus, the respondent pleads some customary practice followed by the second plaintiff to post a cooly to watch over the consignment and to protect the same with tarpaulins. D.W. 1, speaking on this aspect, would say that he told P.W. 2 to put the 135 bales into the goods shed, to which P.W. 2 replied that the coolies had been working continuously without rest and that the time of work would be over on the completion of the unloading of goods. By this evidence, D.W. 1 probably wants the Court to believe that it was P.W. 2 who refused to take the goods to the goods shed in spite of his request and that therefore the railway is not liable. In the first place, we are of the view that the consignee was responsible only to unload the goods and they were not bound to put the goods in the goods-shed in the absence of any contract to that effect. IP the second place, from this evidence of D.W. 1 it can be inferred that the respondent Railway was conscious of their responsibility to have custody of the goods in the goods shed till they were relieved of their statutory obligations. If it was a customary practice or usage on the part of the plaintiffs to take charge of the goods immediately after the unloading was over, there was no necessity for D.W. 1 on behalf of the respondent to ask the second plaintiff to carry goods to the goods shed. Thus D.W. 1's evidence itself directly gees against the usage pleaded by the respondents in their written statement. Further, if the second plaintiff had taken charge of the goods as alleged in the normal course, only the second, plaintiff would have requested the Railway Administration to permit it to stack the goods in the railway goods shed and D.W. 1 would not have taken any interest in asking P.W. 2 to keep the goods in the goods shed. Therefore, in these circumstances, the only inference that can be drawn from the evidence of D.W. 1 is that he just asked P.W. 2 to direct the coolies to stack the goods in the goods shed on behalf of the Railway Administration. D.W. 1 has further deposed that he had allowed the party (second plaintiff) to unload the goods in his absence on two or three earlier occasions, on which occasions also the second plaintiff had unloaded the goods and kept them in the open platform and that they would cover the goods with the tarpaulins and post watchmen. The second plaintiff has completely denied their responsibility and also the customary practice pleaded by D.W. 1. The above evidence of D.W. 1 is not so emphatic about any particular usage. The evidence adduced on the side of the respondent on this score is Very slender and meager. When a specific statutory obligation is cast on the respondent Railway Administration to have safe custody of the goods till their responsibility under Sections 73 and 77 is over, any contract to the contrary by way of a specific contract or usage or customary contract should be proved by very clear and formidable evidence. Even assuming that second plaintiff used to post a watchman and cover the goods with tarpaulins, the responsibility of the respondent Railway would not be absolved.
20. From the above discussions, we hold that the goods were in the juridical and physical custody and possession of the Railway Administration at the time when the accident took place.
21. Mr. Srisailam would urge that the placing of the goods on the platform is an improper unloading of the goods and therefore, the Railway Administration shall not be held responsible for the less as contemplated under Section 78 (c) (i) of the Act and that the view taken by the trial Court is correct. According to him, the second plaintiff ought to have stacked the unloaded goods in the goods-shed intended for the purpose and the act of the consignee in stacking the goods in the open platform amounts to improper 'unloading'. Section 78 (c) (i) says that notwithstanding anything contained in the foregoing provisions of Chapter VII, the Railway Administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of the animals or goods proved by the Railway Administration to have been caused by or to have arisen from improper loading or unloading of the consignor or the consignee or by an agent of the consignor or of the consignee. In the instant case, admittedly, the goods were unloaded and kept in the goods shed platform. As per the definition of 'Railway' under Section 3, Sub-section (4) the Act, all lands within the fences are also included as Railway. Therefore, the term 'Railway premises' in Section 77(5) would include the platform, the goods shed etc. Section 77(5) says that where the unloading has been completed within the free time so allowed, the period of transit terminates only on the expiry of the free time allowed for the removal of the goods from the Railway premises. So the unloading of the goods and keeping them on the platform cannot be said to be an improper unloading. There is no statutory obligation on the part of the consignee to keep the goods in the goods shed. Supposing that there is no goods shed in a particular station, what is it that is expected from a consignee in order to unload the goods? In those circumstances, can it be reasonably said that unloading and keeping the goods op the platform is an improper unloading? The construction of the goods, shed by the Railway Administration in only to safeguard the goods entrusted to them. That precaution is taken by the Railway Administration to fulfil their statutory obligations. In the light of the above observations, we are of the view that the second plaintiff was only expected to unload the goods and keep them in the railway premises, viz., in the. goods shed platform. Therefore, the above contention raised by the respondent cannot be countenanced.
22. Admittedly, the suit consignment was consigned at the railway risk rate and the fire accident took place within the expiry of the period of transit, viz., within the free time allowed for the removal of the goods from the railway premises, which, according to D.W. 1, expired by 17 hours on 17th February, 1964. The fire was noticed by D.W. 1 on 17th February, 1964 at above 12-40 hours though the goods were unloaded even on the previous day at noon. As per the evidence of D.W. 1, when he went to the spot immediately almost all the bales were burning and there were flames and smoke and nobody could go near the burning bales even at that time. This piece of evidence would indicate that the fire should have originated much earlier to D.W. 1 noting the fire and the bales should have been burning for quite sometime without being noticed by any of the railway servants. As per the admission of D.W. 1 there was no watch and ward in that station and no watchman had been appointed by the railway to watch the unloaded goods. He admits that they did not use any tarpaulins. M.Os. 1 and 2, the burred tarpaulins, as per the evidence of D.W. 1, belonged to the second plaintiff, though the second plaintiff would deny it. According to him there was one fire extinguisher and four buckets and record therefore, and he used the fire extinguisher but could not extinguish the fire. P.W. 2 would say that there was no fire extinguisher in the railway station. The respondent ought to have produced the record before the Court to substantiate their defence that there was a fire extinguisher, especially when the plaintiffs have come forward with the case that there was no fire extinguisher at all in the railway station. Even if there was one fire extinguisher with them, is it not the duty of the Railway Administration to post some watch and ward at the place where the goods were stacked so that any incident could be immediately detected and preventive steps could have been taken immediately? Is it not the duty of the Railway Administration to safeguard the goods, especially when they would be collecting the wharfage and demurrage charges? The evidence of D.W. 1, as we have already indicated, would clearly show that the fire was detected after it had spread to almost all the bales which had been kept separately and not piled one over the other. If this omission on the part of the railway to note the fire for such a long time is not negligence, it is un-understandable what else would be negligence on the part of the railway as carriers, especially when the fire should have originated in broad day light. Can the Railway Administration say that their legal responsibility is completely absolved by merely saying that the second plaintiff had not posted any watchman which they allegedly used to do?
23. Mr. V. Ratnam, giving a graphic and vivid picture of the entire circumstances of the case, would strenuously contend that the Railway Administration in this case has utterly failed in discharging their responsibility and that the conduct of the respondent in not taking the ordinary diligence that a prudent man would take at least by posting a watchman at the goods shed yard where the goods of this nature, which are easily combustible were kept for delivery, would be tantamount to prima facie negligence on their part and that the principle of res ipsa loquitur could be involved to the facts of this case.
24. In Union of India v. Rajendra Mills : AIR1971Mad53 , a Division Bench of this Court had to deal with the responsibility of the railway under Section 72 of the Act before the 1961 amendment (corresponding to Section 73 of the Act as amended.) in a case where the goods were carried by the railway under railway risk and were damaged by fire on the way. The defendant Railway did not discharge the onus which was on them by showing that all possible care and caution had been taken. The goods were placed in a wagon on the transit, which was not actually tested to be water tight and they were transshipped by a contractor and it was not known how the goods were handled by his servants and there was doubt whether there was any negligence on the part of the contractor's servants. Under these circumstances, it was held that the principle of res ipsa loquitur and the presumption under Section 114(g) of the Evidence Act might be applied though the case of the Railway was that the fire was purely accidental and not due to any negligence or misconduct and that they had token all care and caution and the cause of the fire was not known. In this case also, the alternative case of the respondent Railway is that it took all care and caution in respect of the goods, that the fire was purely accidental and not due to any negligence or misconduct and that the cause of the fire was not known. In our opinion, the principle laid down in the abovesaid decision can be applied for a greater reason to the present case, since the goods in this case were stacked on the open platform. The respondent cannot plead ignorance of the cause of the fire.
25. In Union of India v. Udhoram and Sons : 2SCR702 , some goods were lost in transit of a goods train, though the railway had taken precaution by posting the railway protection police in the same train. Their Lordships of the Supreme Court held that the railway protection force especially deputed for the purpose of seeing that no loss takes place to the goods, should get down from the wagon and keep an eye on the wagon in the train in order to see that no unauthorised person gets at the goods. The Court ultimately found that the loss of the goods was due to the negligence of the railway servants and consequently of the Railway Administration. In the present case, as we have mentioned above, there was no protection force at all to safeguard the cotton bales.
26. In Union of India v. Serajudin : AIR1953Pat206 , the railway company had kept the consignments in the open jetti having tin roof, and because of the winds and rains the consignments were damaged to an extent which made them unfit for human consumption. Their Lordships, rejecting the contention of the Railway Company that there was no other place where the goods could have been kept, held that the Railway Administration failed to take care of the goods as they should have taken of their own goods, and that they should have made provision for the safe custody of the goods which they undertook to carry and the fact that there was no other place where the goods could have been kept was no answer to shift the liability.
27. In Union of India v. Volk and Brothers A.S. No. 937 of 1966 judgment dated 29th August, 1973, decided by Veeraswami, C.J., and Varadarajan, J, a consignment consisting of 100 bales of cotton was consigned from Khandwa to Coimbatore. Owing to fire in the wagon, there was loss of the cotton bales, and a suit was filed, for damages. Of the two witnesses examined the first witness stated that he found no mechanical defect or smoke from the wagon. But, the other witness said that when he examined the train subsequently, he smelt the cloth burning smell. Thereafter, all precautions were taken and the fire was put down. The said wagon was made of iron sheets. But, three holes were found on the door at various places. Though it was made to appear that these holes could not have been formed by stones hit and the wagon was originally made water-tight by sealing compound and. the sealing melted on account of the fire, there was no satisfactory evidence in the case to show that the holes could have been formed by the fire that was noticed. Their Lordships were unable to believe that the holes were formed at the station because of the fire. There was absolutely no evidence directed to show that the railway as bailees took precaution before the cotton bales were loaded in the wagon. There was nothing to show that the railways satisfied themselves that the wagon was fireproof. It was also held that unless there were holes, in the wagon, fire could not have entered and it was the duty of the bailees to show that these holes were properly plugged and sealed so that any accident of fire could be eliminated. With the above observations their Lordships held that the bailees were negligent.
28. In the present case, there is no evidence regarding the actual cause of the fire. The evidence of D.W. 1 is to the effect that between the time of the unloading of the goods and the time when he noted the fire on the next day, twelve up-trains and nine down-trains had passed on the first line. D.W. 3, the boiler chargeman at Madurai, would say that all the engines were fitted with spark arresters and they had been checked before they left the loco shed. D.W. 4 is loco foreman, who also corroborates, the evidence of D.W. 3, and would say bat the spark arresters are intended to prevent sparks coming out of the smoke boxes. Whatever may be the cause for the fire, we are not here to surmise or to speculate as to whether the sparks, would have come from the railway engines passing through the station or by somebody throwing a lighted cigarette or by any other reason. But, the fact remains that the consignment caught fire. It stands to commonsense that the fire could not have self-generated or originated, but should have been caused from some external cause. It is the evidence of D.W. 1, that he was first informed about the fire by a porter of his station. The porter has not beer examined in this case to show when he noticed the fire and what he was doing previously. If he had been examined, his evidence would have thrown some light about the time of his noting the fire, whether he made attempts immediately to report the matter to the station matter, whether he himself took any steps to extinguish the fire even at the earliest point of time, etc. The non-examination of the porter, in our view, under the peculiar circumstances of this case, weakens the respondents' case further.
29. Now, we shall examine the position of law with regard to the applicability of the principle res ipsa loquitur to the facts if this case. Res ipsa loquitur is not a principle of substantive law. It is a rule of evidence, an expression which it is convenient to apply to these circumstances in which a plaintiff in negligence discharges his task of establishing want of care on the part of the defendant without laving to prove any specific negligence or omission by the defendant. The general rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff, because it may be that the true cause of the accident lies only within the knowledge of the defendant. The plaintiff can prove the accident: but he cannot prove bow it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the principle of res ipsa loquitur. There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. Sir William Erie, CJ., delivering the judgment of the Court of Exchequer Chamber, in the leading case of Scott v. London and St. Katherine Docks Co. (1865) 3 H & C 596, said:
There must be reasonable evidence of negligence: but where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
In a recent decision of the Supreme Court in Shyam Sundar v. State of Rajesthan : 3SCR549 , their Lordships, after relying on the above decision in Scott v. London and St. Katherine Docks (1865) 3 H & C. 596, and other cases, have laid down as follows:
The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defend ant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies.... The maxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence. Lord Shaw remarked that if the phrase had not been in Latin, nobody would have called it a principle; the maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having; to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which, would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it even when the facts bearing on these matters are at the outset unknown to him and often within the knowledge of the defendant. But though the parties' relative access: to evidence is an influential factor, it is not controlling.... The plaintiff merely proves a result not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.... Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice there are many cases where res ipsa loquitur, is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular case of the injury was not associated with negligence on his part.
In the above cited Supreme Court case, the driver was in the management of the vehicle and the accident was such that it would not happen in the ordinary course of things and there was no evidence as to how the truck caught fire and there was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant, and therefore, it was not possible for the plaintiff to give any evidence as to the cause of the accident. In these circumstances, it was held that the maxim was attracted.
30. When all the facts are known, there is no room for the application of this maxim; in such a case, the only question for consideration is whether an inference of negligence becomes practically certain or practically impossible. But, when all the facts are not known, the maxim helps the plaintiff to discharge the onus, which lies upon him, of proving negligence. If the accident is proved to have happened in such a way that prima facie it could not have happened without negligence on the part of the defendants, then it is for the defendants to explain how the accident could have happened without negligence. As Street on Torts has pointed out, three separate requirements must be satisfied for the application of this maxim-- (1) The doctrine is dependent on the absence of explanation. In other words, if proof of the relevant facts is put before the Court, then there is no room for inference. (2) The harm must be of such a kind that it does not ordinarily happen if proper care is being taken. (3) The instrumentality causing the accident must be within the exclusive control of the defendant. Admittedly, the first requirement is satisfied in this case, because there is no explanation and no proof of the relevant facts causing the fire accident. As regards the second requirements, there is no doubt that if proper care had been taken with regard to the consignment, by stacking them in the goods shed, the accident would not have occurred. So, this is also satisfied. As regards the third requirement, viz., that the instrumentality causing the accident must be within the exclusive control of the defendant, there is no doubt that whatever may be the cause for the accident, indefinitely within the control of the defendant, because the accident has occurred within the Railway premises. Even if the plaintiff is not able to point to a particular servant of the railway who is in control, even then the rule may be invoked so as to make the Railway vicariously liable.
31. The effect of the invocation of this maxim is that the mere happening of the accident affords reasonable evidence, in the absence of explanation by the defendant, that it was due to the defendant's negligence. Hence, if the defendant gives no evidence, the plaintiff will succeed. Therefore, a prudent defendant will offer an explanation. It is well-settled that the defendant is entitled to succeed even though he cannot explain how the accident happened, if he established that there was no lack of reasonable care on his part. The effect of this maxim depends upon the cogency of the inference to be drawn in the light of the evidence adduced coupled with the attendant circumstances and it will vary from case to case. There are authorities holding that once the defendant has furnished evidence of the cause of the accident consistent with his having exercised due care, it becomes a question whether upon the whole of the evidence, the defendant was negligent or not and the defendant will succeed unless he is held to be negligent. Another view is that the defendant would lose unless he proves that the accident resulted from a specific cause which does not connote negligence on his part, but on the contrary, points to its absence as more probable. In this case, the respondent has not furnished evidence as to the cause of the accident. Nor has it proved that it exercised due care. On the other hand, the respondent railway disowns their statutory liability, stating that as soon as the goods were unloaded from the wagon, their liability has ceased. But, this contention of the railway has been rejected by us. The defendant has simply stated that it took steps to extinguish the fire after it came to know about the fire which by that time had spread to almost all these bales. The evidence adduced in this case clearly shows that there was gross negligence on the part of the respondent-railway by omitting to take even the elementary care in respect of the consignment in question. Under these circumstances, we are of the view that the principle of res ipsa loquitur clearly applies to the facts of this case and that the respondent-railway has totally failed to prove that it has taken any care in respect of the goods in question which it should have taken.
32. The insured value of the consignment, according to Exhibit A-2 is Rs. 74,000. The 3rd plaintiff has settled the claim with the 1st plaintiff, by paying Rs. 73,022-28 as per the invoice value, and got themselves subrogated to their rights. The Railway Assessor had assessed the damage to the goods as per Exhibit A-9 at 29,780 lbs. The plaintiffs have claimed the value of this loss of these 29,780 lbs. and also the value of 2,000 lbs. covered by the five bales of cotton alleged to have been, blown and washed away as agreed to by the railway surveyor but which he has omitted to include in his report. The total amount thus claimed by the plaintiffs for 31,780 lbs. comes to Rs. 44,387.15 at Rs. 307-92 per quintal. P.W. 1, the Superintendent of the fire section of the 3rd plaintiff-company, originally stated that the Railway Surveyor has omitted to include the assessment value of the said five bales weighing 2,000 lbs., and the present claim of Rs. 44,387-15 includes the value of the five bales. But, later he has admitted in cross-examination that after assessment, the second plaintiff removed the damaged goods and sold them as waste cotton and that they did not account for the same. In the same breath, the witness has said that the goods were disposed of by the third plaintiff for about Rs. 15,000. That account had admittedly not been filed into Court. In the plaint, the plaintiffs have claimed the value of 2,000 lbs. of cotton alleged to have been blown and washed away and which they claim to have been agreed to and allowed by the defendant, but not included in the damage certificate. But, after a perusal of the entire evidence, both oral and documentary, we are not able to find out where the railway h ad agreed to include the value of the said 2,000 lbs. of cotton in the damage to be assessed. Exhibit A-17 is the letter written by the second plaintiff to the defendant stating that while assessing the damage, it was agreed between them that an allowance of five bales (approximately 4,00 lbs. each) viz., 2,000 lbs., be given for the lost cotton mixed with the ashes, blown away by winds and washed away by water, whilst kept in the open railway yard, and further by that letter it was requested to issue an addendum to the survey certificate including the a value of the said 2,000 lbs., of cotton. Exhibit A-18 is the reply sent by the Railway. In Exhibit A-18 the Railway has replied that the survey report, Exhibit A-9,_was drawn according to the actual conditions, taking into account all aspects. In this connection, we may point out that the lower Court has completely erred, in holding in para. 22 of its judgment, as though the Railway had stated under Exhibit A-18 that the value of 2,000 lbs. of cotton was taken into account while assessing the damage. After a perusal of Exhibit A-18, we find that the Railway has not admitted this claim of the plaintiff but on the other hand they have asserted that the survey report Exhibit A-19 was correctly drawn. Then, by Exhibit A-11, dated 8th June, 1964, the 2nd plaintiff had claimed the inclusion of the value of 2,000 lbs. of cotton in the damage certificate. Exhibit A-13 is the reply dated. 6th July, 1964, sent by the Railway. In this reply, the Railway has not accepted the plaintiff's claim. But, they have also not mentioned anything about the 2,000 lbs. of cotton. By this letter, they have in general repudiated their liability. In the absence of any specific admission on the part of the Railways, with regard to this claim, it is not possible for us to hold that the Railway agreed to include the value of the 2,000 lbs. of cotton in the damage assessed. From the foregoing discussions, we hold that the value of 2,000 lbs. of cotton at the rate of Rs. 307.92 'per quintal, which works out approximately to Rs. 2,800 cannot be claimed by the plaintiff in the value of the damage suffered by them. Mr. Srisailam puts forth an argument that the 3rd plaintiff has sold the waste cotton for Rs. 15,000 and therefore, if the suit is being decreed, the said amount of Rs. 15,000 should be deducted from the suit claim, because otherwise the plaintiffs would be unjustly enriching themselves. This argument is not acceptable. The defendant has assessed only the extent of the damage to the goods. On the other hand, in the written statement they have admitted that the damage certificate was issued to enable the second plaintiff to remove the goods. Therefore, they do not question, the right of the plaintiffs to sell the goods removed by them. Now, there is no evidence to show whether the sum of Rs. 15,000 includes the sale proceeds of the 2,000 lbs., of cotton also. In any event, since, as already stated, there is no evidence to prove that the Railway agreed to include the same, we are constrained to hold that the plaintiffs are not entitled to include the value of 2,000 lbs. For the above reasons, we deduct the sum of Rs. 2,800 from the suit claim.
33. In the result, we allow the appeal with proportionate casts and decree the suit with the above modification and direct the respondent-defendant to pay to the third appellant-third plaintiff Rs. 41,587-15 (Rs. 44,387-15 less Rs. 2,800) with interest thereon at six per cent. per annum from date of suit till date of realisation and for proportionate costs of suit.