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A. Abdul Shukoor and Co., by Pertner A. Abdul Shukoor Sahib Vs. the Union of India (Uoi) Owning the Central Railway, Represented by the General Manager, Central Railway and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1971)1MLJ400
AppellantA. Abdul Shukoor and Co., by Pertner A. Abdul Shukoor Sahib
RespondentThe Union of India (Uoi) Owning the Central Railway, Represented by the General Manager, Central Rai
Cases ReferredUnion of India v. Mahadeolal
Excerpt:
- - the plaintiff booked certain quantity of wet salted goat skin and wet salted sheep skin from bolanganj to madras under an invoice dated 16th april, 1960. according to the plaintiff the goods were properly cured, were in perfect good condition at the time of booking and also securely packed according to packing rules. , agra, that the goods when purchased were in good condition, that immediately after the goods were purchased from slaughter houses, the skins were immediately salted in his presence and that the goods in good condition were carefully packed in gunnies and on the same day delivered to the railway for despatch to madras. he stated that the skins must be kept in the shade in well-ventilated spaces, that the skins after curing must be kept without one skin-touching,.....k.s. ramamurti, j.1. the plaintiff, a firm of tanners and exporters, carrying on business in hides and skins, is the appellant in this second appeal. the plaintiff booked certain quantity of wet salted goat skin and wet salted sheep skin from bolanganj to madras under an invoice dated 16th april, 1960. according to the plaintiff the goods were properly cured, were in perfect good condition at the time of booking and also securely packed according to packing rules. the goods arrived in madras on 10th may, 1960, after an interval of 23 days, though the usual period of transit from bolanganj to madras is only 10 days. the goods emitted foul smell and the plaintiff who apprehended serious damage to the goods while in transit, asked for open delivery which request was conceded by the railway......
Judgment:

K.S. Ramamurti, J.

1. The plaintiff, a firm of Tanners and Exporters, carrying on business in hides and skins, is the appellant in this second appeal. The plaintiff booked certain quantity of wet salted goat skin and wet salted sheep skin from Bolanganj to Madras under an invoice dated 16th April, 1960. According to the plaintiff the goods were properly cured, were in perfect good condition at the time of booking and also securely packed according to packing rules. The goods arrived in Madras on 10th May, 1960, after an interval of 23 days, though the usual period of transit from Bolanganj to Madras is only 10 days. The goods emitted foul smell and the plaintiff who apprehended serious damage to the goods while in transit, asked for open delivery which request was conceded by the railway. When the packages were opened and sorted, it was noticed that the goods were seriously damaged and the railway gave a certificate, Exhibit A-1, dated, 12th May, 1960, containing the particulars of the extent of damage. 1,000 pieces of goat skins were partly damaged, 450 pieces greatly damaged and 250 pieces of sheep skins were partly damaged and 345 pieces greatly damaged (Vide Exhibit A-1). The plaintiff instituted the suit for damages in a sum of Rs. 3,490-37, the complaint being that the damage was sustained on account of the want of care and negligence on the part of the railway, that the goods were not properly looked after while in transit, had been exposed to sun and rain and that the goods had deteriorated on account of the great delay in the duration of the journey for which there was no explanation. To the claim for damages made in the notices, Exhibits A-2 and A-4, the Railway sent a cryptic reply repudiating the plaintiff's claim using the set phrase 'inherent vice of the commodity. The plaintiff's clerk who was examined as P.W. 1 gave evidence. The Railways adduced absolutely (literally) no evidence, did not even file the forwarding note, adduced no evidence whatsoever as to why the journey, took 23 days and gave no account about this unusual delay of 13 days especially with respect to consignment of goods which would perish or seriously deteriorate as days pass on. The plaintiff's clerk gave evidence that he went to Agra and purchased the goods from Munir & Co., Agra, that the goods when purchased were in good condition, that immediately after the goods were purchased from slaughter houses, the skins were immediately salted in his presence and that the goods in good condition were carefully packed in gunnies and on the same day delivered to the railway for despatch to Madras. In cross-examination he gave evidence that the slaughter houses in Agra were three miles from the place of Munir & Co., that the skins were salted on the very day when they were brought from the slaughter houses and that the packing was done within one week after the skins were salted. He also gave evidence about the details concerning the care taken in packing the materials; he stated that the skins must be kept in the shade in well-ventilated spaces, that the skins after curing must be kept without one skin-touching, another and all this was done in his presence by the employees of Munir & Co. and it was only thereafter that the skins were packed. A reading, of his evidence shows, that if accepted it would prove that the goods were properly cured, properly and adequately salted, were in good condition and were carefully packed and delivered to the railway. This evidence, if accepted, is an effective answer to any theory of inherent vice or defect in the goods. On Issue No. 1 'Were the skins perfectly cured and in sound condition when booked?' the trial Court accepted the evidence of P.W. 1 and found in favour of the plaintiff. While dealing with this aspect, the trial Court has adverted to the important fact that there was no evidence on the side of the railway, that the railway has not even produced the forwarding note which, if produced, would show any remark made about the condition of the goods at the time of the booking. Issue No. 1 is dealt with in paragraph 5 of the trial Court's judgment which shows that the trial Court was impressed with the evidence of P.W. 1 and has completely accepted the same. On Issue No. 3, 'Whether there was delay in transit,' the trial Court found that the usual period is only ten days, there was no evidence whatsoever on the part of the railway about this unusual delay of the extra 13 days and that the railway has not placed any evidence as to what happened to the consignment during transit, what difficulty the railway experienced, whether they were due to negligence on the part of the railway, any defect in the wagon, any necessity to set right the wagon, its doors etc. and how this consignment was dealt with during this period of 23 days etc. The result was that the trial Court had no hesitation in finding against the railway that there was considerable delay in transit. On Issue No. 4, 'whether the defendants had taken due and proper care of the goods when they were in their control,' the trial Court found that the railway had not discharged its duty as a bailee to show what care it took of the goods and the railway adduced no evidence whatsoever as to how the railway handled the packages from the time of their consignment till delivery at Madras. Even so, the trial Court dismissed the plaintiff's suit relying upon an unreported Bench decision of this Court in East Asiatic Co. Private Ltd. v. The Union of India by the General Manager, Southern Railway A.S. No. 193 of 1960. Relying upon some observations in the Bench judgment that the safe period would be about eight weeks and that when the end of the safe period comes nearer and nearer, the danger of damage to the goods increases more and more it held that the evidence of P.W. 1 was not sufficient to show when the skins were cured and as to when they were purchased. The learned trial Judge (it is important to quote his own language) observed:

P.W. 1 has admitted in cross-examination that he cannot mention now the date on which the goods were purchased in Agra by him as well as the date on which these skins were purchased at the slaughter houses by Munir and Company, the sellers of the plaintiff.

It is important to observe even at this stage that the learned trial Judge did not reject or disbelieve the evidence of P.W. 1 as being interested. He was fully alive to the questions which were put to P.W. 1 in the course of the cross-examination. In paragraph 5 while dealing with Issue No. 1, the trial Judge has accepted the evidence of P.W. 1 to the effect that there was clear evidence regarding the condition of the goods at the time of the booking and what precautions and particular care P.W. 1 took in purchasing the goods and in seeing to it that they were cured and properly salted and ultimately carefully packed. Thus it is clear that the short ground on which the plaintiffs suit was dismissed was that on the 'date' when oral evidence was recorded (Note the use of the word 'now' in paragraph 9 of the judgment by the Judge), P.W. 1 could not mention the date on which the goods were purchased and taken out of the slaughter houses. To reiterate, the narrow ground on which the trial Judge dismissed the suit was not that he was not impressed with the evidence of P.W. 1 but that evidence was not sufficient. The trial Judge certainly knew that the plaintiff's case rested upon the interested testimony of P.W. 1 who was cross-examined. Yet the Judge did not make any adverse observation about the demeanour of the witness; he did not observe that he was not satisfied with his evidence; on the other hand in paragraph 5, he has stated that there was no contra evidence to the evidence of P.W. 2 thereby indicating in more places than one that he was impressed with his evidence especially in the background of total absence of any evidence on the part of the railway not even producing the forwarding note and the railway not adducing any evidence as to how the consignment was dealt with during the journey of this long interval of 23 days. As I shall presently show, the trial Judge decided against the plaintiff on a mechanical application of the unreported Bench decision of this Court without appreciating that that decision only indicated certain guidelines in the case of consignment of hides and skins and did not lay down any proposition of law to be applied in the abstract irrespective of the particular facts of the case. On appeal, the appellate Court clubbed all the points together and set out two points for determination:

1. Whether the damage was caused by the inherent vice of the goods?

and

2. Whether the damage was due to negligence on the part of the respondents railways?

I am sorry to say that the appellate Court in assessing the evidence and disposing of the appeal started at the wrong end and in a dry and mechanical manner applied the unreported Bench decision of this Court. On the main points, like the trial Court, it also held that there was a duty on the part of the railway to explain this unusual delay of 13 days in the journey, that the railway has not discharged its duty, that the railway has not explained as to what happened to the goods at every stage during the transit and that in the face of the total absence of any evidence on the part of the railway it was plain that the railway cannot contend that they had discharged their duty as bailee. Even so, relying upon the Bench decision of this Court in A.S. No. 193 of 1960, it dismissed the plaintiff's-suit in the view that the evidence adduced by the plaintiff cannot be accepted. I am of the view that instead of carefully assessing the evidence adduced in the instant case and without drawing the necessary adverse influence, the lower appellate Court had pursued a line of reasoning, somehow to hold the instant case, as being directly governed by the unreported Bench decision. I have carefully perused the judgment of the lower appellate Court and I am satisfied that the entire approach is wrong; it has started the discussion at the wrong end, taking the unreported Bench decision a laying down certain inflexible conditions-overlooking the main distinguishing feature in that case, namely, that there was evidence adduced in that case on the side of the railway satisfactorily explaining while the evidence adduced on the side of the plaintiff was wanting in certain crucial aspects. The finding of the lower appellate Court that the railway ought to have explained why there was this unusual delay of 13 days and how the consignment was dealt with in the course of transit and that the railway had not discharged their duty of showing that they had taken proper and reasonable care of the goods as a prudent owner would take of his own goods, has not been properly reflected in its ultimate decision. It has overlooked the most important fact that in the matter of hides and skins as the end of the safe period comes nearer and nearer, the danger of damage to the goods increases more and more and that the railway's responsibility accordingly becomes greater and greater, that it is the obvious duty of the railway to adduce satisfactory evidence as to why there was an unusual delay of 13 days and how the consignment was dealt with and that in the absence of evidence to that effect, the adverse inference will have to be drawn against the railway that the damage to the goods was caused by the unreasonable delay in transit.

2. It will be convenient at this stage to refer to the Bench decision (A.S. No. 193 of 1960) (unreported) above mentioned. In that case the consignor consigned hides and skins packed in gunny bags at the Vizianaaram station on 10th September, 1955 and the goods reached Madras on 7th October, 1955, after an interval of 27 days. The normal time for such transit is 10 days and there was a delay of 17 days. There too, open delivery was asked and conceded by the railway and on opening the packages it was found that the goods had sustained serious damage. In the suit for damages against the railway, the main complaint of the consignor was that the damage at the destination of the goods was consequent upon delay in transit. The bulk of the discussion in the decision related to the main features of the leather industry and the precautions to be taken for curing and preserving the hides and skins and reference was made to leading journals and books on leather industry. It was observed that the damage and deterioration to the goods would depend upon the degree of want of care taken in curing and salting in time and also upon climatic factors and that in India generally hides and skins could be preserved for 7 weeks without any putrefactive damages. A perusal of the judgment shows that the decision was rested more upon the finding that the railway had quite satisfactorily accounted for the delay and it had taken the amount of care which a prudent owner would take of his own goods under similar conditions. The concerned railway employees were examined and it was found that at Vizianagaram, the railway had taken all the necessary precautions, there was no defect in loading arrangements and that every precaution was taken against rain water seeping into the leather material, that the wagons were watertight wagons, that at Waltair, the train examiner noticed that the bearing spring-plates were displaced and broken, immediately the wagon was sent to the station yard for repair, that it was there noticed that the drum bar nut was absent requiring further repairs, that certain parts were not available in Waltair and they were secured by sending a wire to the railway to which the particular wagon belonged and that all these took time. The Bench found that the delay was due to unforeseen repairs that had occurred during transit and that the railway had promptly attended to the matter. The Bench while discussing the oral evidence of the plaintiff observed that his evidence was general and vague and that there was no evidence as to the interval between the purchase of the skins and when they were cured and salted. There was the further fact in that case that the goods were purchased by the plaintiff in different places and there was no evidence that the skins were, without any time-lag, cured and salted immediately after the purchase. On the facts, it was also found that the goods had been cured and salted long before the despatch and the consignment and there was no evidence about the interval. Thus it will be seen that while _ this Bench Judgment indicated certain guidelines as to how the problem should be solved in the light of the information furnished by the leading journals and books on leather industry, it rested its decision on two points:

(a) The railway had satisfactorily accounted for the delay; the railway had accounted as to how the consignment was dealt with from stage to stage and the railway was not guilty of any negligence or want of care and that several railway employees were examined to give evidence on all the aspects.

(b) The evidence adduced on the side of the plaintiff was wholly insufficient, there was no evidence that the goods were cured and salted immediately after the purchase and that the packages were despatched long after curing. There was also no evidence about the precautions taken by the consignor. In my view this Bench decision is only authority on the question as to the precautions and careful steps that the consignor should take before consigning the goods of this description and (2) that there must be evidence in every case that these precautions were taken by the consignor, that there was no time lag or interval between the purchase of the goods and the curing and salting and that no interval was allowed to lapse for any deterioration to set in. In other words, the consignor must adduce positive evidence on these aspects and the railway also should adduce evidence as to how it dealt with the consignment during all the stage of the journey.

3. Let me apply to the instant case the guidelines laid down in the unreported Bench decision. So far as the trial Court is concerned, as observed already, it completely accepted the plaintiff's evidence, its only criticism, being that that evidence is not sufficient. After referring to the unreported Bench decision, this is what the trial Court has observed:

But in our present case there is no evidence as to when these skins were cured and as to when they were purchased. P.W. 1 has admitted in cross-examination that he cannot mention now the date on which the goods were purchased in Agra by him as well as the date on which these skins were purchased at the slaughter houses by Munir & Go, the sellers of the plaintiffs. What is more he has clearly admitted that he cannot mention also on what dates these skins were cured or salted.

This summing up of evidence of P.W. 1 as to what this witness has stated is clearly wrong, as a fact, and quite unfair to the witness besides being wholly inconsistent with what the Judge himself has observed in paragraph 5 while discussing and recording his findings on Issue No. 1 namely, 'were the skins perfectly cured and in sound condition when booked.' The witness has in unambiguous terms stated that the salting of the skins was done by Munir & Co. in the presence of the witness and that on the very day they were brought from the slaughter houses, the skins were salted. He has also admitted that the packing was done within one week after the skins were salted. The witness has also given detailed evidence as to how all these precautions were taken in his presence while the skins were placed one after another without touching each other with ventilated Spaces. He has also stated that he has followed the precaution of packing the skins on the very day they were booked by the railway. Judged by any test, this undoubtedly satisfies the guidelines indicated in the unreported Bench decision. The witness said that there were records to show when he went to Agra and what expenses were incurred etc, etc. 'and those records could be produced before Court if required.' To the next question which was put to the witness, whether he can mention (Note : while giving evidence in the box) the date on which the goods were purchased at Agra, he naturally gave the reply in the following terms:

I cannot mention now the date on which the goods were purchased in Agra. I cannot say on what date the skins were purchased at the slaughter houses by Munir & Co. and on what date they were cured.

Unfortunately the trial Court has ignored the use of the word 'now' and the spirit of the answer of the witness. In my view that is quite natural and true answer because in March, 1964, while giving evidence in the witness box, without any record, no witness can give the precise dates, from memory, of an event which took place in April, 1960. Even though he said that the records could be produced if required, the railway did not care and was indifferent about the records being produced for the obvious reason that if produced they would be against the railway. Further, the fact that the witness in the box cannot from his memory say the dates when the goods were purchased in Agra and cured cannot possibly detract from the evidence which he has already given on the crucial aspect that there was no time-lag between the purchase of the skins from the slaughter houses, that the skins were immediately cured and salted, that the packing and booking were done on the same day, and that both the packing and booking were done within one week after curing and salting. I have said enough to indicate that the trial Court misread and misinterpreted the evidence and its ultimate conclusion cannot be sustained when once it is remembered that it has completely accepted the oral evidence of the plaintiff as true.

4. Let me next consider how the lower appellate Court dealt with the matter The whole discussion is very brief and is contained in paragraph 9. To start with, it does not accept the trial Court's summing up of the evidence of P.W. 1, but rightly states that if the evidence of P.W. 1 is accepted, to quote its own words 'it will be clear that the flaying and curing and booking were all done within the: first 16 days of April, 1960 and that the damage to the skins could not have resulted from the inherent vice at all as the safe period of 20 days could not expire from the date of curing till they were delivered at Madras.' In other words it was clearly of the view that if the evidence of P.W. 1 is accepted the damage and deterioration to the goods was not due to inherent vice and want of taking necessary precautions in the matter of salting and curing but due to delay in transit and the railway not taking proper and good care of the goods while in transit as a prudent owner will take of his own goods. After starting the discussion in the manner, the lower appellate Court observed that the evidence of P.W. 1, was not reassuring as it is of a clerk in the plaintiff's concern and an interested witness. It took the view that in cross-examination the witness was challenged that he did not even go to Agra, that he was not present at all when the skins were purchased and that no records have been produced to corroborate the evidence of P.W. 1 about his visit to Agra and purchasing the goods through Munir & Co., Agra, after taking these necessary precautions. The trial Court was fully alive to the fact that the evidence of P.W. 1 required careful and cautious scrutiny and assessment seeing that it is interested testimony. The trial Court after observing the demeanour of the witness and the natural way in which this witness gave the answers was impressed with his evidence. It is the duty of the appellate Court to give due weight to the impressions formed by the trial Court and not take such a light and summary view of the oral evidence. One crucial thing which has escaped the attention of the lower appellate Court is the fact that the railway was not prepared to take any definite stand, that just at the time of the trial in February, 1963, the unreported Bench decision had been rendered and the railway merely wanted to make a subtle and clever use of this Bench decision but at the same time it was not prepared to face the issue and accept the challange to produce the records. Series of questions were put to P.W. 1 in cross-examinations and the witness gave answers about his visit to Agra, his visit to the slaughter houses along with Munir & Co., purchase of the skins, salting, curing and packing and booking the goods and all the details about the precautions taken. The witness was at that stage asked about the correspondence between himself at Agra and his principal at Madras and how the expenses were incurred. The witness when pursued in cross-examination clearly stated that all these records could be produced in Court if required; but the railway did not ask those records to be produced through that witness. They were all in Madras and they could have been produced forthwith, even while the witness was in the box. It stands to commonsense that a party who adopts such a dubious attitude cannot be allowed to make a complaint of suppression of documents by the other side. The railway was not prepared to take up the challenge for the obvious and excellent reason that if those records were produced they would completely demolish the aspect presented by the railway in cross-examination. Further the cross-examination was more directed to establish that the witness, never went to Agra at all and it is here that the witness pointedly said that the records would prove everyone of the crucial aspects and the records would be produced if so required. I have no doubt that it is only because of this dubious attitude that the trial Court did not make any adverse comment against the plaintiff for the non-production of any of the records because one can easily visualise that the witness ought to have taken the challenge in the witness box that he could produce the relevant records and the railway simply ran away from that situation. Otherwise it is evident that the railway would have addressed some argument before the trial Court making a complaint of non-production of the records and if such a. complaint had been made in the arguments the trial Court would have effectively answered with the remark that P.W. 1 offered to produce the records, but the railway did not care and was indifferent. It is a matter for regret that this important portion of the evidence of P.W. 1 in the light of the dubious attitude adopted by the railway had escaped the attention of the lower appellate Court.

5. Further decisions have repeatedly laid down that statements given by parties on oath when they remained uncontradicted should not be lightly and summarily discarded as being interested and that there should be something inherent in the evidence which makes the evidence inherently improbable as untrue and not worthy of acceptance. To throw away the evidence in one single sentence that the witness is interested would in numerous cases make it impossible for a party to prove his own case when it consists only of his own evidence and there is no rebutting evidence on the other side. In this connection, I may refer to the Bench decision of this Court in Sivaskandaraju v. Narasimha I.L.R. 56 Mad. 356 : 64 M.L.J. 439 : A.I.R. 1933 Mad. 225, in which it was held that it was wrong to hold that a statement given on oath is fasle when that statement remains uncontradicted by the opposite party and there is nothing to show that the statement is inherently improbable. Venkatasubba Rao, J., observed as follows:

Mr. Ramanatha Shenai says that in the absence of evidence to the contrary we must accept the evidence of P.W. 5. The learned Judge is alive to this difficulty but gets over it by finding definitely that this witness's evidence is false. I am afraid I must most strongly differ from this view. On what material does the learned Judge hold that this witness cannot be believed? How is he justified in coming to the conclusion that his evidence is perjured? Where there is nothing to show that the statement is inherently improbable, it would be wrong to hold that a statement given on oath is false, when not only it remains uncontradicted but when the opposite party, who challenges it, deliberately abstains from adducing evidence to the contrary. In this case, whatever my conclusion may be, I am definitely of the opinion that the Judge's finding, that P.W. 1 has spoken a falsehood, cannot and ought not to be supported.

6. This summary and unsatisfactory approach to the problem by rejecting the party's evidence as interested has come up frequently for serious comment in numerous cases and what is interesting is that it is in cases dealing with the claim for damages against the railway that the Courts have repeatedly observed that the evidence given by the railway employee is not to be lightly brushed aside on the ground that the employee's evidence 1 is interested on behalf of the principal. For instance in Secretary of State v. Tulsi Das A.I.R. 1928 Lah. 56, it was observed that in majority of cases of claims against railway for loss, the railway can produce no other evidence of how it dealt with the goods except by producing those of its servants who had, dealt with the goods and therefore to disbelieve the evidence of these servants on the ground that they naturally would not admit any dereliction of duty would, be to cast an impossible burden on the railway administration. What applies to the railway ought to equally apply the consignor and it will be setting up a very dangerous precedent if the approach of the lower appellate Court which has been repeatedly condemned were to be countenanced. The matter does not stop there. The transaction is not purchase of some steel material like girders or angles which could be fixed up through correspondence and not calling for any personal supervision at the time of booking the goods. No prudent businessman in hides and skins having an eye on business would enter into large business commitments through correspondence because every thing depends upon the purchase of good material from the slaughter houses, curing and salting without any time-lag and packing, and booking the goods on the same day. That this witness P.W. 1 is aware of these precautions is disclosed in his evidence. It is familiar knowledge that big exporters of hides and skins who have necessarily to purchase large quantity of hides and skins from different places in the north send their representatives to make purchase and arrange for the booking after observing the necessary precautions. I have the least hesitation in saying that it would be quite unnatural and violently against the instinct of self-preservation to countenace a suggestion that business transactions is such a commodity would have been concluded and goods booked without a representative being present on the spot. Otherwise the obvious unnatural inference is that the plaintiff merely placed the order with an idea of deliberately taking every risk and ultimately making a claim for damages against the railway. What about his commitments to his foreign customers to whom hides and goods are exported? Are we to presume that the exporters are utterly indifferent in the initial stages and think only of a claim for damages against the railway? These special features and the atttendant risks involved pertaining to the business of hides and skins, by themselves, in my view, give corroboration to the evidence of P.W. 1. At this juncture I may refer to the observations of Mukherjee, J., (concerning normal human conduct) in a Bench decision in Union of India v. Ganesh Chandra : AIR1959Cal337 , that if the goods are likely to deteriorate even during the usual period of journey, then it would be wholly unlikely and improbable that the goods would be consigned at all. Taking all these aspects into consideration, it was the duty of the lower appellate Court to have bestowed careful thought before differing from the trial Court about its assessment of the evidence of P.W. 1. Indeed its judgment does, not even indicate that it was alive to the fact that the evidence of P.W. 1, though interested was accepted by the trial Court. The way in which the learned Judge sums up the discussion of the evidence of P.W. 1, to quote his own words, 'suspicion naturally enhances when we find the witness admitting that he could not say on what dates the skins were purchased or cured' is wrong as it is divorced from the context in which the witness has stated that while in the witness box (note the use of the word 'now') he could not say the date on which the goods were purchased and cured. The lower appellate Court should have borne in mind that if the other side made any complaint about the non-production of correspondence or records that would have been adverted to in the trial Court, that in the total absence of any reference to that aspect, no inference should be drawn against the plaintiff, especially when, in his evidence, in unmistakable terms, P.W. 1 offered to produce the records if required by the railway. To reiterate, if no such complaint was made in the trial Court it was for the excellent reason that the plaintiff was quite prepared to produce the records but only the railway did not care to have them produced.

7. My attention was also drawn to the recent unreported decision of Natesan, J., in Second Appeal No. 1681 of 1965. That decision is clearly distinguishable and turned upon the particular facts of that case. A perusal of that judgment shows that the evidence of P.W. 2 examined on behalf of the consignor was worthless, that he had even admitted that he did not know how many days the skins were old, when he purchased them in the market for despatch to Ambur and that he did not observe the necessary precautions. The facts here are different and indeed, the lower appellate Court itself has observed that if the evidence of P.W. 1 is accepted the railway would be liable for the claim.

8. It only remains to deal with the failure of the railway to adduce any evidence and disclose how it dealt with the consignment seeing that there has been an unreasonable delay of 13 days. The lower appellate Court on this point finds in favour of the plaintiff in its discussion in paragraph n, but unfortunately its finding is not followed up in the ultimate disposal of the appeal. I shall refer to some of the decisions in which this aspect of the duty of the railway to adduce evidence as to how it dealt with the consignment in the case of unreasonable delay in transit and how the adverse inference has been drawn against the railway in holding that the damage to the goods was only consequent upon the unreasonable delay in transit and not to any inherent vice in the goods. The instant case arose before the amendment of 1961 and when the amending provisions of Act LVI of 1949, were in force. The forwarding note was not produced and further in both the Courts, the case proceeded admittedly on the basis that the goods have booked on the railway's risk and not at the parties' risk so as to attract Section 74(c) of the Railways Act. The law implies that it is the responsibility of the railway administration to deliver the goods within a reasonable time and reasonable time means what is reasonable looking at all the circumstances of the case. It necessarily depends upon the goods that are carried by the railway and the unforeseen defects encountered during the transit and how without unreasonable delay those defects were rectified and matters set right. The responsibility of the railway is undoubtedly greater in the case of goods like fruits, fish, meat, betel leaves, potatoes, vegetables and hides and skins i.e., the goods which are perishable or which would deteriorate and decay if there should be unreasonable delay in transit. When the normal period of transit has exceeded and when the goods are exposed to deterioration and decay, it is the duty of the railway to place all the materials and convince the Court that the delay in transit was for reasons beyond the control of the railway and the railway had taken all the reasonable care which a prudent owner would take of his own goods while in transit. The uniform trend of decisions of the Courts shows that in the matter of goods of this description, there is a great responsibility on the railway. It is unnecessary to dilate upon the difference in the burden of proof as provided in Sections 74(c) and 74(d) of the Act, because it is now well-settled law that even in a case arising under Section 74(c) the railway is not absolved from its duty of placing all the materials before the Court and explaining how it dealt with the consignment from stage to stage and that the responsibility is always there as a bailee read with Section 106 of the Evidence Act. The railway cannot take refuge on the simple ground that the burden of proof under Section 74(c) is upon the consignor. The position is a fortiori where there has been any unreasonable delay in transit.

9. Shaikh Mohammad v. Governor-General of Council A.I.R. 1954 Nag 337, dealt with a case of consignment of 61 bags of potatoes from Sagar to Raipur on 15th June, 1945. The normal period for the transit is 6 days but the goods reached on 29th June, 1945, after 14 days with an unusual delay of 8 days. The consignment was detained at Katni for 4 days and the consignment was transhipped into another wagon and reached Bilaspur on 25th June, 1945. After some delay in Bilaspur, the goods were despatched and reached Raipur on 29th June, 1945. It was observed that even though the initial burden of proving misconduct was on the plaintiff, the railway was bound to disclose to the plaintiff how the consignment was dealt with throughout the time it was in its possession and control. It was also pointed out that it was the duty of the railway to disclose as to why the wagon was detained at Katni and why it was transhipped into another wagon. The claim for damages was upheld the Court observing that the servants concerned can be presumed to know that the potatoes were liable to deterioration on a long journey and the wagons should reach as early as possible and it was therefore the duty of the railway to disclose how the consignment was throughout dealt with.

10. In Union of India v. Ganesh Lal : AIR1956Cal99 , a consignment of onions had been booked at Magatahsil station on 9th July, 1947, to Howrah and the normal period of transit was 4 or 5 days. There was unreasonable delay and the facts disclosed that on account of some defect in the wagon, the goods were detained at Khan Alampura and after some unsuccessful attempts to repair the wagon, the goods were taken to the platform and afterwards placed in another wagon, and carried to Howrah. A perusal of the judgment shows that the Court held that having regard to the fact that the goods would perish on account of the unreasonable delay in transit, the responsibility of the railway was to explain satisfactorily why the wagon was detained at Khan Alampura and that there was no unreasonable delay in attending to the repair and transhipment of the goods to some other wagon. This decision shows that the railway cannot discharge its responsibility by merely proving that some mishap happened during the transit and that the railway should also further adduce evidence to satisfy the Court that in that particular situation the best was done by the railway with every reasonable despatch seeing that the goods would deteriorate in transit consequent upon the unreasonable delay.

11. I may next refer to the decision in Nathulal v. Dominion of India : AIR1963All137 , which dealt with a consignment of certain bags of potatoes from Kanpur to Bombay. The wagon carrying the goods was declared sick enroute at Bhusawal on 6th April, 1947 and after a delay of 5 days it left Bhusawal on 12th April, 1947. When the goods were delivered in Bombay they were found to be damaged. The Court observed that the sick wagon was detained in the siding only for a day and the repairs it needed, would not take more than 5 hours to put it right and that the railway authorities at Bhusawal had not taken reasonable and prompt steps to put the wagon in question on the rail immediately after the necessary repairs and that it amounted to misconduct on the part of the railway. The Court also observed that the railway authorities must be presumed to know that the particular wagon contained goods which would decay and deteriorate in transit and that every effort should be made by the railway to avoid unnecessary delay. It was also pointed out that in the course of transit by normal wear and tear and for other reasons, defects may crop in but it was the duty and responsibility of the railway to attend to these repairs, defects and difficulties without unreasonable delay and it was the further duty of the railway to place all the materials before the Court. It was also observed that the fact that the goods are carried by the railway at the owners' risk does not mean that the railway administration can do anything with the goods and not take proper care and avoid unreasonable delay. The argument of the railway that the burden was upon the consignor to show that there was unreasonable delay at Bhusawal and that the railway was guilty of not taking immediate steps to repair, was rejected. I am referring to these cases to show how the Courts have scrutinised the evidence in all these cases with a view to find out why the unreasonable delay occurred and how the railway had explained the manner in which it dealt with the consignment at every stage.

12. In Union of India v. Memchdnd : AIR1967Cal133 , there was a consignment of baskets of mangoes from Eklakshi to Tinsukia and there was an unreasonable delay of 7 days with the result that the goods deteriorated during transit. The railway resisted the claim for damages on the ground that the mangoes in the baskets were not green and that they were in a quite ripe condition and the goods became damaged on account of the inherent defect at the time of the consignment. The railway did not adduce evidence as to how it dealt with the consignment during this period of unreasonable delay. The Court held that having regard to the commodity sent, the responsibility was upon the railway to place all the materials to show how the goods were dealt with during the transit.

13. In Ramakrishna Ramnath Shop v. Union of India A.I.R. 1960 Bom. 344, the bench followed the decision of the Nagpur High Court in Asaram Gangaram v. Union of India, New Delhi A.I.R. 1957 Nag. 59, and held that even in cases arising under Section 74(c), it was the duty of the railway to place all the materials before the Court from which it could be inferred how the consignment was dealt with in order to ascertain whether the railway administration took as much care as is required by them. This decision has been followed in all the subsequent cases, for instance in Union of India v. Radhakrishna Ramnath A.I.R. 1969 Bom. 7, the same principle was reiterated that even in a case governed by Section 74(c), the railway administration cannot claim to be absolved from the obligations to place the relevant facts before the Court to enable it to decide the question whether the railway has taken as much care as was required of them. A reference to this judgment shows that it is the duty of the railway to prove that in the case of goods which would be damaged by water, watertight wagons were used, all the precautions were taken that the wagons were not opened in the course of transit, the wagon's doors were closed and the wagons were not exposed to rain and sun without locking--vide observations at page 10. It is important to mention that this decision has pointed out that the Court is entitled to take into account the fact that material witnesses like the despatching clerk, the parcel clerk, the station master or train examiner were not examined by the railway that the evidence of these employees would be material and that the Court would be entitled to draw an adverse inference from the non-examination of such witnesses:

14. In Union of India v. Bhagat Ram : AIR1967Delhi153 , the same view was taken about the burden of proof by a consignor under Section 74(c). Certain bags of onion were consigned on 2nd of October, from New Delhi to Calcutta and reached Calcutta on 14th October. The normal duration of transit was 8 days and there was an unreasonable delay of 7 days. The goods were booked at owner's risk and were of a perishable nature. The argument on behalf of the railway, was that there was no duty cast upon the railway to disclose, how the consignment was dealt with and the burden of proof is upon the plaintiff as the goods were carried at the owners' risk. But this argument was rejected in these terms:

Even if there be no such obligation under the Railways Act to make a disclosure, the railway administration is not completely absolved from proving facts especially within its knowledge. This duty is cast under Section 106 of the Evidence Act. It is no doubt true that in cases to which Section 74 of the Railways Act applies the burden of proving misconduct or negligence is on the plaintiff, but it is equally true that with respect to the facts within its special knowledge the railway administration should call all the material witnesses to prove such facts. In this view I am supported by Ramakriskna Ramnath Shop, Kamptee v. Union of India A.I.R. 1960 Bom. 344; Union of India v. Shri Ram Richpal : AIR1965All246 , and Union of India v. Delhi Cloth & General Mills Co., Ltd. A.I.R. 1964 Punj. 147. When examined in the light of the statutory provisions, namely, Section 74(c) of the Indian Railways Act and Section 106 of the Indian Evidence Act and of the various decisions mentioned above, the position that emerges is this.

The discussion of the evidence shows that the learned Judge scrutinised the evidence to satisfy whether the railway has taken as much care of the goods as a prudent owner would do with reference to his own goods especially when the goods would decay and deteriorate in the case of unreasonable delay in transit and whether the railway took steps to the extent possible to give priority for despatching this consignment. The same view was taken in a recent decision of the Allahabad in Union of India v. Sri Ram Richpal : AIR1965All246 . It was observed that even in a case of consignment governed by Section 74(c), where the burden is upon the plaintiff, the railway was bound to disclose what happened to the goods and how they were dealt with while in its custody and its failure to examine the material witnesses would entitle the plaintiff to ask the Court to infer that the facts if disclosed would have been unfavourable to the railway. In Krishna Reddy v. Union of India (1965) 1 An.W.R. 342 : : AIR1965AP263 , the same view was taken. What is important to mention is that the Court has observed that when the plaintiff has adduced some evidence on his behalf, it is the duty of the railway to place all the materials to prove what care it took of the goods while in transit.

15. I may next refer to the Bench decision of the Calcutta High Court of some significance reported in Union of India v. Ganesh Chandra : AIR1959Cal337 . It dealt with a case of consignment of potatoes and there was an unreasonable delay. Nothing was noted in the forwarding note about the condition of the goods nor the defect in packing (Note in the instant case, the forwarding note has not even been produced.). The Bench held that even though the case arose under Section 74(c), the railway cannot take advantage of the doctrine of inherent vice in the goods. The goods were consigned at the Patnaghat railway station to Mograhat railway station. The evidence showed that when the goods train reached Jhanja, the wagon in question was detached from the goods train and detained for seven days after it was attached to another goods train. The period of detention enroute was sought to be explained by the railway due to scarcity of locomotive and congestion in the railway yard at Jhanja. It was observed that the goods in question were perishable and it was the responsibility of the railway to take every precaution for expediting the despatch of the consignment. Dealing with the argument that the goods were of perishable nature and would well have perished during transit, the Bench observed as follows:

It is no doubt true that the potatoes in the present case were despatched under conditions which were not very favourable, to the arrival of the goods in a sound condition if any delay occurred in the arrival. At the same time it should be remembered that the potatoes were sent for commercial purposes. If the goods were likely to have deteriorated even within the usual period taken in journey, then it is not at all likely or probable that the goods would have been consigned at all. Then again, it is not to be expected that any one would travel with the potatoes which were despatched in a closed and sealed wagon. It was therefore impossible for the plaintiff-respondent to prove before the Court when the actual rotting of the potatoes started. The potatoes were all along in the custody of the railway administration. As there was an unusual and unreasonable delay in the arrival of the consignment and as the delay was due to the misconduct of some railway servants, the Court may ery well presume that the delay was the cause of deterioration of the goods and that the deterioration would not have taken place if the goods have arrived in proper time. It seems that the lower appellate Court has made this inference under Section 114 of the Indian Evidence Act and we arc not prepared to say that on the facts of this case the inference was wrongly made. In a case reported in G.A. Jolli v. The Dominion of India A.I.R. 1949 Cal. 380, it has been observed by Chatterjee, J., that if material evidence is withheld by the railway administration it may expose itself to the presumption under Section 114(g) of the Evidence Act, and will be held liable for any loss even in the absence of proof that it was caused by the misconduct of the servants. We respectfully agree with this observation of Chatterjee, J. As it was impossible in the present case on the part of the respondent to prove that the potatoes were in a good and sound condition at least for the normal and usual period of transit and as the goods were of usual period of transit and as the goods were of a perishable character and as there was unusual delay in carrying the goods on account of the misconduct of the railway servants, we hold that the loss was occasioned by reason of such misconduct.

From the above it will be seen that in the case of unreasonable delay in transit of consignments of goods which are subject to decay and fast deterioration, the railway is bound to place all the materials and satisfactorily account for the delay. In fact, in all the cases one finds a careful scrutiny of the evidence as to the steps taken by the railway. I may also refer to the recent decision of the Calcutta High Court in Mohammed Safique v. Union of India : AIR1963Cal399 , in which the forwarding note was not produced. The Court rejected the argument based upon the doctrine of inherent vice of the goods. The learned Judge observed as follows:

Once these two facts-railway risk rate and good packing are remembered, simply because the container is found leaking at the destination, the railway administration cannot take advantage of the doctrine of 'inherent vice.' Let them show first that they treated the consignment in transit as a prudent bailee would. Nothing of the kind has been disclosed.

The situation in the instant case is exactly similar.

16. My attention was also drawn to the decision in Damodar Debta v. Union of India A.I.R. 1956 Oris 222, dealing with a case of consignment of mangoes in which unreasonable delay of 13 days in delivery of the goods had been made out, misconduct on the part of the railway was inferred as the railway did not adduce any evidence to show how the consignment was dealt with during the time it was in its possession. This case also shows how Courts scrutinise evidence touching delay in the case of consignments of goods which would perish or decay consequent upon delay in transit. The principle of the decision of this Court in Madar Sahib y. The Governor-General of India in Council : AIR1952Mad679 , was followed and applied.

17. Reference may also be made to the recent decision of the Supreme Court in Union of India v. Brijlal : [1969]1SCR910 , in which the relative application of Sections 74(c) and 74(d) had been explained after adverting to the statement of the law in Union of India v. Mahadeolal : [1965]3SCR145 , which arose out of a consignment in 1947 even before the amendment by Act LVI of 1949. Both the cases dealt with goods carried at owner's risk. In both the cases the railway had adduced the available evidence. The Supreme Court has pointed out in Union of India v. Brijlal : [1969]1SCR910 , that Section 74(d) lightens the burden of proof cast upon the consignor under Section 74(c) and imposes the duty upon the railway in disclosing how the consignment or package was dealt with throughout the time it was in its possession or control and that misconduct can be inferred if such disclosure was not made. In other words, if a case is not governed by Section 74(c), the railway must discharge its duty of disclosure. The decision in Union of India v. Mahadeolal : [1965]3SCR145 , dealt with a case of consignment at the risk of the consignor, and it is in that context the measure of the duty of disclosure was explained by the Supreme Court. The instant case is not even a case of consignment at the owner's risk. The forwarding note has not been produced by the railway. The inference is, if produced, the facts recorded therein would show that the goods were in good condition and were properly packed and no reservation by way of defect in packing or goods was made by the railway. Coupled with all the circumstances, there is unreasonable delay of 13 days and absolutely no evidence was adduced on the side of the railway. 4 perusal of the written statement by the railway also shows that they are just sitting on the fence pursuing a dubious conduct not prepared to render any assistance to the Court. In such a situation, there is no rule of law nor justice which compels the Court to draw the presumption that the goods delivered to the railway for des patch were in such a condition that it can't even stand the normal reasonable time of transit. It is only if such an inference is drawn in the abstract that the plaintff can be non-suited. My attention was not drawn to any case in which the Court has allowed the railway to say:

No doubt there was unreasonable delay in transit, evidence if produced by us may show that the wagon was detained without justification during transit. The wagon was detached without justification. There was a small repair which could have been rectified within a few hours, nevertheless the railway took 5 days. On account of the breaking of the lock or the bolt, the doors opened and without closing the doors the journey was continued exposing the goods inside to rain and sun. We know that as the safe period in the case of consignment of hides and skins comes nearer and nearer, the risk or danger of deterioration is greater and greater. All these things may be there. We will not produce any evidence whatsoever, but yet the burden is upon you the consignor to show that when you consigned the goods, they were in such a condition that they would not withstand the normal period of transit.

This is exactly the extraordinary contention of the railway in the instant case. The question whether the inference of misconduct and omission to take proper care of the goods while in the custody of the railway and whether the railway, was guilty of negligence is a mixed question of fact and law and ultimate inference as to misconduct is a question of law and not a finding of fact. That apart I am satisfied that the Courts below have seriously erred in their perspective of approach which was entirely vitiated their reasonings and findings warranting interference within the limited scope of Section 100, Civil Procedure Code.

18. For all these reasons, the second appeal is allowed and the plaintiff's suit is decreed as prayed for with costs in all the three Courts.


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