G. Ramanujam, J.
1. The defendant in O.S. No. 69 of 1960 on the file of the Sub-Court, Salem, is the appellant before us. The suit was filed by the plaintiffs, Sri Rajendra Mills Limited, Salem and the Eagle Star Insurance Company Limited, Bombay, against the Union of India representing Southern Railway and Central Railway for damages in a sum of Rs. 10,128 being the loss suffered by them as a result of the damage to the first plaintiff's goods by fire. The facts which gave rise to the suit are not in dispute. The first plaintiff was a consignee of 100 bales of pressed cotton from Messrs. Naran Das Rajaram (Private) Limited, Bombay. The bales were securely packed and delivered in good condition at Banosa in the Central Railway and were accepted for carriage at railway risk to be delivered to the plaintiff at Salem in Southern Railway; under invoice No. R.R. No. 9120 of 34 dated 2nd March, 1959. Out of the said consignment of 100 bales, 90 bales were loaded in one wagon and 10 bales were loaded in another. The wagon containing 90 bales arrived at Salem and the contents were found to be damaged by fire. The remaining 10 bales were however, received later in good condition and accepted by the first plaintiff on 9th May, 1959. As the first plaintiff refused to take delivery of the 90 bales, the railway authorites surveyed the goods on 9th May, 1959, and found 21 bales were in good condition and the other 69 bales were damaged and they assessed the damage for 23 bales at 22 per cent.; 30 bales at 30 per cent.; 16 bales at 40 per cent. The plaintiff took delivery of the 21 bales which were in good condition and refused to take delivery of the damaged bales. Ultimately the damaged 69 bales were sold with a view to minimise the damages, through the intervention of the second plaintiff who are the insurers for the consignment for Rs. 21,000.
2. It was the plaintiffs' case that the resulting loss caused to them by the fire was Rs. 14,105, that the damage was caused due to the acts of negligence, malfeasance and non-feasance on the part of the Railway administration during the transit of the goods and that though they are entitled to claim the said damage of Rs. 14,105, they are restricting their claim in the suit to Rs. 10,128, being the damages at the percentage estimated by the Assistant Traffic Superintendent at the survey held on 9th May, 1959.
3. The defendant admitted that 100 bales of pressed cotton were accepted for carriage from Banosa to Salem on 2nd March, 1959, and they were sent in two wagons as stated by the plaintiffs. As regards the consignment of 90 bales which was loaded in one wagon C. R. 4028 at Banosa station, the defendant pleaded that they were transhipped into P. R. C. 88933 at Murtazapur owing to break of guage on 5th March, 1959, that it was received at Balharsha on 6th March, 1959 and that soon thereafter the wagon was found on fire which was immediately extinguished with the help of water from the water hydrant nearby. According to them the fire was purely accidental and not due to any negligence or misconduct on the part of the railway administration or its servants. They stated that all care and caution required of the railway had been taken, that the cause of fire was not known, and that the fire was beyond the control of the railway authorities. The defendant repudiated the claim on the ground that the fire was purely accidental and not due to any misconduct or negligence either on the part of the railway administration or its servants.
4. The learned Subordinate Judge of Salem, who tried the suit, found that the goods were carried by the defendant at the risk of the railway and as such it was for the railway administration to show that the damage was caused not on account of any negligence or misconduct on the part of the railway administration or its servants. This finding that the goods were carried at the risk of the railway is not challenged before us. The learned Subordinate Judge, after considering the evidence, both oral and documentary, held that the damage was occasioned on account of the negligence on the part of the railway administration and assessed the damage in a sum of Rs. 8,623/85 and granted a decree for the said sum.
5. The learned Counsel for the railway administration did not dispute the quantum of damages fixed by the lower Court. The only three contentions that were urged before us by the learned Counsel for the Railways:
1. That the trial Court was in error in taking the view that the burden of proving want of negligence or misconduct is on the part of the railway administration ;
2. that the trial Court has not properly appreciated the evidence adduced by the railway administration which is sufficient to shift the onus to the plaintiffs in whom the burden of proof of the issue as to negligence ultimately rests; and
3. that the trial Court was also in error in invoking the presumption under Section 114 (g) of the Indian Evidence Act and the principle of res ipsa loquitur [sic] to the facts of the case.
6. According to the learned Counsel for the appellant, even in a case where the goods are carried at railway risk, once the railway satisfies the Court that they have taken all due care and caution as a man of ordinary prudence would take on such goods if they were his own, the burden of proof shifts to the plaintiffs and they have to prove positively that the railway was negligent and that the loss had occurred as a result of such negligence. The learned Counsel took us through the evidence of the various witnesses on the defendant's side and urged that the evidence adduced is quite sufficient to show that the defendant has taken all possible care and caution as a man of ordinary prudence would take if the goods were his own. He particularly relied on the evidence of D.Ws. 1, 6 and 8.
7. D.W. 1 is the tally clerk at Murtazapur who stated that he transhipped the suit consignment into Wagon No. E. R. 88935, that he had the wagon cleaned up and examined before loading and that he found the wagon water tight. In cross-examination he has, however, admitted that there were no train examining staff at Murtazapur, that normally they do not actually examine the wagons if they are labelled as 'stencilled ' and that as the wagon was stencilled 'water tight' he presumed the wagon to be ' water tight.' He also stated that one Contractor Hammal transhipped the goods from narrow gauge wagon to broad gauge wagon under his supervision. From the evidence of this witness, D.W. 1, it is clear that he did not in fact test the wagon for water tightness and he merely proceeded on the basis that the wagon was ' water tight ' as it was labelled as stencilled ' water tight ' and that the Contractor, Hammal, was entrusted with the task of transhipment from narrow gauge to broad gauge at Murtazapur.
8. D.W. 6 a Train Examinaer, at Balharsha where the fire was noted for the first time, speaks to the fire extinguishing operations and his check of the wagon after the fire was put out. He states that he checked the body of the wagon for cracks, crevices, etc., and the wheels for hot axle break power etc., and found the wagon without any of the defects. His evidence has been relied on by the learned Counsel for the appellant for showing that the railway administration has taken all possible precautions and the wagon which carried the consignment was without any defect.
9. D.W. 8 was a Train Clerk at Balharsha and he speaks to the fact that the wagon containing the suit consignment arrived at Balharsha and he recorded the particulars of the wagons in the Trains book on arrival and he checked the train and found nothing wrong in the wagon carrying the suit consignment. He admits in his cross-examination that his checking was confirmed only to noting of missing seals, defective doors etc., and not to any mechanical condition of the wagon. He states that it is not his duty to check the mechanical conditions and other defects in the wagon.
10. D.W. 2 who was the Assistant Station Master at Balharsha, has deposed that the suit wagon was 13th from the engine, that as soon as smoke was noticed from the wagon, the wagon was isolated and worked under the water column, that all the bales were unloaded and that the fire was completely extinguished. He stated that the particulars of the fire accident was recorded in A.S.M.'s diary, that there was a departmental enquiry later on about this fire accident conducted by the Traffic Inspector wherein he was also examined.
11. Relying on the deposition of the above witnesses examined on the side of the defendant, the learned Counsel for the appellant submits that it has been clearly established that the wagon was found to be ' water tight.' properly secured, without cracks, crevices, that the wheels were tested for hot axle and break power, etc. that the duty of the railway does not extend any further and that the railway is not responsible for accidental fire. The learned Counsel relied on the following decisions. Indian T. & G. I. Co. v. Union of India : AIR1957Cal190 , Fushraj Thanmull v. Union of India : AIR1960Cal458 , and contended that where the defendant has shown that there has been no failure or negligence on its part, it is incumbent upon the plaintiff, in order to establish liability on the defendant, that there was negligence on the part of the railway authorities or their servants or agents. According to the learned Counsel, the plaintiff has not adduced any evidence in this case to prove want of care or that there was negligence on the part of the railway authorities or their servants or agents. On the facts of the case in Fushraj Thanmull v. Union of India : AIR1960Cal458 , it was held that the cause of fire was beyond any control of the railway authorities and that on the materials disclosed by the railway authorities it was clear that they took all possible care and precaution to extinguish the fire and were not negligent in any manner. On the findings aforesaid the Court held that the defendant was not liable for damages as the plaintiff did not show any ground to suggest that there was any negligence or misconduct or lack of care on the part of the railway authorities or its servants or agents.
12. In Indian T. & G.I. Co. v. Union of India : AIR1957Cal190 , dealing with the responsibility of the railway administration in cases of this kind, G.K. Mitter, J., expressed as follows:
The responsbility of the railway administration, therefore, is that of a bailee under the provisions of Section 151 of the Contract Act. It has to take as much care of the goods bailed to it as a man of ordinary prudence would, of his own goods of the same bulk, quality and value, and by virtue of the provisions of Section 152, is not to be responsible for any loss, destruction or deterioration if it has taken the care which Section 151 enjoins upon it. The result of the statutory provisions, therefore, may be summarised as follows:
1. The railway administration must take as much care of the goods while under its control as a man of ordinary prudence would take of such goods if they were his own.
2. The railway administration is liable for the loss, destruction, etc., if it happens by its default or negligence.
3. When loss, destruction, etc., occurs, it is not for the plaintiff to prove, in the first instance, as to how it happened.
Then as regards the burden of proof, the learned Judge expressed as follows:
The burden of proof of the issue as to negligence ultimately rests with the plaintiff. The plaintiff has to satisfy the Court that the defendant was negligent, but the duty of showing how the consignment was dealt with during transit lies on the railway administration, as a matter within its special knowledge. As the law does not cast on the plaintiff the obligation of proving how the loss arose and as it imposes on the defendant the duty of showing how the goods were dealt with while under its control, the latter must first adduce evidence disclosing its treatment of the goods and the plaintiff may rely on that evidence in addition to any tendered by him to show that the loss had occurred by reason of defendant's default or negligence or that the loss could not have occurred but for such default or negligence. If the defendant does not adduce all the evidence at its command, the plaintiff may, in proper cases, ask the Court to make a presumption under Section 114 (g), and to come to the conclusion that the evidence which has been withheld would have gone against the defendant.
13. We find from the facts of that case that that was also a case where goods were carried at the railway risk. With respect we agree with the view taken by the learned Judge in that case.
14. The learned Counsel for the respondents on the other hand relied on the decision of the Privy Council in River Steam Navigation Company v. Choutmull (1899) L.R. 26 IndAp 1, wherein, while dealing with a case of fire to a consignment of jute properly put on board a vessel, held that under the Indian Carriers Act, the carrier can avoid the liability if it proves that there was no negligence on its part. But on the evidence in that case the carrier was held to be liable for the loss caused by the fire, It was noted in that case that:
A fire took place and it is the common case that it did not arise from spontaneous combustion. It, therefore, must have arisen from some cause either external to the flat or internal in the flat. If it occurred from a fire within, it would appear that the onus is not discharged by the defendants, because they had the control of the flat. If the fire took place inside, they must have done something or other, or something must have happened on the vessel inside of the flat, which led to the fire. They are, therefore, driven to suggest causes for its occurring from something external to the flat; and it certainly is a very remote, and rather a fanciful suggestion that it arose from some spark coming from certain dinghies or smaller boats that were in the neighbourhood.
15. The law as to the railway's liability in respect of goods carried has been changed from time to time. Under the Railways Act of 1854 (XVIII of 1854), the railway company was answerable for any loss or injury caused by gross negligence or misconduct on the part of their agents or employees. But under the Carriers Act (III of 1865), the liability of the railway was treated to be that of an insurer. The next Act, Railways Act, 1879, took the railways out of the Carriers Act by providing that nothing in the Carriers Act of 1865, shall apply to carriage by railways and by repeal of the 1854 Act, the liability of the railways was again treated as that of insurers in respect of loss or injury to the goods carried. Under the Railways Act (IX of 1890), the liability of the railways was equated to that of bailees, instead of insurers. By the amendment in 1961, to the Act of 1890, the liability of the railway has again been equated to that of an insurer, that is, of a common carrier as it is understood in English Law. But we are concerned in this case with the Railways Act of 1890, before this amendment in 1961.
16. The question is whether the defendant in this case has exonerated itself by showing that it has taken due care and caution in the carriage of the goods. From the evidence discussed above, it seems to us that the railway has not discharged the onus by showing that all possible care and caution has been taken in this case. It is seen that the goods were transhipped from the narrow gauge to broad gauge at Murtazapur on 5th March, 1959, in the suit wagon without the same being actually tested for water tightness. D.W. 1 has admitted that he assumed that the wagon was ' water tight' as it was labelled as ' stenciled water tight ', and that he was not aware as to when the wagon was last overhauled. From this it is clear that the consignment of the cotton bales was placed in a wagon which was not actually tested to be water-tight. There is another factor which is also significant. The goods were transhipped by a contractor, one Kamal, from the narrow gauge to broad gauge and the transhipment according to D.W. 1 would have taken 30 to 45 minutes. It is not known how the goods were handled by the Contractor or his servants during transhipment. A doubt arises at to whether there was any negligence by the said Kamal or his servants during transhipment and it cannot be ruled out as the said Kamal or any one of his employees have not been examined. The evidence of D.W. 1 that the transhipment was done under his supervision is too much to be believed as he could not be expected to have been present throughout on the scene during the course of transhipment which admittedly took 30 to 45 minutes. Further, there is no evidence before the Court as to the history of the wagon as to when it was overhauled and stenciled. Though D.W. 6 the Train Examiner has deposed that after the fire was extinguished there was a mechanical examination of the wagon that he found the wagon without any defect and that he immediately released for traffic for re-loading, it is difficult for us to believe that there was such a thorough examination as spoken to by this witness for, if there was no defect in the wagon, fire should have originated from inside from spontaneous combustion, which is the case put forward by the defence in this case, or the railway must have done something or other or something must have happened inside the wagon which led to the fire. We are left in this case with the doubt as to the origin or the cause of the fire. In this connection, we have to note that there was a departmental enquiry conducted on the cause of fire by the Traffic Inspector sometimes after the fire was put out and this is spoken to by D.W. 2, the Assistant Station Master at Balharsha. The said enquiry should have thrown some light as to the cause of the fire. But that report of the enquiry officer is not before the Court. The enquiry officer who could have thrown considerable light on this question has not also been examined. It is not known who were all the witnesses who were examined in the said enquiry and what was the result of the enquiry. In the absence of the examination of the enquiry officer who enquired into the cause of the fire immediately after it occurred, we are not prepared to hold that the fire was only accidental. The defendant cannot be held to have discharged its onus of showing that it has exercised all reasonable care and caution in dealing with the suit consignment. In the circumstances we are of the view that the principle of res ipsa loquitur [sic] and the presumption under Section 114 (g) of the Evidence Act, may be applied to the facts of this case.
17. The learned Counsel for the appellant cotends that the enquiry report is not evidence that the defendant is not bound to produce the same and that the non-production of the same cannot lead to an adverse inference being drawn against the appellant-defendant. It is said that the enquiry report is only an opinion expressed by the enquiry officer and it has no evidentiary value before the Court. It is true that the enquiry report of the deposition of witnesses examined in the departmental enquiry cannot be treated as substantive evidence in this case, but the statements given by the witnesses before the enquiry officer can be used for purposes of testing the veracity of the witnesses examined before the Court. The enquiry report will throw considerable light as to the cause of the fire. Though the defendant in this case cannot be compelled to produce the document against its will, the non-production of the same can be taken by the Court as an unwillingness on the part of the defendant to produce all the contemporaneous document relevant to the issue before the Court. As already stated, the defendant cannot be said to have discharged its onus of proving that it has exercised all possible and responsible care and caution which a prudent man would do if the goods were his own. On the facts it has to be taken that steps taken by the Railways to secure the goods against loss or damages were inadequate.
18. In the result we confirm the decree and judgment of the trial Court and dismiss the appeal with costs.