Renupada Mukherjee, J.
1. The salient facts involved in this appeal are not in dispute. A consignment of 222 bags of potatoes weighing 444 maunds was despatched from Patna Ghat railway station on the Eastern Railway on 2nd May, 1950, to Mograhat railway; station, the consignor being one Lakhi Chand Sha and the consignee being Mohatam Ram Subedau Singh. The goods were loaded in a wagon with an iron floor on the consignor's responsibility who also duly executed risk note in forms A and B. The wagon was attached to Down goods train No. 214 and when that train reached Jhanja station on 4th May, 1950, the wagon containing the potatoes was deiached and detained at that station till 11th May, 1950, on which date it was attached to another goods train. The consignment ultimately reached Mograhat station on 15th May, 1950, when the Station Master found that the entire stock of potatoes had decomposed so much that the potatoes were totally unfit for human consumption. Thereafter the potatoes were destroyed under the orders of the Health Officer of Mograhat and made over to West Bengal Government for purposes of manure.
2. Upon the above admitted facts the plaintiff contended that the goods were of perishable character and there were gross negligence and misconduct on the part of railway officers in not delivering the goods within reasonable time and the loss occasioned to the plaintiff was caused by such negligence and misconduct. The plaintiff claimed a sum of Rs. 4773/- by way of compensation for such loss.
3. The defence of the Union of India which represents the Eastern Railway Administration was that the railway administration had no liability because there was no negligence or misconduct on the part of any railway officer and, in any event, the loss, if any, was not attributable to such negligence or misconduct.
4. The trial court accepted the defence of the defendant and dismissed the suit. In appeal the lower appellate court reversed the decree of dismissal passed by the trial court and decreed the suit in favour of the plaintiff. This second appeal has been preferred by the Union of India.
5. Two points have arisen for our consideration in this appeal. First, whether there was any misconduct on the part of railway officers in the carriage of the goods from Patnaghat to Mograhat railway station. Secondly whether any loss was caused to the plaintiff by reason of such misconduct. The alleged misconduct in the present case consisted in carrying the goods which were known to be of a perishable character to the destination station after an unusual and unreasonable delay which was not accounted for by the railway administration. It is an admitted fact that the goods train to which the wagon containing the disputed consignment was attached, reached Jhanja on 4th May, 1950. The wagon in question was detached from the goods train at that station and was detained for seven days after which it was despatched on 11th May, 1950, by being attached to another goods train. This period of detention, which was a fairly long period considering the nature of the goods, was sought to be explained on behalf of the appellant by making out a case of scarcity of locomotives, congestion in the railway yard at Jhanja and derailment of 5 Up Punjab Mail train a few miles down Jhanja station. These explanations were not accepted by the lower appellate court although they were considered to be sufficient by the trial court. In our opinion these explanations about the detention of the wagon at Jhanja are completely wide of the mark, because no explanation has been forthcoming at all to show whether there was any necessity for detaching the wagon at Jhanja. It is in evidence that the down goods train No. 214 to which the wagon was attached from Patnaghat travelled right up to Asansol. The potatoes in question had been loaded in a full wagon. It would appear from the evidence of Sri S. N. Mallik who was working as Goods Clerk at Patnaghat at the relevant time that a label 'perishable' was affixed to the wagon. His evidence further shows that 'pushon' advice was also given to the Control as well as to the Guard and Assistant Station Master on duty. It, therefore, seems that due precaution was taken at the despatch station for the purpose of expediting the transit of the wagon. It is not understood why in spite of these precautions the wagon was detached from the main goods train and detained at Jhanja for one week. In the absence of any explanation to show what was the necessity for the detachment, it must be held that the wagon was detached and detained on account of gross negligence on the part of some railway officers at Jhanja amounting to misconduct. Mr. Bose appearing on behalf of the appellant Union of India, had to concede fairly that this is the true legal position. The first point raised in this appeal is, therefore, decided against the appellant and in favour of the respondent.
6. Mr. Bose, however, laid much stress on the other question raised in this appeal and contended that although the detention of the wagon at Jhanja amounted to misconduct on the part of some railway officers, there is no evidence to justify the conclusion that the loss sustained by the plaintiff is attributable to such misconduct. He submitted that the goods were loaded in a wagon with an iron floor at the choice of the consignor himself in the sultry month of May and 25 bags of potatoes were in a wet condition at the time of the despatch. Mr. Bose contended that in the circumstances it might very well be that the potatoes became decomposed within 6 days of the commencement of the journey. He contended that the plaintiff did not adduce any evidence to show that the potatoes remained in a good and sound condition for at least six days from the day of despatch which must be taken in the present case as the normal or reasonable period for the journey, after excluding the period of detention.
7. In our judgment the above contention of Mr. Bose cannot be accepted in view of the special circumstances of this case.
8. It is not disputed that the potatoes were in a good and sound condition when they were loaded in the wagon at Patnaghat railway station although 25 bags from out of the whole consignment were in a partially wet condition. This would be evidenced from respondent's witness Kumud Ranjan Guha (P.W. No. 1) who was not cross-examined on this particular point. The Station Master of Mograhat railway station no doubt said in his deposition that the usual period of the journey consists of 10 or 11 days. This statement cannot be accepted as correct because the consignment reached Mograhat within 13 days of the date of despatch excluding the date of despatch. The wagon was detained at Jhanja for seven days. If the period of detention be excluded from the total period of the journey, then it must be held that the normal period for the journey should not have exceeded six days in the present case. Whether or not the goods became decomposed within this normal period of six days must be a matter of inference of the court under Section 114 of the Indian Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events. 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 very 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 had 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 are 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, AIR 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 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. The second point raised in this appeal is decided against the appellant.
9. As both the points raised in this appeal on behalf of the appellant have failed, this appeal is dismissed with costs to the respondent.
B.N. Banerjee, J.
10. I agree.