UNION OF INDIA (UOI), OWNING THE SOUTHERN RAILWAY, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY Vs. BALAJI TRADING CORPORATION AND ORS.

JUDGEMENT

(1.) (O.S.A. Ms. 63 & 64 op 1970) - -These are two appeals arising out of suits filed by two different plain tiffs for damages against the Railway, the second defendant -appellant in both the appeals, for its negligence in respect of the fire that destroyed 200 cotton bales consigned from Tadpatri to Renigunta, addressed to Self and to be cleared through R.R. to be cashed through bank by the consignee. The first defendant is Tirupathi Cotton Mills Ltd., and the second defendant, as we said, is the Railway. Balaji Trading Corporation at Tadpatri is the plaintiff in the suit out of which O.S.A. No. 63 of 1970 arises and Renganayakalu and Co., is the plaintiff in the suit out of which O.S.A. No. 64 of 1970 arises. The plaintiffs contracted with the first defendant mills for supply of 200 cotton bags in each case. Both the contracts were on the same day, 27th April, 1965. On 3rd May, 1965, each of the plaintiffs consigned separately 100 bales of cotton. They arrived, in the one on 3rd May, 1965 and in the other on 12th May, 1965, at Renigunta from Tadpatri. On 15th May, 1965, 150 more bales arrived, with which the suits have nothing to do. This set of bales was stored up in the open a, few feet away from the stock of bales of the plaintiffs, also stored up in the open on the platforms. The goods were not cleared until 27th May, 1965. On that date there was a fire which destroyed the 150 bales. The cause for the fire was not known. One Govindarajulu, working as Section Officer, Andhra Fire Service at Tirupathi, speaks to the fact that on 27th May, 1965, he received a fire cell message at about 2.09 P.M., from Renigunta railway station. The message said that the cotton bales, the reference was to the 150 bales, caught fire near the goods shed and requested assistance. Immediately, at about 2 -10 P.M. a trailer pump was sent. But that was found to be insufficient. Another engine was sent, which arrived on the spot at 3 -05 P.M. According to this witness, it took about 4 hours and 45 minutes to put out the fire. Actually, the witness left Renigunta station at 9 P.M. According to him, he satisfied himself that the fire was completely put out. To a suggestion that the fire was not completely put out and that the bales were smouldering which were thrown all round, the witness denied that it was so and asserted that both he and the Stationmaster inspected the entire area and only after complete satisfaction that the fire had been extinguished the Stationmaster issued a. certificate to that effect. Another question was put to him:

(2.) IT appears there were fire extinguishers in the railway station. But according to this Court -witness they could not be used because they were exhausted and they could be of no use. The witness further stated that they put out the smoke and he was satisfied himself that there was no cause for further fire.

(3.) THE question we have to consider is whether that finding is correct Learned Advocate -General, who appears for the Railway, relies on the evidence of D.W.5, and C.W.1 and contends that the fire brigade, after fighting the fire on 27th May, 1965, for about 41/2 hours, left the place at 9 P.M., after satisfying themselves that the fire had been extinguished, that on 28th May, 1965 C.W.1, also was satisfied that the smouldering of fire in the charred 150 bales had been completely quenched, that the Railway's duty, as a bail came to an end when the Stationmaster promptly contacted the fire brigade on the 27th and throughout the fire fighting he was present and that in view of the satisfaction of the fire brigade officer and himself he gave a certificate that the fire had been quenched. Learned Advocate -General also strenuously relies on the evidence of C.W.1 as to his satisfaction that as far as possible he had taken steps to quench the fire. He was also satisfied that the fire had been quenched. We are unable to accept these contentions. But for the 28th incident we would have readily agreed with the learned Advocate -General's view of the oral evidence as to the officer's complete satisfaction that the fire had been extinguished. But what happened on the 28th clearly shows unmistakably and uncontrovertibly that the satisfaction of the fire brigade officer and also of the Stationmaster was only surface deep, because it is a fact that they left the fire unquenched with the result that the fire was smouldering from the bowels of the bales, smoke was coming out from a dozen places from the bales and red sparks were fast spreading. If that was what had happened on the 28th, it nullifies the soundness of the satisfaction arrived at by the fire brigade officer and also the Stationmaster as to the quenching of the fire on the 27th completely. The occurrence on the 28th also shows that all care had not been taken to quench the fire. If that had. been taken, there could not have been any cause for the smouldering and the red sparks coming from deep inside the bales on the 28th. The duty of the Railway did not end with merely sending a phone message and getting the fire brigade and the Stationmaster being present, more especially so, as within a few feet another consignment of 300 bales, out of which 200 bales belonged to the plaintiffs,. was lying in the open. On the 28th, when the smoke and fire sparks were observed, no message was sent to the fire brigade and no fire brigade officer or fire quenching engine came. A few buckets were used and C.W.1 satisfied himself that the fire had been extinguished. If, in these circumstances, the learned Judge felt that the asserted satisfaction was no satisfaction and it was probable that the 300 bales caught fire from the sparks still left in the charred stock that burst out of 150 bales, we cannot say that in coming to that conclusion, on an appreciation of the evidence, the learned Judge went wrong. We also feel that, having regard to the sequence of the fires, the probability was that the cause for the fire on the 29th was traceable to the sparks that might have still been smouldering in the 150 burnt bales of cotton.