LAWS(PAT)-1957-1-25

CHOA MAHTON Vs. UNION OF INDIA IN COUNCIL

Decided On January 07, 1957
CHOA MAHTON Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) In this case the plaintiff, Choa Mahton, brought the suit on the allegation that on the 30th of October, 1946, a consignment of 69 bags of onions was despatched from Digha Ghat for being taken to Bhagalpur. The wagon in which the consignment was despatched happened to reach Patna on the same date, but owing to negligence on the part of the Railway Administration the wagon was delayed at Patna from the 30th October, 1946, to the 11th November, 1946. On the 12th November, 1946, the consignment reached Mikamah and on the 19th November, 1946, the consignment reached Bhagalpur. On the 21st November, 1946, the consignee refused to take delivery on the ground that the entire quantity of onions became decomposed and unfit for human consumption. The defendant Railway Administration thereafter buried the onions underground. The claim of the plaintiff is based on the allegation that the delay in transit was due to the misconduct of the Railway Administration. The main ground of defence was that there was no misconduct or negligence on the part of the Railway Administration and it was asserted that there was communal disturbance in Bihar and railway traffic was delayed for that reason. Both the lower courts accepted the case of the defendant and held that there was no misconduct or negligence on the part of the Railway Administration and, therefore, dismissed the suit.

(2.) In support of this appeal the argument is put forward that the duty of disclosure lay upon the Railway Administration as to how the consignment was dealt with throughout the relevant period. It wag argued that this duty has not been discharged by the defendant and a presumption must be drawn that there was negligence and misconduct on the defendant's part. It was contended that for the period from the 12th of November, 1946, to the 19th of November, 1946, there was no explanation offered by the Railway authorities and the register of movement of wagons has not been produced by the defendant. It was conceded on behalf of the appellant that there is a finding of the lower Courts with regard to the delay at Patna Junction that is, for the period between the 30th October, 1946, to the 11th November, 1946. The finding of the lower courts is that there was communal disturbance and there was delay of Railway traffic for this reason. Counsel for the appellant did not challenge the finding of the lower courts that there was sufficient explanation offered by the defendant with regard, to the delay which took place at Patna Junction. But the point taken was that there was no explanation with regard to the delay which occurred at Mokamah. On behalf of the respondent, Mr. Bose said that this was a case of deterioration and not of non-delivery and, therefore, there was no duty upon the Railway Administration to disclose how the consignment was dealt with during the relevant period. The relevant portion of Risk Note form B is in the following terms:--

(3.) Even assuming in favour of the appellant that this is a case of non-delivery and not merely of deterioration and there was a duty cast upon the Railway Administration to make a disclosure, we are satisfied that in the circumstances of this case the duty has been discharged by the defendant. We have already said that for the period from the 30th October, 1946, to the 11th November, 1946, the Railway Administration explained that there was communal disturbance and, therefore, there was delay in despatching the consignment from Patna. With regard to the delay at Mokamah Ghat from the 12th November 1946, to the 19th November, 1946 documentary and oral evidence was produced on behalf of the Railway Administration. The Railway Administration examined witnesses like D. W's 3, 4, 5 and 6, to prove how the consignment was dealt with at Mokamah. D. W. 5 proved the entries, Exhibits E(3) and E(4), entries in the Number Taker's book, to show when the wagon reached Mokamah station and when the wagon was despatched from Mokamah station. The evidence on this point has been accepted by the lower appellate court and there is a finding of the lower appellate court that there is no rnisconduct on the part of the Railway Administration with regard to the delay which occurred either at Patna Junction or at Mokamah. It was argued on behalf of the appellant that the Railway Administration should have produced the register of movement of wagons in order to support their case. But it does not appear that the appellant made a request to the trial court or to the lower appellate court calling upon the Railway Administration to produce this register. It is, therefore, not open to the appellant to make a grievance of this in the High Court at the stage of the second appeal. The procedure in a case of this description has been laid down by the Judicial Committee in Surat Cotton Spinning and Weaving Mills. Ltd, v. Secretary of State AIR 1937 P. C. 152 (D). In the course of the judgment in that case Lord Thankerton stated on pages 153-154:--