MAHADEO LAL PRABHU DEYAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal by the plaintiffs who are in this case a firm, Mahadeo Lal Prabhu Deyal. The suit was for recovery of damages for non-delivery of 31 bales of piece-goods out of 60 bales which had been consigned by one Messrs. Bombay Agents Limited to the G. I. P. Railway at Wadibunder station on the 1st of December, 1947, for carriage to Baidyanathdham Railway station on the E. I. Railway under Railway Receipt No. 7213/57 and Invoice No. 30 of the same date. It is not denied that at Wadibunder Railway station the consignment was loaded in Wagon No. 9643 which reached Moghulsarai on the 9th of December, 1947 at 11-55 a.m. by 192 Down Goods Train. But as from Moghulsarai it was to be carried by another train, which had not yet been constituted, the wagon had to be detained there for about three days until the 12th of December 1947, when again at 0-40 p.m. it started for its forward journey by 214 Down Goods Train and eventually reached Baidyanathdham on the 21st of December 1947. And there on the same day when the railway receipt was presented for delivery, what the plaintiff, who was the consignee thereof, got from the Railway was only 29 bales out of 60 bales and as to the remaining 31 bales they were informed that they were missing. Accordingly, there was some correspondence between the parties over the matter, but in spite of all efforts, those 31 bales were never delivered to the plaintiff. Hence the suit which was filed on the 20th of November, 1948, after necessary notice on the 31st August, 1948, under Section 80 of the Code of Civil Procedure. The trial court has found that this notice under Section 80 of the Code of Civil Procedure was served validly as contemplated under law and this finding has not been challenged in appeal. Therefore, the finding is not (?) conclusive. But what the trial Court held against the plaintiff is that as the consignment was covered under Risk Note Z which, for the purpose of this case, was the same as Risk Note B, the onus was on the plaintiff to prove that the non-delivery was due to negligence or misconduct on the part of the Railway administration or any of its servants and as the same had not been discharged by the plaintiff, the suit, was bound to fail. Further, in giving this finding it also found that so far as the obligation of disclosure on the part of the Railway was concerned which lay upon them under the terms of the proviso to that risk note, that had been fully discharged and their evidence conclusively established that it was a case of running train theft, & therefore, there was no liability on the part of the Railway for the non-delivery of the remaining 31 bales, of piece-goods as claimed by the plaintiff. Thus at the trial the claim was- mainly disposed of on the consideration of the contractual liability that arose between the parties on the terms of Risk Note Z. And in appeal also the controversy has centred around mostly on that very point. Now, so far as the scope, nature and extent of liability under Risk Note Z is concerned, that has been elaborately explained in the well-known decision of their Lordships of the Privy Council in Surat C. S. and W. Mills v. Secretary of State, AIR 1937 PC 152, but before I go into the question as to how far the rule of law laid down, therein applies here, it may be useful to deal first with the general scheme of liability in the case of carriage by Railways. Ordinarily, when there is no other contract between the parties the responsibility of the Railway administration for the loss, destruction or deterioration of the goods delivered to them for carriage is that of a simple bailee as provided in Section 72 of the Indian Railways Act. But if there is a contract otherwise as provided in law, the position is obviously different. At the relevant time, when the aforesaid 60 bales of piece-goods were consigned to the Railway for carriage, there was a provision made in Sub-section (2) of Section 72 of the Indian Railways Act which read as follows:

(2.) In the present case it is not denied that the Railway did make certain disclosures and did give some evidence also in proof of that disclosures. Further, it is also denied that the plaintiff thereafter did not make any prayer for any further disclosure on the allegation that what had been disclosed by the Railway was not sufficient. Therefore, here there can be no question of drawing any adverse inference against the Railway on the ground that though a prayer for further disclosure was made, but it was not complied with. That being so, the simple question we are left with is whether on the facts disclosed by the Railway can it be said that the initial onus which lay on them under the proviso to the Risk Note Z has been discharged as contemplated in law. If the answer is in the negative, then on that ground alone they will fail to take any advantage of the risk note, and their liability in that case will be assessed on the footing of simple bailee. But if the answer is in the affirmative, then the plaintiff, in view of the terms of the contract as stipulated in the risk note cannot succeed unless they show that the non-delivery in this case was due to the negligence or misconduct on the part of the Railway administration or any of its servants either exclusively on the evidence given by the Railway in support of their disclosure, or failing that, on the direct evidence, if any, which they have given in support of their case that the non-delivery was due to the negligence or misconduct on the part of the Railway administration or any of its servants. Here, however, there is no doubt that so far as the direct evidence given by the plaintiff is concerned, that is more or less of a formal character and, as a matter of fact, no reliance has been placed on that evidence to establish any negligence or misconduct on the part of the Railway Administration or any of its servants. Therefore, here the liability rests on the consideration of the other two questions alone.

(3.) As to the first question, namely, whether the disclosure made by the Railway is sufficient in law to discharge the burden that lay on them under the proviso to Risk Note Z, the main argument advanced by Mr. G. P. Das appearing for the plaintiff is that despite the fact that no prayer for further disclosure was made at the trial on behalf of the plaintiff, the onus was still on the Railway to disclose fully as to how the consignment was dealt with while it was in their possession, and as they have failed to do it, they cannot claim that they have done what was required of them under the proviso. In other words, his contention is that in this case the Railway cannot be protected by the Risk Note. That means, according to him, the liability in this case has to be assessed against the Railway on the footing of their being; a simple bailee. In answer thereto, the contention advanced by Mr. P. K. Bose appearing for the Railway is that if the plaintiff were of opinion that what had been disclosed by the Railway was not sufficient, it was for them to say so at the trial by asking for further disclosure and as they did not do so, it is not open to them now in appeal to make any grievance fit the fact that because the disclosure made by the Railway at the trial was not sufficient, therefore, the onus as laid upon them under the proviso to Risk Note Z has not been discharged. Mr. Bose in support of this contention has laid reliance on the decisions in Choa Mahaton v. Union of India, 1957 Pat LR 42: (AIR 1957 Pat 475) and Union of India v. Jetha Bhai, AIR 1953 Pat 279. In my opinion, none of these two authorities lend any support to his contention. The case in 1957 Pat LR 42: (AIR 1957 Pat 475) is one relating to deterioration of a consignment and not to any non-delivery of it either as a whole or in part and it is not challeged, and I think cannot be challenged, that so far as the proviso referred to above is concerned, that comes into play only in a case involving either non-delivery or pilfering as is laid down therein and not in the case of loss, destruction, deterioration or damage as contemplated under Section 72 of the Indian Railways Act. Similarly, the case in AIR 1953 Pat 279 is completely silent on this point. Rather, what came to be considered there was whether the disclosure made by the Railway was sufficient to discharge the onus laid upon them under the proviso. So, that case instead of helping Mr. Bose is in a sense against him. Further, on principle also, the proposition as is laid dawn by Mr. Bose, cannot be supported and this is evident from the reasoning given in Governor-General in Council v. Ranglal Nandlal, AIR 1948 Pat 237 which has been relied upon by Mr. G. P. Das in support of his contention. That case is on all fours applicable to the facts of the present case and it clearly lays down that even in a case where no further disclosure is demanded by the consignor on the ground that what has been already disclosed by it is not sufficient, it is open to him to submit and for the court to determine that on the facts disclosed the onus as laid upon the Railway under the proviso to Risk Note Z has not been discharged. And rightly, otherwise, the valuable right that is secured in favour of the consignor under the proviso to Risk Note Z or B will in many cases be reduced to a farce or nothing. It is true that in many cases where the consignor knows as to how the consignment has been dealt with by the Railway in the course of its transit or while it was in their control and possession in those cases, it will be possible for him to ask for further disclosure if he thinks that the disclosure already made is not sufficient, but there may be other type of eases also where the consignor may not know at all as to how the consignment has been dealt with in the course of its transit or when the same was in the control and possession of the Railway and in those cases obviously there will be nothing for the consignor to say as to what should be further disclosed. But, for that reason, the obligation of disclosure kid upon the Railway under the proviso to Risk Note Z cannot be said to have been discharged simply because no demand for further disclosure has been made even though what has been disclosed is, on the very face of it, nothing but an apology for disclosure. Further, the question as to whether the obligation under a contract has been discharged is in ultimate analysis, a mixed question of fact and law, and therefore, on the facts stated, it is for the court to say whether the same has been discharged. This is obvious from what their Lordships of the Privy Council have stated in AIR 1937 PC 152 in the following passage: