NANKU RAM Vs. INDIAN MIDLAND RAILWAY COMPANY

JUDGEMENT

(1.) THE facts which gave rise to the suit were these. THE plaintiff's agent consigned to the defendant company 30 bales of cotton for conveyance to Bakhtiarpur, a station on the East Indian Railway. Twenty-eight of these bales were loaded in a wagon on the 3 January 1896, and the wagon was attached to a mixed train which left the Kirwi station on the same day a little after 4 P.M. After the train had been in motion about 40 minutes, it was discovered that the wagon containing the cotton bales was on fire. It is admitted that all the cotton loaded in that wagon was destroyed. In the present suit the plaintiff claims damages for the loss sustained by him in consequence of the destruction of the cotton. THE defendant Company did not dispute the amount claimed, but they claimed exemption from liability on three grounds: (1) that the plaintiff at the time of despatch elected to pay the owner's risk rate, (2) that the fire was the result of spontaneous combustion, and (3) that the fire was not the result of any negligence on the part of the company or its servants. On the first point the Court of First Instance found against the defendant company, and that finding was never questioned. It must therefore be taken the goods--so far as they were to be conveyed over the line of the defendant company--were not at the risk of the owner. THE Courts below have, however, dismissed the claim, holding that the defendant company was not liable. THE Lower Appellate Court was of opinion that it was for the plaintiff to prove that the defendant company was guilty of negligence in respect of the bales of cotton consigned to it. THE learned Judge says: "THE party damnified has no cause of action unless he alleges negligence: such an allegation must not be a general sweeping one, but must be such as to give notice to the defendants of the case they will have to meet." THE learned Judge further adds: "Clearly a plaintiff must affirm some specific act of negligence, or suggest some such act: thus it was open to the plaintiff appellant in the present case to assert in his plaint that lie believed the fire to have been caused either by sparks from the engine, or to have been caused by some fire left carelessly in the wagon before the bales were loaded into it, or by some person smoking while engaged in loading." Being of that opinion the learned Judge held that the plaintiff had not proved that the defendant company were guilty of any act of negligence, and affirmed the decree dismissing the suit. We are unable to agree with the view of the law taken by the learned Judge. By Section 72 of Act No. IX of 1890 the responsibility of a railway administration for the loss or destruction of goods delivered to it to be carried by railway is, subject to the other provision of the Act, that of a bailee under Secs.151, 152 and 161 of the Indian Contract Act. Section 76 of the Act provides that in any suit against a railway administration for compensation for loss or destruction of goods delivered to it for carriage, it shall not be necessary for the plaintiff to prove how the loss or destruction was caused. THE passages quoted from the learned Judge's judgment show that he overlooked the important provisions of Section 76, which cast, not on the plaintiff, but on the railway company, the burden of establishing the circumstances which, under Section 151 and 152 of the Indian Contract Act, would exonerate the bailee from liability. It was sufficient for the plaintiff to prove delivery of the goods to the railway company and the fact that the goods were destroyed whilst in the custody of the company. Those facts being admitted in this case, it was for the company to establish the circumstances which would entitle them to be relieved from liability. This the defendant company in this case failed to do. THE Court of First Instance says in its judgment that the fire must have been the result of spontaneous combustion. THEre is not a particle of evidence to show that this was so, and no such conclusion can be drawn from the evidence on the record. We may accept the evidence that the fire did not originate from a spark from the engine; but that alone does not lead to the conclusion that there was no other cause for the bales catching fire except the theory of spontaneous combustion. It appears from the note which the locomotive foreman recorded on the driver's report of the 25th January 1896, that, in his opinion, the wagon was on fire before it left Kirwi station. We may mention that the locomotive foreman happened to be travelling by the train to which the wagon was attached. If this was so, it was for the company to prove that the possibilities indicated by the learned Judge in his judgment as to the origin of the fire, namely, that of some fire having been left carelessly in the wagon before the bales were loaded into it, or of some person smoking whilst loading, did not exist, or that precautions were taken to prevent the originating of the fire in any of the ways indicated. It is true that the learned Judge in his judgment says that "upon the evidence on the record the lower Court's finding that the fire was due to spontaneous combustion and that the company's servants had not been guilty of negligence, was sound and proper." We may observe that this opinion as to the absence of negligence on the part of the defendant company and their servants is based on the erroneous view which the learned Judge entertained as to the burden of proof. We may further observe that the finding, to which we have referred above, is based on no evidence whatever on the record. THE learned advocate for the appellant asked our leave to contend that there was no evidence whatever to justify the finding as to the fire being due to spontaneous combustion or as to the absence of negligence on the part of the defendants. We granted him the leave asked for, and we have gone carefully through the evidence. After having heard that evidence we can unhesitatingly say that there is no evidence to support the conclusion of the Courts below. THE plaintiff was therefore entitled to a decree for the amount claimed, the correctness of which was not disputed. We may mention that the railway company was not represented in the appeal before us, and that consequently the appeal has been heard ex parte. THE result is, that we allow the appeal, and, setting aside the decrees of the Courts below, decree the claim as laid in the plaint with costs in all Courts and future interest. We direct that the future interest hereby awarded be calculated at the rate of 6 per cent, per annum from the date of suit till the date of realization.