BINDRABAN Vs. GIPRYCO

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for damages against a railway company. A bale consisting of 50 thans of markin was consigned to the G.I.P. Railway Company at Bombay for delivery to the plaintiff at Farrukhabad under a Risk Note form B. The bale however was not delivered. In spite of registered notices the defendants failed to deliver the bale or pay its price. The pleas raised on behalf of the railway company were numerous, but all of them were apparently not pressed. Two main defences were that there was no wilful neglect and that in any case the loss was due to a robbery from a running train. The seals of the wagon in which the bale had been placed were found to be intact at Nasik, but were found broken at Manmad. The contents of the wagon however were checked not at Manmad but at some subsequent station, when it was discovered that one bale was missing.

(2.) The Court of first instance found that between Nasik and Manmad there are two high banks where the speed of the train has to be slowed down; that from 1918 there had been frequent running train thefts between Nasik and Manmad and that in spite of this fact no measures were taken by the railway company to make the doors of wagons properly fastened and made more secure, and that the mere putting on of sealing wax without any looks on the doors was in no way effective in securing them. On these facts it recorded a finding that the railway administration had for a considerable period knowingly failed to see that these fastenings were made more secure so that the goods might be carried over the line With reasonable security. Relying on the case of B. & N.W. Ry. Co. V/s. Haji Mutsaddi (1910) 7 ALJ 833 it held that wilful neglect had been established. On appeal the learned District Judge has not controverted any of the findings of the first Court, but has agreed that there had been frequent running train thefts between Nasik and Manmad, and that in spite of this, the railway company had failed to take any measures to make the door of wagons secure and had continued to fasten them by seals and not by locks, Referring to the case relied upon by the first Court he remarked: If I had only this case and this opinion before me I should be bound to dismiss this appeal and uphold the decree of the subordinate Court, but he thought that rule had to some extent been departed from in a later case, viz., that of the E.I. Ry. Co. V/s. Nathmal Behari Lal AIR 1917 All 338. The learned Judge thought that this later ruling applied to the case and that inasmuch as the railway company had got the wagon duly sealed in such a way that the railway servants would be able to see whether or not the wagon was entered in the course of transit, there was no wilful neglect, and thought that the railway company probably did not lock their wagons because they found it impracticable. He apparently overlooked that a measure i.e. sealing intended to discover subsequently whether a theft has been committed is not the same thing as a precaution taken to prevent theft. He accordingly dismissed the suit.

(3.) When the matter came up in appeal this Bench, in view of certain previous conflict of opinion, referred the question as to whether there had been a robbery from a running train within the meaning of the Risk Note, to a Full Bench. The opinion of the majority of the Full Bench destroys the defence.