SECRETARY OF STATE Vs. GULABCHAND

JUDGEMENT

(1.) 1. The applicant seeks revision of a decree passed by the Court of Small Causes at Amraoti, for payment of Rs. 186-12-0 as damages in a suit instituted by the plaintiff for recovery of Rs. 232-13-3, on account of damages sustained by the plaintiff owing to the defendant's failure to deliver six tins of ghee. It seems that the plaintiff despatched 25 tins of ghee by rail from Beawar on the B. B. and C.I. Ry line to Amraoti on 3rd December 1925. It was noticed at the time of giving delivery at Amraoti that out of 25 tins 5 fins contained cotton seeds, and that they were tampered with. The plaintiff took delivery of only 19 tins, the Railway Company having kept one tin as a sample and having delivered it to the police for an enquiry into the matter. The plaintiff thus claimed damages on account of six tins of ghee not delivered to him. The consignment was booked under Risk Notes A. and B. The tins which were not delivered were sold by auction by the railway company for Rs. 25. On the strength of the following findings, the lower Court decreed the plaintiff's claim to the extent of Rs. 186-12-0.

(2.) THE applicant's learned counsel objects in the first instance to the finding of the lower Court that the five tins in question contained pure ghee when they were consigned at Beawar Station. It seems to me that the said finding is supported by the evidence of the plain f tiff's witness Ramlal, who was examined on commission. He affirms that and the 25 tins were soldered in his presence, and that before soldering he satisfied himself that all of them contained pure ghee, and that the tins were in good condition, when they were sent in a cart to Beawar Station. It is no doubt true that the plaintiff did not examine the consignor, who consigned the goods at Beawar Station, to depose to the good condition of the tins at the time of the consignment But from the evidence of a negative character furnished by D.W. 1, Walayat Hussain, to the effect that there was nothing in the books maintained at the Khandwa Railway Station to show that the goods were received in a damaged condition, it would appear that the tins were in good condition when they reached Khandwa Railway Station. The fact of their being in a good condition at a date subsequent to the date of the consignment, clearly argues the good condition of the tins at the time of the consignment. The evidence of the plaintiff's witness Ramlal stands unrebutted. I think, therefore, that there is sufficient evidence on record to sustain the finding of the lower Court that the five tins in question contained pure ghee at the time they were consigned at Beawar Station.

(3.) NOW the case in question falls under Clause (b) of the proviso. It was the case of a pilferage from five packages forming part of the consignment, which was pointed out to the servants of the Railway Administration by the plaintiff at the time of delivery. In view of the proviso inserted in the new form, the Railway Administration was bound to disclose to the consignor how the consignment was dealt with throughout the; time it was in its possession or control. There is absolutely nothing on record to show that the Railway Company complied with this requirement Had the company disclosed to the consignor how the consignment was dealt with by it and had he been satisfied with the material placed before him, it would not have been necessary for the company to give evidence, before the consignor was called upon to prove misconduct. But its failure to make a disclosure in this respect necessitated the giving of evidence in regard to the manner in which the consignment was dealt with by the company throughout the time it was in its possession or control. But the company neither made the disclosure nor produced any evidence with the result that there was no material before the Court to enable it to deduce any inference in regard to the alleged misconduct of the Railway Administration's servants. It would appear from the proviso in the new form that the burden of proving misconduct shall, in cases falling under Clause (a) or Clause (b), lie upon the consigner,, only if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from the evidence to be adduced by the administration. This condition seems to involve an implication that the burden of proof will not lie on the consignor if an inference of misconduct can be drawn from the evidence to be adduced by the Railway Administration, in cases falling under Clauses (a) and (b) of the proviso. This appears to me to be the meaning of the plain wording of the proviso. Can the defendant rely upon the failure of the Railway Administration to make the requisite disclosure and to give evidence which would have furnished material for drawing an inference in regard to misconduct, as a basis of the contention that the burden of proof lay on the plaintiff, as the Court was for want of any material unable to deduce any inference about misconduct? I think not. It is quite clear from the plain wording of the proviso that the consignor cannot be called upon to prove misconduct if the Railway Administration fails to make the requisite disclosure to the consignor or in the event of the disclosure being made but being not found to be satisfactory, fails to give evidence in regard to the manner in which it dealt with the consignment throughout the time it was in its possession or control. The inevitable result of such a failure on the part of the Railway Administration to make the disclosure and to give evidence would be to fasten on it the liability for the loss, as the Court will have in such a contingency no other alternative than to presume misconduct from the aforesaid failure and to hold the company liable for the loss caused by the misconduct of its servants. The case Secretary of State v. U.P. Glass Works A.I.R. 1926 All. 555 is an authority for the proposition that in a case of non-delivery falling under Clause (a) of the proviso in the new form, the Railway Administration would be liable if it fails to disclose in detail how it has dealt with the consignment, or if the said disclosure or the evidence adduced by it is such as to give rise to an inference of misconduct.