GOVERNOR-GENERAL IN COUNCIL Vs. JAMUNA DAS AGARWALA

JUDGEMENT

(1.) This is a defendants second appeal from the concurrent decisions of the Courts below decreeing the plaintiff's suit for damages for wilful neglect of the servants of the Railway Administration concerned in respect of a portion of a consignment of cocoanut oil, as a result of which the plaintiff is said to have suffered a losa of Rs. 8,796-11-6 as price of cocoanut oil lost besides RS. 701-80 claimed as price of 201 tins and as interest on the principal amount of damages the claim for the latter amount having been dismissed by the Courts below.

(2.) In this case the facts admitted or found are as follows. On 20 February 1944,651 tins of cocoanut oil, weighing 809 maunds and 5 seers, were despatched from Cochin, Out Agency (on the South India Railway) to Jharia (a station on the East Indian Railway). The consignment was leaded in one wagon. The consignment traversed four railway systems, namely, S.I. Railway, N. & S.M. Railway B.N. Railway and R.I. Railway, covering a distance of about 1,200 milea. The goods were booked under Risk Notes A & B, that is to say, at the owner's risk, in consideration of the facts that a reduced rate of freight was charged by the Railway Administration. Up to Jalarpat station on the S.I. Railway, the seals and riverta were found to be intact. The consignment was then made over to the M. & S. Railway which carried the goods up to Waltair where also the seals and riverts were found intact, but it was noted that oil was leaking; when the wagon reached Kharagpur Railway Station it was checked and found that there were 650 tins only, and the seals were broken. Nothing is said about the contents of the tins. The wagon was received at Asansol on 28 March 1944 and it was despatched from there on 29 March 1944. It reached Jharia on 30 March 1944, and open delivery was taken on 1 April 1944. It was then discovered that 64 tins were entirely empty and 146 "almost empty" with the result that there was shortage of 80 maunds and odd seers, and damages have been claimed in respect thereof at Rs. 47 per maund. The claim was thus made for Rs. 3,796 11-6 price of 201 tins and interest on those sums of money. Pour separate written statements were filed on behalf of the four Railway Administrations which were represented by Governor-General in Council, the contentions raised in all of them are to the same effect that the consignment consisted of second-hand tins which were not in a sound condition, not having been properly soldered and crate packed that the oil leaked out presumably, due to the weak canisters giving way to pressure, that there was no misconduct on the part of the Railway Administrations concerned or of their employees, finally that the consignment having been despatched under Risk notes A and B, no liability attached to the Railway Administrations concerned. Other pleas were also raised in bar of the suit, but it is no more necessary to notice them, as those contentions have been decided in favour of the plaintiff and have not been repeated in this Court.

(3.) The learned Subordinate Judge, who tried the suit in the first instance, came to the conclusion that the onus lay on the plaintiff to make out his case of misconduct, and that in the circumstance disclosed in the evidence, the inference was irresistible that the loss to the plaintiff was caused by wilful neglect on the part of the Railway Administration in so far as there was no "caution label" attached to the Railway wagon containing the goods with the result that there was rough shunting causing the tin canisters to be broken and damaged. The trial Court also held that the fact that the tins bad not been loaded in a proper way inasmuch as there was no straw or grass underneath the tins when placed in the wagon, would lead to the inference that there was negligence on the part of the employees of the Railway Administration which accepted the goods for carrying. In that view of the matter, the Court granted the plaintiff a decree for the sum of RS. 3,796/11/6, price of the quantity of oil lost to the plaintiff but disallowed the claim for the price of the 301 tins or for the interest on the ground that the plaintiff had taken away those tins except for one which was missing and also because there was no contract for payment of interest.