Arjun Das-Gulab Rai Firm vs E.I. Railway Co.

Foster, J.—The plaintiff was consignee of 135 bags of mustard seed despatched from the Chaparmookh Station on the Assam Bengal Railway to the plaintiff at Dhanbad East Indian Baiiway. The consignment would in the ordinary course pass over the Assam Bengal Railway, the Eastern Bengal Railway and, finally, the East Indian Railway. The plaintiff succeeded in recovering from the East Indian Railway only 120 bags of mustard delivered at Dhanbad Station and he sues for compensation for non-delivery of the remaining bags. The Subordinate Judge who tried the case in the Small Cause Court found that the Risk Note, Forms A and B, was not proved to have been signed by any agent of the consignors or by the consignors themselves and, therefore, the responsibility of the Railway was as indicated in the first Sub-section of Section 72 of the Indian Railways Act. In other words, this decision meant that it was for the Railway to prove that they had exercised in respect of the goods bailed such care as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Had the decision been otherwise the onus would have rested upon the plaintiff to show that the loss fell under one of the exceptions mentioned in the Risk Note. The learned Subordinate Judge''s judgment proceeds as follows: "On the evidence of the defendant''s side I am satisfied that the loss was not due to any want of proper care on the part; of the East Indian Railway Company in carrying the goods or for wilful negligence. It is proved that there was a labour strike throughout the line for two months from the end of February and the Company had no control over the strikers and go the defendant''s case that the loss was due to circumstances beyond their control seems to be correct."

The fault I find with this judgment is that an unjustifiable inference is drawn from the established fact that there was a strike, If the Railway assigns the strike as the cause of the loss and if it is found, as bas been found in this case, that there was a strike it still remains to be shown that the loss occurred on the Railway which was affected by the strike, that the lost occurred during the period of the strike and that the loss was in some specific way the result of the strike. In connection with the last point it is to be remembered that a strike in itself need not inevitably result in loss of goods. If this is true, then it in for the Railway to show what other circumstances, possibly circumstances connected with or arising out of the strike, brought about the loss. It is also necessary in this connection to remember why it is that u/s 80 of the Indian Railways Act the consignee has a right of suit; against the Assam Bengal Railway, to which Railway the goods were delivered by the consignor thereof, as well as a right of suit against the particular Railway'' Administration on whose Railway the loss occurred. The reason is that the Assam Bengal Railway was in the matter of this consignment agent of the East Indian Railway which was finally to deliver the property to the consignee. The principal would ordinarily be liable for the negligence of his agent and the person who suffers the lost would also have the option of suing the agent himself who had been negligent. That is the reason for the provisions of Section 80 of the Indian Railways Act. So, the mere proof that a atrika took place on the Railway of the principal defendant is by no means a justifiable basis for the inference that that Railway was not responsible. In my opinion the judgment is defective, because the issues of fact have not been kept in view and a wrong inference had bean drawn from one fact alone which in itself would be an inadequate defence. Up to this point I have assumed that the Railway had the burden of showing that there was no wilful negligence.

I now coma to consider whether the learned Subordinate Judge has rightly decided that the case falls under the first Sub-section of Section 72 of the Act. The Risk Notes purport to be signed by one Gangadhar on behalf of the firm Lachmi Chand-Golab Chand who ware the consignors. But the members of the Chaparmookh Station Staff deposed that the signature was made by one Nowrang, a partner of that firm and there is no evidence to show what connection Gangadhar had with the consignor firm. From this the learned Subordinate Judge deduces the conclusion that there is no proof that the consignors or their agents signed the Risk Note forms and thereupon he assigned the onus in the case to the defendant. It is urged by the learned Vakil on behalf of the respondents that this decision is unsatisfactory from a legal points of view inasmuch as it does not take notice of the fact than the consignee plaintiff has availed himself of the benefits of the Risk Note. He has taken delivery of 120 bags after paying a reduced freight through his Agent the consignor. It is urged that this act of the plaintiff may be construed as binding him either on the ground that he has ratified the act; of whoever signed the Risk Note, or on the ground that he is estopped by having induced she Railway to accept lower rates and to give up the goods (120 bags) to himself on production of the Risk Note.

On all these grounds I consider the judgment is defective and not in accordance with the law. The question whether the acts of the plaintiff are such as to preclude the plaintiff from pleading that his rights are not limited by the Risk Note depends on detailed facts which are to be got from the evidence. The Court will have to decide these questions and draw the proper inference. If the decision is that the case falls under the first Sub-section of Section 72 of the Indian Railways Act then the matter of wilful negligence will have to be considered in greater detail and with more regard to the legal elements of negligence than have been displayed in the judgment of the learned Subordinate Judge. I consider that the trial has not been in accordance with law, so I set aside the judgment and the decree and direct a re-trial in toto. Costs will abide the result.