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Judgment
P.D. Mulye, J.—This appeal filed by the Appellant-Plaintiff is directed against the judgment and decree dated 28.7.1977 passed by the Third Addl. District Judge, Ujjain, in C.S. No. 2-B of 1976 whereby the Plaintiffs suit for recovery of Rs. 36,703/- inclusive of interest has been dismissed.
The facts giving rise to this appeal, about which there is not much dispute, may be stated, in brief, thus : By Invoice No. 120, Railway Receipt No. 029814, dated 20/22.8.1972 (Exh. P-28) the Plaintiff had booked one wagon of liquid caustic soda from Amlai, which consignment, booked at the railway risk, was to be delivered at Nagda. But the said consignment was not delivered to the Plaintiff within a reasonable time. The Plaintiff, therefore, entered into correspondence with the Respondents who by their letter dated 26.7.1973 informed the Plaintiff that as a result of an accident to the Chetak special goods train by which the said consignment was being carried on 30.8.1972 near the Diwanganj Railway Station, the said consignment was lost and the liquid caustic soda was washed away on the ground. They, therefore, denied their liability to accept the claim of the Plaintiff for Rs. 29,017.39 p. inclusive of its price, surcharge, excise duty, sales tax, railway freight, siding charges and R.R.T. at 20 per cent. The Plaintiff, therefore, after giving notice u/s 80 of the Civil Procedure Code, filed the present suit for recovery of Rs. 36,703.00 inclusive of Rs. 7,685.61 by way of interest.
The Defendant-Respondents in their written statement while not denying the material facts disowned their liability mainly on the ground that on account of the accident to the train which was an unforeseen event they are not liable to pay the Plaintiffs claim.
The learned trial court framed the following issues:
(1-9) X X X X
Thus, the learned trial court found that the Plaintiff is entitled to claim damages to the tune of Rs. 29,017.39 which he has been able to prove. He also held that the Plaintiff is entitled to claim interest at the rate of 6 per cent per annum on this amount according to the provisions of Section 61 of the Sale of Goods Act though the Plaintiff has failed to prove market rate of 1 per cent per month. However, he dismissed the Plaintiffs suit on the ground that the train accident occurred on account of unforeseen event and thus dismissed the Plaintiffs suit by taking resort to the provisions of Section 73(i) of the Indian Railways Act. Hence this appeal.
The main question raised and argued in this appeal has been whether the Defendants have succeeded in proving that they cannot be held liable in view of the provisions of Section 73(i) of the Indian Railways Act.
The Learned Counsel for the Plaintiff-Appellant contended that in fact the burden of proving issue No. 5 referred to above was on the Defendant and not on the Plaintiff. The Learned Counsel for the Respondent did not dispute this position. The Learned Counsel for the Plaintiff-Appellant, therefore, contended that the Defendants in their written statement have not given any specific reasons for the derailment of the goods train to which the caustic soda wagon was attached. He, therefore, submitted that in absence of any specific pleading to that effect, the learned trial court was not justified in dismissing the Plaintiffs claim. He further submitted that the learned trial court has not carefully gone through the provisions of Section 73 of the Indian Railways Act and has thus committed an error in relying on the Defendant''s evidence which does not at all prove that it had used reasonable foresight and care in the carriage of the animals or goods as per proviso to Section 73 of the said Act.
The Defendant-Respondents in support of this principle issue No. 5 have examined DW 1 Lalit Dube, Assistant Station Master, Diwanganj, DW 2, Ayodhya Prasad, Guard of the goods train, DW 3 M.G. Williams, driver of the said goods train, DW 4 Daulat Singh, the Train Examiner at Jhansi, DW 5 Shankar Rao Barde, Assistant Mechanical Engineer who was a Member of the Enquiry Committee to find o it the cause of the accident, DW 6 Kunwarbihari Mathur, Assistant Engineer, at Jhansi and PW 7 Bacchu Singh, Head Train Examiner at Bhopal.
DW 1 Lalji Dube, in para 4 of his statement has categorically admitted that he did not know how the accident occurred. DW 2 in para 7 of the cross-examination has also admitted that he was unable to state the reasons for such accident. Similarly DW 3 Williams, the driver has also nowhere stated about the cause of the accident. DW 4 Daulat Singh, who on 30.8.1972 was posted as train examiner at Jhansi has deposed that he reached the place of accident after the accident had occurred. Therefore, he has also not been able to state about the cause of the accident. DW 5 Shankar Barde in his statement para 2 has stated that the cause of the accident was that the upper plate of the spring of the tenth wagon had broken and his report is Exh. D-4. Similarly DW 6 Kunwarbihari also reached the place of accident subsequently as also DW 7 Bacchu Singh.
The Learned Counsel for the Plaintiff-Appellant after taking us through the evidence of these witnesses submitted that from their evidence it has not been satisfactorily established that the accident occurred due to some unforeseen risk. He, therefore, submitted that the mere fact that the accident occurred because of the breaking of the upper plate of the spring of the tenth wagon, as deposed to by DW 5 Shankar Barde, would not absolve the Defendants from their liability as they have not given any evidence to prove that what reasonable foresight and care they had taken earlier to check the condition of the goods train. He therefore, submitted that in absence of any such evidence the learned trial court has committed an error in dismissing the Plaintiffs suit on that ground.
The Learned Counsel for the Respondents contended that as the upper plate of the spring of the tenth wagon was broken, it would not have been possible before hand to apprehend that the same would be broken while the train was in motion though he submitted that the goods train is checked at every junction. In the present the Defendants have not led any evidence to prove when the said goods train was last checked or what care and caution or foresight was taken by them before the occurrence of the said accident. Therefore, in absence of any such material evidence it cannot be said that the Defendants have discharged their burden by proving convincingly that the accident occurred due to some unforeseen risk and not on account of their negligence. The Learned Counsel for the Respondents was unable to explain as to why the Train Examiner who had last examined the said goods train before the accident occurred was not examined in this case so that he would have been the best person to depose about the care and caution taken by the Respondents. But all that material evidence is wanting.
It may also be noted that the Learned Counsel for the Respondents did not challenge the finding of the learned trial court regarding the claim for damages and also the claim of interest as has been found by the learned trial court. Therefore, the short question is whether on the existing evidence adduced by the Respondents it has been satisfactorily proved that the Respondents are absolved from their liability. After hearing the Learned Counsel and after going through the record we have reached the conclusion that the appeal deserves to be allowed for reasons stated hereinafter.
Section 73 of the Indian Railways Act is as follows:
General responsibility of the railway administration as a carrier of animals and goods.--Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery, in transit of animals or goods delivered-to the administration to be carried by railway, arising from any cause except the following, namely:
(a) act of God;
(b) act of war;
(c) act of public enemies;
(d) arrest, restraint or seizure under legal process;
(e) orders or restrictions imposed by the Central Government or a State Government or by any officer or authority subordinate to the Central Government or a State Government authorised in this behalf;
(f) act or omission or negligence of the consignor or the consignee or the agent or servant of the consignor or the consignee;
(g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods;
(h) latent defects;
(i) fire, explosion or any unforeseen risk.
Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid; causes, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the railway administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods.
According to the proviso added to this section, the Respondents cannot be allowed to shirk their responsibility unless it is also proved that the railway administration has used reasonable foresight and care in the carriage of the animals or goods. In the present case, as pointed out above, the Respondents have not examined any witness regarding the care taken by them before the occurrence of the said accident. It is not the case of the Respondents that any such evidence was not available or could not be produced as they must be having the record of the Train Examiner or other Railway officials who must have examined the goods train before the accident occurred. The mere fact that because of the breaking of the upper plate of the spring of the tenth wagon of the said goods train as deposed to by DW 5 Shankar Barde in our opinion, would not absolve the Respondents of their liability in absence of any other evidence on record to prove as to what reasonable foresight and care was taken by the Respondents before the accident occurred. We, therefore, are unable to uphold the finding of the learned trial court on issue No. 5 as he has failed to consider the entire provisions of Section 73 of the said Act.
In the result this appeal succeeds partly and is allowed with costs. The judgment and decree passed by the trial court dismissing the Plaintiffs claim are set aside and the Plaintiffs claim for Rs. 29,017.39 p. plus interest at the rate of 6 per cent per annum from the date of the suit i.e. 21.1.75 till realisation is decreed with costs throughout. Counsel''s fee according to schedule.