Phulchand Khandelwal and Others vs The Governor General for India Council

Mukharji, J.—This second appeal is by the plaintiffs against a judgment of reversal.

The plaintiffs filed money suit No. 172 of 1914 in the Court of the Subordinate Judge at Dhanbad claiming Rs. 2679-4-0 for non-delivery of two consignments of goods despatched by them, one from Manpur and another from Gaya, the destination in both the cases being; the same, namely, Dhanbad. The defendant in the suit was the Governor-General for India in Council representing the East Indian Railway Administration. The claim with regard to one of the consignments was Rs. 1945, while with regard to the other it was Rs. 734-40, the two making up a total of Rs. 2679-4-0 as already mentioned. So far as the claim for Rs. 734-4-0 was concerned, it was not pressed. The learned Subordinate Judge decreed the suit of the plaintiffs appellants so far as the claim for RS. 1945 was concerned. It was admitted by the defendant that the goods were made over to the Railway Company and that they reached their destination and were kept in the goods-shed at Dhanbad. Non-delivery was also admitted. In appeal before the learned District Judge of Manbhum two points were pressed on behalf of the defendant. The first point pressed before him was that the provisions of Section 80, Civil P.C. were not complied with.'' The other point urged before the first appellate Court was that there was nothing on the record to show that there was negligence on the part of the Railway Company. In this connection the risk-note (Form A) under which the goods were booked was relied on. The learned District Judge while dealing with the first point urged before him observed that the provisions of Section 80, Civil P.C. were not complied with. He also held that the evidence did not conclusively establish that there was negligence on the part of the defendant. In the result the learned District Judge allowed the appeal and dismissed the suit. Hence this second appeal.

On behalf of the appellants it has been contended that the learned first appellate Court decided the appeal without paying due regard to the pleadings of the parties. One of the important features of the plaint is that in para. 6 it is clearly stated that the non-delivery of the goods was due to the negligence and misconduct on the part of the Railway Administration and its employees. In para. 8 of the plaint there is mention of notices u/s 80, Civil P.C. having been duly sent to the defendant claiming compensation for the loss of the goods. It is also stated therein that these notices were duly served. In the written statement filed on behalf of the defendant it is admitted that the goods in question were booked, that they arrived at their destination and that they could not be delivered. Notices u/s 80, Civil P.C. relating to the first consignment was admitted to have been served. As regards the other consignment, the claim in respect of which was not pressed, it was stated in para. 7 of the written statement that no such notice was received. Paragraph 9 of the written statement is important. In this paragraph the defendant expressed his readiness and willingness to pay reasonable compensation for the loss of the consignment. The only thing that was challenged was that the weight of the consigment being only 2 maunds and 20 seers as recorded in the relevant railway receipt, it is not probable that the consignment contained 100 pairs of dhotis "and 22 sheets of long-cloth as alleged by the plaintiffs. The price claimed for the dhotis and long-cloth was also said to be "high and exorbitant."

The learned advocate for the appellants has contended that even upon the evidence adduced by the defendant respondent a clear case of negligence is made out. Mr. S.N. Bose for the respondent has contended that it is not open to the plaintiffs in second appeal to challenge the finding of fact as to whether there was negligence or not. It has, therefore, to be seen whether the finding as to negligence is purely a question of fact. If it is so, then the finding is binding on this Court and the appeal must be dismissed. In the case of Mating Kyaing v. P.L.T.A.R. Chettyar Firth reported in AIR 1929 Rang. 17, a similar preliminary point was raised before Baguley J. in the Rangoon High Court. The learned Judge in dealing with the question observed as follows at p. 472:

There is no such thing as �legal negligence'', and ''negligence'' is, I think, nowhere defined. Whether certain facts constitute negligence is a deduction from those facts, and, although I am bound by the findings of fact by the lower Appellate Court, I am not bound by its deductions from those facts. On this point I would refer to Durga Chowdhrani v. Jewahir Singh Chowdhri 17 I.A. 122 18 Cal. 23 and Ramgopal v. Shamskhaton 19 I.A. 228 20 Cal. 93.) The facts, I have to take from the lower Appellate Court.

In the case of Akhil Chandra Shaha v. I.G.N. & Ry. Co. Ltd. reported in AIR 1916 Cal. 647, a Division Bench of the Calcutta High Court held that if the contention is that there is no evidence of negligence, the question is one of law for the Judge to decide, but the question as to whether the evidence is sufficient to justify the inference of negligence is one of fact. There can be no doubt that the question as to what is purely a question of fact and what is a mixed question of law and fact is not always easy to decide. Their Lordships of the Judicial Committee made the following observations in the case of Nafar Chandra Pal Chowdhury v. Shukur Sheikh reported in AIR 1918 P.C. 92:

Questions of law and of fact are sometimes difficult to disentangle. The proper legal effect of a proved fact is essentially a question of law; so also is the question of admissibility of evidence, and the question of whether any evidence has been offered on one side or the other: but the question whether the fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of faot.

In another Privy Council case reported in 20 Cal. 93 , Ramgopal v. Shamskhaton referred to by Raguley J. above their Lordships of the Privy Council held that the first Court''s decision as to the effect of the evidence must stand final as to facts; but the soundness of conclusions may involve matter of law and may be questioned by a Court of second appeal. A Single Judge of the Madras High Court (Devadoss J.) has to consider the question of gross negligence in the case of S. Ananda Rao and Others Vs. Venkatadri Appa Rao, . It was held that gross negligence is a mixed question of law and tact. In the case with which we are concerned evidence was led as to how the goods were kept in the custody of the Railway Company. Prom this evidence a conclusion has been drawn by the learned District Judge that there was no negligence. In my opinion, the question is not purely one of fact and it can be examined in second appeal to find out whether the conclusion of the learned District Judge exonerating the Railway Company is right.

The evidence adduced on behalf of the-defendant shows that the goods in question were in the charge of the Watch and Ward Department of the Railway at Dhanbad. D.W. 8 one of the Railway employees, stated that the bundle containing the dhotis etc. was missing from the goods-shed although it was under lock and key, and there was no dacoity or theft or fire and the lock was intact. How in such circumstances the bundle could be found missing from the Railway shed is difficult to understand. As held in Akhil Chandra Shah''s case AIR 1916 Cal. 647 referred to above, the burden of proof of absence of negligence is upon the, common carrier, on the theory that the loss or damage to the goods is prima facie proof of negligence. Their Lordships of the Calcutta High Court further held in this case that a common carrier in this country is liable as an insurer, that is, he is responsible for the safety of the goods entrusted to him in all events except when loss or injury arises from act of God or enemies of the State. Such liability for loss or injury in respect of the goods carried may be varied by contract. In the present case there was no defence that according to the terms of the contract the defendant had no liability at all.

The learned District Judge has observed that the defendant respondent could have no liability in this case unless the circumstances conclusively prove that there was negligence. What the learned District Judge really meant is somewhat difficult to appreciate. The goods were admittedly in the custody of the Railway Company and it is also admitted that they were not delivered. No explanation has been offered as to what could have happened to the goods. The only possible theory which could exonerate the Railway Company is the theory that the goods were spirited away. Such a theory is clearly untenable in law as well as in fact. The only conclusion at which one can or should arrive in this case is that the goods were lost due to negligence on the part of the Railway. This is the least that can be said, for it is also possible that in these days of scarcity of cloth the bale in question was removed by some of the Railway employees themselves. In my opinion, the defendant is clearly liable to pay compensation in this case. As to the amount of compensation it was not the case of the respondent before the learned District Judge that the amount awarded by the learned Subordinate Judge is excessive. As for the notice u/s 80, Civil P.C., the learned Advocate for the respondent had nothing to urge. The written statement, as pointed out above, took exception on the question of notice only so far as the other consignment was concerned.

In the result, the appeal is allowed and the judgment and decree of the learned District Judge are set aside. In the circumstances of the case the parties will bear their costs of this Court.

Manohar Lall J.

I agree.