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Judgment
Chandra Reddy, J.—This appeal is directed, against a judgment of the Subordinate Judge of Vijayawada confirming that of the District Munsif of Vijayawada dismissing the Appellant''s suit for Rs. 1,870-1-3.
The material facts of the case may be narrated: The ''Plaintiff is a firm of merchants Mealing in cloth at Vijayawada. Sometime in October, 1&49-, some purchases of coloured voil c''lotth were made on their behalf by certain commission agents of Bombay, Messrs. P. Narasimharao and M. Gopalakrishna Rao and dispatched on 1st November, 1949. These bales of cloth were put in the goods-train which left was Bandar railway station on 5th November, 19-19. Tho commission agents sent the railway pass and the hundi for ihe amount of the hill through the Branch of the Indian Bank at Vija-yo.vada. 4 ho Plaintiff received the railway re ovipt on tifh Nov-em/tbcr, 1949 and honoured the hundi. As (lie geieKls were'' not received at the Vijayawada railway station upto the 30th of November, 1049 the Plaintiff wrote a letter to the second Defendant, the General Manager, the Nizam''s State Railway, to tell him that the gooeis had not yet anived.
To this a reply was sent that the matter was under investigation. Thereupon correspondence ensued between the parties but the plain. till: could not get any satisfactory reply as to what had happened to the goods. Therefore, he issued notices u/s 77 of the Railways Act and Section 90 of the CPC to the General Manager, G. I. P. Railway, as representing the Union of India, and to the General Manager, the Nizam''s Slate Rail way, as representing the Rajapramukh of the Hyderabad State. As the claim was not satisfied, the present suit was filed.
The suit was contested by both the Defendants inter alia- on the ground bud the Defendants were not liable for the loss as the consign-ment was covered by risks A and B winch preheeled the railway from ail liability tor any loss except on proof that such loss was due to the misconduct of the railway servants. There was no misconduct or gross negligence of llu: railway staff, and the loss of the suit consignment was due to a theft in the running train on the G. I. P. Railway. After investigation the police reported that the case was undetectable.
During the trial, the Defendants let in pvidence to prove that the loss of the goods was due to a theft committed by a gang of 40 or 50 persons who were armed with, deadly weapons while the train was halting at the outer signal of Domboville Station after midnight of the'' 5th November, 1949. What appears from the evidence of these witnesses is this: When the train was about to reach Domboville Station, it was found by the driver that the home signal was not given for the passing of the train. Thereupon Ihe train came to a halt. Immediately about 40 or 50 robbers emerged from an adjoining jungle, opened wagon No. 3460 and removed some of the packages in it including the suit consignment.
As soon as the train stopped, the driver gave whistle to indicate that the train had to be stopped for want of a line clear signal. Though the Cabin Assistant Station Master had given the signal even prior to that, the signal arm had not bent down. Therefore a memo, was forwarded through porters to the engine driver intimating that the train might pass. The reason for the signal not wovking was that it was tied up by the culprits. When the goods were being removed from the wagon by the thieves, the guard of the train and the watch and ward man travelling in the train examined as D. Ws. 2, and 6 respectively, noticed it.
The driver examined as D. W. 4 saw some men running away when he looked back alter moving the train. Immediately the train proceeded to Kalyan. As soon as it arrived at Kal-yan Station a report of the incident was made to the police officers there. The wagon was checked and it was noticed that some articles were missing there from. It was also found that the doors of the wagon were open on one side and the seals which put up to that door at Wadi-Ban-dar were broken. The police, after investigation ultimately sent a report on 5tl to the effect that the crime was On this evidence the trial Court cam elusion that the Railway Adminisi. servants thereof were not guilty of duct and therefore thv. ease was co-, risk-notes, marked as Exhibits B this view of the matter, he dismisses (5) On appeal the Subordinate curred in the opinion of the trial. Conn firmed the decree. The piaintili, who 1950, undetectable. to the conation or the my ensconced by the B-4. In the suit 1 adge conmd con-dissatisied with this decision has preferred this second appeal.
In support of this appeal, two points are urged by Mr. Venkatarama bastri: (1) The evidence on record is not sufficient to establish tha''; the railway was not guilty of misconduct or gross negligence so as to enable them to invoke the protection afforded by the risk notes; and. (2) since the disclosures as to the manner in which the goods were lost was not made prior to the? filing of the suit, a presumption u/s 114 of the Evidence Act should be made against the Defendants and the suit decreed.
Before dealing with these points, it is convenient to set out the terms of the risk-notes which are called in aid by the Respondents as the answers to the problems posed in this appeal turn upon their interpretation.
I we the undersigned, do, in consideration of such lower charge, agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, the said consignment from any cause whatever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants, provided that in the following'' cases:
(a) x x xx x (b) Pilferage from a package or packages packed as in (a) when such pilfeiage is pointed forming part of the said consignment properly out to the servants of the Railway Administration on or before delivery.
The Railway Administration shall be bound to disclose to the "consignor how the consignment was dealt with throughout thci time it was in its possession or control and if necessary, to give evidence thereof before the consignor is called upon to prove misconduct, but if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.
With regard to the first point urged by the learned Counsel for the Appellant, the evidence of D. Ws. 1 to 6 and Exhibits B-5, B-7, B-8 and B-ll clearly make out the case of the Defendants that the goods train came to a halt when it was near the outer signal of Domboville Station as there was danger signal. It also appears from the evidence of these witnesses that the particular signal could not work because ther signal arm was tied up and the train was there for 26 minutes.D. Ws. 2 and 6 spoke to the actual commission of tins offence of robbery while D. W. 4 only saw some men running away.
This evidence, if accepted, is sufficient to-sat isfy a Court that the loods were lost as a result of the commission of theft and not due to any misconduct on the part of either the servants off the Railway or the Administration itself. The evidence commended itself both to the trial Court and the lower appellate Court, and there is no reason why I should differ from them in this regard. There is nothing elicited in the cross-examination of the Defendants'' witnesses which would suggest. that they were not speaking the truth.
So there is no reason why their evidence should not be believed. In my opinion Ihu credibility of D. Ws. 1 to 6 could not be questioned and, their testimony could, be safely acted upon. Fur-j. tber, the concurrent finding of fact that the goods! were lost while in transit as a result of robbery! is binding upon this Court as it is not vitiated in" any way ahd it has to be''accepted.
On the second point, reference was made to a judgment of the Privy Council in AIR 1937 152 (Privy Council) where the risk note that had to be considered by the Privy Council was similar to those in the present case. Mr. Venkatarama Sastri contended that as the facts in the case cited are analogous to those of the present case, a judgment should be given in favour of the Appellant. I do not think that case really helps the Appellant. The facts in the Privy Council case: have no resemblance to those here.
In a suit claiming damages for the non-deli, very of certain bale''s of cotton cloth against the railway, the liability of the Defendant, in view of the terms of the risk-note was put in issue as the Defendant pleaded that the goods were lost by thc''ft during transit after breaking open the locks and the rivets. During the trial the Railway Company failed to examine the guard of the train, who could give relevant evidence about the loss of the goods. In fact, the Railway Company could not adduce any evidence as to the exact manner in which and the place where they were lost.
In such a situation their Lordships held that the Court could presume u/s 114, illustration (g) of the Evidence Act that such evidence if produced would be unfavourable to the Railway Company, and infer misconduct, by complicity in the thefjt by some members of the Railway Company, and that the Plaintiff''s suit should be decreed- It is thus seen that the ground of the decision there was that the best evidence available namely, that of the gurad who was the person "that could speak about the loss of the goods was not placed before the Court.
But the circumstances are altogether different here. At the available evidence was placed before the Court and nothing better could be done in the matter by the Railway Company.
Reliance was next placed by Mr. Venkatarama Sastri on the remarks oS- their Lordships that the obligation to disclose to the consignor how ''the consignment was dealt with throughout the time it was in its possession or control arises at once upon the occurrence of either of the cases covered by Clauses (a) and (b) referred to in the risk note and was not confined to the stage of litigation.
It is upon these observations that the argument of Mr. Venkatarama Sastri is based that:
non-compliance with this disclosure; leads to the result contended for by him. I do not think that this consequence flows from the omission to disclose to the Plaintiff the information contemplated in the risk-note, before the filing of the suit-As pointed out by their Lordships the object of furnishing this information is to obviate, if possible, the necessity for litigation.
It may be that this disclosure. might satisfy ihe consignor or the consignee as the ease may be and he might not proceed further in the matter. It, is only when the party aitectd feels that the disclosure is inadequate he might resort to a Court of law for the settlement oi'' his claim. This does not mean that either the suit should be decreed or a presumption should be drawn against the Railway Administration u/s 114, illustration (g) of the Kvidcnco Act that if the disclosure was made it would be against the Administration.
If the Railway Administration fails to comply with the earlier part of its obligation it was to lead evidence to indicate to the parties affected as to how the consignment was dealt with while it was in its control. Before the consignor or consignee could be required to show that the Administration or its servants have been guilty of misconduct of gross negligence this initial burden has to be discharged by the Administration. That,in my opinion is the only effect of the relevant clause in the risk note.
The M. and S.M. Railway Co., Ltd. v. Nallathambi Chetti, A. Rathnavelu Chetti, and Co. 53 Mad LJ 407 : AIR 1927 Mad 908) (B), cited by Mr. Venkatarama Sastri does not advance the case of the Appellant to any extent. In fact it was inter alia decided that after the case came to Court the Railway should adduce evidence as to how the consignment was dealt with only when required by the Court to do so before the consignor was called upon to prove misconduct, but if the Court did not think it necessary, there was no obligation on the Railway Company to call evidence and that the onus of. proving misconduct lay still on the consignor. It was also laid down that the evidence as to how the consignment was dealt with did not mean evidence as to how the stolen goods were stolen.
The learned Counsel for the Appellant next relied on judgment of a Bench of the Madras High Court in The M. and S.M. Ry. Co. Ltd. Vs. Garimella Satynarayana and Sons and Another, . The facts of that case are noit analogous to those in the instant case. Following the principle adumbrated in 64 Ind Aop 176 : AIR 1937 PC 152) (A) the learned Judges held 1hat since the Railway Company could not prove that the goods were lost by fire or on account of any accident to train and also having failed to take the opportunity to disclose to the consignor as to how the consignment was dealt with, etc., ;u; demanded by him the company became liable in damages. In these circumstances the doctrine of 1937 2 MLJ 798 : AIR 1938 Mad 200) (C) is inapplicable; to this case.
As already stated by me, the initial disclosure would obviate the necessity for filing a suit. If the Administration fails to make this disclosure, it may have to lead evidence on the question of how the consignment was dealt with ?tc. and thus discharge the initial onus. It is onlv after this that tho consignor will have to orove that the Administration would not be entitled to the orotection afforded by the risk-note -is it was guilty of misconduct.
In this case it is not even protended that the consignee, i.e., the Plaintiff, had required the Administration to make a disclosure as to the manner in which the packages were dealt with during the time they were under the control of the Administration. It is not also his case that after the evidence was led by the Administration he wanted some more evidence to be adduced by the Defendants or some more information from them.
There is no suggestion of suppression of any material by the Railway Company. In these circumstances misconduct could not be attributed to the Administration and therefore they were justified in invoking .the aid of the risk-notes. It follows that both these contentions lack substance and have to be negatived.
In the result, the second appeal is dismissed with costs. No leave.