Union of India (UOI) vs Jugalkishore Champalal

S.K. Sen, J.—This revisional application is directed against an order of the Full Bench of the Calcutta Small Cause Court reversing the order of dismissal of a claim for damages against the Union of India representing the Western, Central and Eastern Railway Administration, and granting a decree for Its. 1,365-13-9 plus costs in favour of the opposite party. The opposite party Messrs. Jugalkishore Chamanlal purchased a consignment of three bales of cotton piece goods booked by Ahmedabad New Cotton Mills Company Ltd., from Ahmedabad to Shalimar, Howrah. The opposite party however, got delivery of two of the bales only and a short delivery certificate was granted by the Railway officers at Shalimar, Howrah, on August 26, 1953. The three bales had been despatched on July 22, 1953 by Wagon No. 31651 W.R. (Western Railway). As the Plaintiff firm (opposite party) was unable to receive compensation for the 3rd bale of missing cotton piece goods even after correspondence, it filed the suit, being suit No. 3403 of 1954 in the Calcutta Small Causes Court, claiming compensation equal to the value of the missing bale of cotton piece goods, viz., Its. 1,365-13-9.

The claim was contested by the Union of India representing the Railway Administrations. The defence with which we are concerned now is that the Railway Administrations took due care and caution in carrying the three bales of goods but one bale was lost on account of reasons beyond their control, viz., by theft from the running goods train containing the Wagon No. 31651 W.R. between Chakradharpur and Gomharia, and so accordingly the Union of India was not liable to pay any compensation. The Trial Bench accepted the defence that it was a case of theft from a running train and that the Union of India representing the Railway Administrations had no liability because all proper care and caution had been taken in carrying the goods as a bailee. Accordingly the suit was dismissed.

There was an application u/s 38 of the Presidency Small Cause Courts Act, and this application was heard by the Full Bench of the Small Cause Court. The Full Bench set aside the order of the Trial Judge and remanded the case for fresh trial, pointing out that on several points there was no legal evidence, but that the Trial Judge had relied on inadmissible evidence, i.e., copies of railway journals and certificates which could not be admitted into evidence, and on incomplete oral evidence of witnesses who spoke without reference to contemporaneous entries in books and journals.

After the remand, the case was reheard and additional witnesses were examined and some original books were produced. Legal evidence was produced showing the booking and loading of the three bales of cotton piece goods at Ahmedabad into wagon No. 31651 W.R., the handling of the Wagon at Chakradharpur where the train was re-formed and the wagon put into a goods train from Chakradharpur to Shalimar, Howrah; the finding of broken seals and rivets of a side door of the wagon at Gomharia where the door was re-sealed, and the checking of the contents of the wagon at Tatanagar as a result of which it was found that several bales of goods including one of the piece goods bales covered by the consignment in question were found missing. On that evidence the Trial Judge again accepted the defence that there was a theft of the bale from the running train between Chakradharpur and Gomharia, and that the loss was due to a cause beyond the control of the Railway Administration and in spite of due diligence and care which a bailee was required to take. Accordingly, the suit was dismissed again with costs.

The Plaintiff opposite party again filed an application u/s 38 and the Full Bench came to the conclusion that on the evidence on the record it was not possible to come to conclusion that due care and caution had been taken by the Railway Administration and that the loss had been due to a theft by outsiders from the running train. In the circumstances the Full Bench held that the Plaintiff was entitled to the compensation claimed by him and so granted a decree in favour of the Plaintiff opposite party.

Accordingly, the Union of India representing Railway Administration has filed this revisional application. Mr Ajoy Kumar Bose, appearing for the Petitioner, has urged firstly, that the Judges of the Full Bench exceeded their jurisdiction in interfering with a finding of fact arrived at by the Trial Judge, viz., that there had been loss of the bale due to theft iron the running train; and secondly, that if the Judges of the Full Bench considered that there was still lacuna in the evidence they should have remanded this suit again for a fresh trail, and that they had no jurisdiction to reverse the decree of the Trial Judge and grant a decree in favour of the opposite party.

In support of the first contention of Mr. Bose, he has referred to the decision of Lort Williams, J., in Baldeo Das Lonia v. Balmukund Brijmohan (1929) 34 C.W.N. 418. Therein Lort Williams, J., observed that though, the wording of Section 38 of the Presidency Small Cause Courts Act was wide enough to cover appellate jurisdiction both on fact and on law, it had been the settled law in India for many years that the Court u/s 38 was limited to points of law only and could not entertain questions of fact or of mixed fact and law; and that the only exception was that the Full Bench might order a new trial where the judgment manifestly was against the weight of evidence. Now the finding of the Trial Judge about there having been a theft from the running train was only an inference from the facts directly proved by the evidence adduced in the case. The learned Judges of the Full Bench did not reject any item of evidence which had been accepted by the Trial Judge but they observed that the facts proved by the evidence were not sufficient to show that the Railway Administration had taken all reasonable care of the consignment of cotton piece goods; and since the consignment had been despatched at railway risk, unless the Railway Administration could prove that it had taken all reasonable care and caution in carrying the goods, the Railway Administration would be liable. Thus the Full Bench did not really reverse a finding of fact made by the Trial Judge, but the Full Bench held that the conclusion from the proved facts drawn by the Trial Bench was not the correct conclusion to be drawn from them. I do not think that the Full Bench acting u/s 38 of the Presidency Small Cause Courts Act is precluded from coming to such a conclusion. In this connection I may refer to the decision M. Govindan v. Gulabachand Rawatmull (1954) 95 C.L.J. 177. In that case on the basis of certain correspondence the Trial Bench held that no completed contract had been proved and therefore a claim for compensation for breach of contract was not maintainable. The Full Bench u/s 38 of the Presidency Small Cause Courts Act held that on the basis of the correspondence proved in the case the proper conclusion was that there was a completed contract, and remanded the case for assessment of the damages which might be awarded for breach of contract. It was held that it was within the jurisdiction of the Full Bench acting u/s 38 to revise the finding on any issue, the finding being based on reasonable conclusion to be drawn from the proved facts. Similarly, in the present case, the Full Bench did not reject any item of evidence accepted by the Trial Bench but pointed out that the evidence adduced by the Railway Administration was not complete and that it was not possible to deduce from the evidence that there must have been a theft from the goods train between Chakradharpur and Gomharia, and that therefore, the Railway Administration had not discharged the onus which lay on it to show that it had taken all such care and caution as it was bound to take as bailee of the goods. I must hold that the Full Bench did not exceed its jurisdiction and therefore the first point urged by Mr. Bose fails.

As regards the second point, that the Full Bench should have remanded the case back to the Trial Bench, I am unable to accept this contention, because by the express terms of Section 38 of the Presidency Small Cause Courts Act, the Full Bench has the power to filter, set aside or revise the decree or order passed by the Trial Bench. The Full Bench is not bound in all cases to order a new trial.

As to the point whether the evidence adduced on behalf of the Defendant or the Railway Administration was incomplete, I must agree with the view of the Full Bench. The Full Bench observed that accepting the evidence on the record which had been acted upon by the Trial Judge, it was proved that a goods train was reformed at Chakradharpur with wagon No. 31651 W.R. and other wagons; and that after several hours the reformed train started from Chakradharpur with D.W. 2 Roderick as the guard, and that the train had been stopped from some time before entering Gomharia station as the line was not clear and on entering Gomharia station it was found that one side door of this Wagon 31561 W.R. was open with the seal and rivet broken and the door was re-sealed without any check at Gomharia, and 7 miles further on at Tatanagar Railway station, the contents of the Wagon were checked and then the loss was detected. The Full Bench went on to observe that there was no legal evidence to prove that the wagon had not been tampered with at or before Chakradharpur Railway station and that all necessary precautions as are required of a bailee had been taken with regard to this wagon before it started from Chakradharpur, and that it was also queer that no information of the alleged theft was given to the Watch and Ward Department or the Railway Police and no investigation made as to the alleged wagon breaking between Chakradharpur and Gomharia. I must agree that it is queer that no information of the alleged theft was given to the Government Railway Police or even to the Watch and Ward Department of the Railway Administration. The check report at Tatanagar shows not only loss of one bale from the particular consignment but a total loss of 15 bales. It is therefore surprising that no information should have been given to the Railway Police and no investigation made of the alleged wagon breaking. Mr. Bose has urged that the Judges of the Full Bench were wrong in observing that from the non-examination of the seal checker of Chakradharpur an adverse inference could be drawn, because there was the evidence of the guard D.W. 2 and the trains clerk of the Chakradharpur D.W. 3, that when the train started from Chakradharpur they examined the wagons and found them in order. But the evidence of the guard shows that he examined the wagons only in a general way when the train started from Chakradharpur; he took charge of the reformed train at Chakradharpur and did not know what had happened before he took charge; and he admitted in cross-examination that he checked the train for the first time at Gomharia. As regards the trains clerk, he said that at the time of the arrival of the train it was not his duty to do anything, but only at the time of departure of the trains he had to take the numbers of the wagons and the train number and note the time of departure, and at the time of departure of the train he found the wagons of the train in good condition. But the witness admitted that the wagon No. 31651 W.R. had been received at Chakradharpur at 8-55 a.m. on August 4, 1953 and it was despatched from Chakradharpur with the reformed train after 36 hours, i.e., on August 5, 1953 at 20-50 hours or 8-50 p.m. and the witness could not say anything about the condition of the wagon when it reached Chakradharpur and anything as to what happened in the yard when the train was reformed for Shalimar. The guard said that it was the duty of the seal checker to check the seals and that the seal checker had made a seal memo, and handed it over to him, but the seal memo, was mislaid and could not be produced in Court. The seal checker was also not examined. In the circumstances, I must hold that the learned Judges of the Full Bench were clearly right in holding that there was a lacuna in the evidence, because it is not possible to say in view of the evidence that the train had not been tampered with before it reached Chakradharpur or during the re-arrangement of the wagons in the Chakradharpur yard, because no Railway officer came to prove what had happened at those stages. The burden of proof was on the Railway Administration to show that it had taken all the care and caution as required of a bailee, because the goods had been despatched at railway risk as shown by Ext. A, and I hold that the Full Bench was right in concluding that this burden had not been fully discharged and therefore the Railway Administration could not escape liability.

In the circumstances, I find no reason to interfere with the judgment of the Full Bench.

This Rule is, therefore, discharged with costs.