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PATNA HIGH COURT
S.C.Misra and G.N.Prasad JJ.
Jugal Kishore Bhadani
Versus
Union Of India
Letter Patent Appeal No. 71 of 1959 ;
Decided On : SEPTEMBER 15, 1964
RAILWAYS ACT - SECTION 72 - RISK NOTE - MISCONDUCT - LIABILITY OF RAILWAY ADMINISTRATION - GROSS NEGLIGENCE OF GUARD - FAILURE TO CHECK WAGON AT STOPPAGES - LOSS OF CONSIGNMENT - LIABILITY OF RAILWAY ADMINISTRATION.
Fact of the Case:
The plaintiff, a consignee, instituted a suit against the defendant, the railway administration, for recovery of damages for non-delivery of a part of a consignment booked for carriage by railway. The consignment was booked at a special reduced or owners risk rate, limiting the general liability of the railway administration to that of a bailee by executing risk notes in Forms A and Z, whereby the railway administration was relieved of all responsibility for loss, destruction or damage to the goods or any part thereof arising from any cause whatsoever, except upon proof of misconduct on the part of the railway administration or its servants.
Finding of the Court:
The court found that the guard had falsely claimed to have checked the train at Pachoura, and that the railway administration had failed to provide for Watch and Ward arrangements at the various intervening stations, Nandgaon, Pachoura and Maheji, which were all scheduled stoppages, and among them Nandgaon was a seal checking station. The court also found that the Guard was responsible for the safety of the consignments put under his care, and that it was his duty to check the seals even at Chalisgaon and Maheji, where the haltages were for 13 minutes and 15 minutes, respectively, because if it was his duty to check the seals at Nandgaon, where the haltage was for 10 minutes only, there was no reason why he had not sufficient time to check up the wagons at the two other stations, where the haltages were for more than 10 minutes.
Issues: 1. Whether the guard had checked the train at Pachoura as claimed by him? 2. Whether the railway administration had failed to provide for Watch and Ward arrangements at the various intervening stations? 3. Whether the Guard was responsible for the safety of the consignments put under his care? 4. Whether it was the duty of the Guard to check the seals even at Chalisgaon and Maheji? 5. Whether the loss of the part of the consignment was due to the misconduct of the Railway Administrations servants, particularly the Guard?
Ratio Decidendi: 1. The court held that the guard had falsely claimed to have checked the train at Pachoura, based on the following reasons: - The guard's evidence was in sharp conflict with his former deposition. - The letter sent by the Chief Commercial Manager to the plaintiff did not mention that the wagon was found intact at Pachoura. - The guard had not checked the train at Nandgaon, Chalisgaon and Maheji, which were also scheduled stoppages. 2. The court held that the railway administration had failed to provide for Watch and Ward arrangements at the various intervening stations, Nandgaon, Pachoura and Maheji, which were all scheduled stoppages, and among them Nandgaon was a seal checking station. 3. The court held that the Guard was responsible for the safety of the consignments put under his care, and that it was his duty to check the seals even at Chalisgaon and Maheji, where the haltages were for 13 minutes and 15 minutes, respectively, because if it was his duty to check the seals at Nandgaon, where the haltage was for 10 minutes only, there was no reason why he had not sufficient time to check up the wagons at the two other stations, where the haltages were for more than 10 minutes. 4. The court held that the loss of the part of the consignment was due to the misconduct of the Railway Administrations servants, particularly the Guard, based on the following reasons: - The Guard had signally failed to check the wagon at any point throughout the journey between Niphad and Bhusaval. - The Guard had not cared to check the wagon even at Nandgaon which was a seal-checking station; nor had he performed this duty at Pachoura where the train had halted for not less than 52 minutes. - The railway administration had failed to provide for Watch and Ward arrangement at all the stopping stations in order to keep proper guard upon the wagons of the train.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the learned Single Judge and of the trial court, and decreed the suit for a sum of Rs. 6,396/5/- with interest pendente lite and until realization at the rate of 6 per cent per annum.
G.N.Prasad, J.
1. Consequent upon nondelivery of a part of a consignment booked for carriage by the railway, the plaintiff consignee, who is the appellant before us, instituted the suit for recovery of damages from the defendant, attributing loss of the undelivered part of the consignment to negligence and misconduct of the railway administration or their servants.
2. The material facts which are not in dispute before us are these: On the 2nd November 1949, the entire contingment which consisted of 41 bales of cloth was duly loaded at Wadibunder in a through wagon (No. N. W. R. 4223) for carriage to and delivery at Gaya in forms of railway receipt No. 9494/20, dated the 1st November 1949, The consignor did not, however, pay the freight at the ordinary tarrif rate, but booked the consignment at a special reduced or owners risk rate, limiting the general liability of the railway administration of that of a bailee by executing risk notes in Forms A and Z, whereby the railway administration was relieved of all responsibility for loss, destruction or damage to the goods or any part thereof arising from any cause whatsoever, except upon proof of misconduct on the part of the railway administration or its servants. The wagon in question reached Igatpuri, where it was found intact by R. M. Kharkar (D. W. 8), the Guard travelling on the goods train in question between Igatpuri and BluisavaL The train left Igatpuri at 21.05 hours on the 3rd November 1949 and it reached Bhusaval on the following morning at 6 a.m., when on checking the train, the Guard found that the right hand side door of the wagon was open and although the seal on the left hand side door was intact, there was no rivet on it. Accordingly, the wagon was detached from the train at Bhusaval and placed in the checking shed where the contents of the wagon were checked on the 6th November 1949 by the Checking clerk (D. W. 1), in the presence of the Watchman (D. W. 9).
As a result of the verification made by them, it was found that 5 bales forming part of the consignment in question were missing. The wagon was thereafter re-sealed and riveted and despatched to Gaya, where it arrived on the 16th November, 1949. On the 18th November, 1949, the Goods clerk (D. W. 7) of Gaya railway station delivered the remaining 36 bales to the plaintiff, in whose favour the railway receipt had been duly endorsed by the consignor. Thereafter the plaintiff preferred his claim under Section 77 of the Railways Act, and ultimately he received a letter (Ex. 10/a), dated the 2nd December, 1950, from the Chief Commercial Manager of the then East Indian Railway, whereby he was informed that from enquiries made by the railway authorities, it transpired that the part of the consignment was lost "due to a Running Train theft between Nandgaon and Bhusaval over the G. I. P. Railway, a circumstance beyond control of the Railway Administration". The plaintiff, however, did not consider the reply from the railway authorities to be satisfactory and served a notice (Ex. 4) under Section 80, Code of Civil Procedure, upon the General Manager of the East Indian Railway and instituted Money Suit No. 12 of 1931 against the defendant on the 18th January, 1951 before the expiry of the period of sixty days contemplated by Section 80, Code of Civil Procedure. That suit proceeded to trial before the 4th Additional Subordinate Judge of Gaya, who by his order, dated the 6th May, 1952, permitted the plaintiff to withdraw the suit with liberty to sue afresh, and then the present suit was instituted by the plaintiff on the 12th May, 1952.
3. The defendant contested the claim of the plaintiff on the ground of limitation and also on the ground that there was no negligence or misconduct on the part of the railway administration or its servants, since the consignment which had been booked at owners risk had been subjected to theft in running train between Pachoura and Bhusawal, under circumstances beyond the control of the
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