Liability of Railway for destruction of consignment by fire.

This, is a suit filed by Malick Chemical Works for recovering from the Union of India, owning the Northern Railway, the Central Railway and the Southern Railway, Rs. 15,120, with subsequent interest and costs, for causing damage by fire, due to their servants’ negligence and misconduct, to 480 drums of turpentine, each containing five gallons, while in transit from Pathankot on the Northern Railway, to Salt Cotaurs, Madras, in the Southern Railway at Ramakundam Station in the Central Railway, in the Hyderabad State. The defendants strenuously contested the suit. The nature of the contentions will be clear from the issues framed in the case.

The issues were:-

1. Is the firm of the plaintiffs registered under the Indian Partnership Act?

2. Were the goods in question consigned at railway risk or at owner’s risk?

3. Was the consignment in question destroyed by fire on the 5th May, 1949 as alleged by the third defendant?

4. Was the fire, and the consequent damage to the goods, due to any wilful neglect or default of the 3rd defendant (present 2nd defendant, the Central Railway)?

5. Is the 3rd defendant (present 2nd defendant) guilty of misconduct or negligence amounting to misconduct?

6. Are the plaintiffs entitled to any damage? If so, what is the amount?

7. To what reliefs are the plaintiffs entitled?

This suit was first tried ex parte by Ramaswami, J., who decreed the suit with costs, on 19th February, 1954. The ex parte order was set aside by the same learned Judge on 15th April, 1954, at the request of the defendants, on their paying the plaintiffs’ advocate a sum of Rs. 250 as costs. The defendants paid that amount, and the suit was restored to file.

When the suit came on for fresh hearing before me, the plaintiffs’ firm examined one of their partners, Shantilal Malick, as P.W. 1, and the defendants examined several railway servants, D.Ws. 1 to 9. Exhibits P-1 to P-48 were also marked.

P.W. 1 swore that the plaintiffs’ firm had been registered as a partnership firm, and filed Exhibit P-47 to show that it was registered on 27th June, 1950, before the suit was filed (on 6th July, 1950). He stated that in April, 1949, he went to Jammu and purchased 480 drums of turpentine from one Mahammad Amin and Company for Rs. 11,520 and entrusted Mahammad Amin with the task of sending those drums by lorry to Pathankot, in the Northern Railway, the nearest railway station, about 90 miles from Jammu. Mahammed Amin took from him 180 rupees for lorry charges, and Rs. 1,974 for freight charges, and Rs. 6 for loading. In all, he gave a bill for Rs. 13,680, Exhibit P-7. P.W. 1 had taken a draft in his name on the Punjab National Bank at Jammu with him. He cashed it and paid Rs. 13,680 in cash towards that bill. Mahammad Amin took the drums and loaded them in wagon No. B.A. 5596, in a goods train, at Pathankot. He executed risk notes A and Z, A being for defective packing, and Z for sending the goods, at reduced “owner’s risk” rate. The railway risk rate would have been higher by Rs. 2 per maund according to D.W. 8, the Chief Goods Clerk at Pathankot,. who booked the goods. D.W. 8, stated that he showed 15 wagons to Mahammad Amin and asked him to choose his wagon, and that he chose the wagon No. D.A. 5596 which was burnt down at Ramakundam. He said that it was in a perfect and sound condition to carry these turpentine tins at the time Mahammad Amin chose it. He stated that it had an iron cover for its roofing. He added that he could not trace the risk notes, A and Z, which he took from Mahammad Amin. He said that after the wagon had been loaded by Mahammad Amin he put in the wagon-way-bill into it, and also sealed the wagon, and affixed the usual seal card, but he could not say whether he described the goods loaded into the wagon, in the sealed card, as “turpentine drums” or merely as “military stores”. The evidence of the defence witnesses, D.Ws. 1 to 6 shows that the seal card showed the description of the goods as “military stores”, and some of the