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ATTORNEY-GENERAL v. PURUSHOTHAMAM
NLR61V206
1958 Present:
Weerasooriya, J., and Sansoni ,J.
THE ATTORNEY-GENERAL,
Appellant, and
S. S. M. PURUSHOTHAMAM et al., Respondents
S. C. 575-D. C. Colombo, 33,655/M
Railway-Loss of goods during transport--Owner's right to claim damages-
Negligence-Quantum of proof-Railways Ordinance (Cap. 153), as amended by Act No.
18 of 1950, s. 15 (1).
Plaintiff sued the Attorney-General to recover damages for the loss of certain
goods and injury to other goods which were being conveyed by the Ceylon
Government Railway.
Held, that under section 15 (1) of the Railways Ordinance, as
amended by the Railways (Amendment) Act, No. 18 of 1950, the Government was not
liable unless the loss or injury had been caused by negligence or misconduct on
the part of their agents or servants. In such a case, the plaintiff must show in
what respect the Railway authorities failed in their duty to exercise due
diligence.
APPEAL
from a judgment of the District Court, Colombo.
A. C. Alles, Deputy Solicitor-General, with W. Laduwahetty, for the
Defendant-Appellant.
N. Kumarasingham, with S. Sharvananda, for the Plaintiffs-Respondents
Cur. adv. vult.
January 31,1958. SANSONI, J.-
The plaintiffs sued the Attorney-General in this action to recover the sum
of Rs. 3,084.77 as damages for the loss of certain goods and injury to other
goods which were being conveyed by the Ceylon Government Railway from
Talaimannar Pier to Jaffna.
The goods in question were loaded into a goods wagon at Talaimannar Pier on the
night of 27th September, 1951. The wagon doors were locked on each side with two
padlocks which were then covered with paper, waxed and sealed. The padlocks in
question have been described in the evidence as "big railway padlocks" and also
as "very heavy padlocks". The wagon formed part of a train which was re-formed
at Anuradhapura and then consisted of four passenger coaches, thirty-six goods
wagons, and a guard's van. This particular wagon was the 9th from the engine and
the 31st from the guard's van, which was at the rear of the train. There were
two guards on each train, and it was their duty
to watch the wagons from the
observation post on either side of the guard's van while the train was in
motion, although they also had other duties to perform.
Although a person cannot get on to a train which is traveling fast, it is
possible for him to do so when the train has stopped or is moving slowly. For
this reason the guards are expected to keep a close look out when the train is
either entering or leaving a station, or when it has stopped. The guards also
have the duty of examining the goods wagons when the train stops at a station,
if there is the time to do so.
The evidence shows that the re-formed train which left Anuradhapura for Jaffna
reached Navatkulli Railway Station at 7.01 p.m. and stopped there for 8 minutes.
Under-guard Seevaratnam then examined all the wagons and found that the seals
and padlocks were all intact. When the train reached Jaffna at 7.24 p.m. it was
discovered that a padlock of this wagon had been broken and certain goods stolen
from it.
The learned District Judge has held that the theft took place between Navatkulli
and Jaffna. The question he set himself to answer was whether the plaintiff had
proved that there was negligence on the part of the Railway authorities.
Under section 15 (I) of the Railways Ordinance, Cap. 153 as amended by the
Railways (Amendment) Act, No. 18 of 1950, "the Government shall in no case be
liable for the loss or destruction of, or any injury to, any property carried by
the railway, unless such loss, destruction or injury shall have been caused by
negligence or misconduct on the part of their agents or servants ". The learned
Judge considered that on the facts of this case the inference of negligence was
inevitable. He pointed out that although goods wagons are padlocked with two
padlocks on both side, which
