coils in transit in open Railway wagons ..
Section 93 of
the Act deals with the general responsibility of Railway Administration as
carrier of goods:
A Railway
Administration shall be responsible for the loss, destruction, damage or deterioration
in transit or non-delivery of any consignment arising from any cause except the
following namely: Act of God; Act of War;
Act of Public Enemies; Arrest, restraint or seizure under legal process;
Order or restrictions imposed by the Central Government or a State
Government; Act of omission or
negligence of the consignor or the consignee or the endorsee or the agent or
servant of the consignor or the consignee or the endorsee; Natural deterioration or wastage in bulk or
weight due to inherent defect, quality of vice of the goods; Latent defects; Fire,
explosion or any unforeseen risk, provided that even where such loss,
destruction, damage, deterioration or non-delivery is proved to have arisen
from any one or more of the aforesaid causes, the railway administration shall
not be relieved of its responsibility for the loss, destruction, damage,
deterioration or non-delivery unless the railway administration further proves
that it has used reasonable foresight and care in the carriage of the goods.
There is
another Section – Sec 103 that deals with the extent of monetary liability in
respect of consignments entrusted. The
Act provides for declaration of value to the Railways. If value is declared and prescribed fee paid,
then the extent would the value of the cargo so declared and where the value of
consignment is not declared, the amount
of liability of the railway administration for the loss, destruction, damage,
deterioration or non-delivery of the consignment shall in no case exceed such
amount calculated with reference to the weight of the consignment as may be
prescribed, and where such consignment consists of an animal, the liability
shall not exceed such amount as may be prescribed.
It is a case of Allahabad
High Court against East Indian Railway Company in Nov 1923, an appeal on a
decision of Small Cause Court.
The plaintiff was the consignee of 126 bags,
which were loaded at Kidderpur station and were despatched to Cawnpore.
(Kanpur!) The railway wagon arrived at
Cawnpore on the 27thof December, 1921, and the seals on the wagon
were found intact. As the railway company had many other wagons to unload, this
wagon was put on a siding and remained there for two days. Later it was reported that the seals on one
side of the wagon were broken. When the contents were checked, it was
discovered that six bags were missing. After a lengthy correspondence, which
came to nothing, the plaintiff instituted
suit to recover damages for the loss of the bags.
Railway company took several pleas in defence, but
three main issues were framed by the trial court. The first was whether the
risk-note absolved the defendant company of all liability or not. The second
was whether the goods were stolen at Cawnpore yard and whether the risk-note
(form B) applied and whether the defendant company was guilty of wilful
negligence or not. And the third was to what money the plaintiff was entitled.
The learned Judge of the
Small Cause Court found these issues in favour of the plaintiff and granted him
a decree. Railways went for revision
urging that the findings of the lower court are quite insufficient and further
that the burden lay on the plaintiff to prove that there was either a wilful
neglect of the company or theft by or on account of the wilful neglect of its servants.
I am bound to concede that
under the contract which took the shape of the risk-note (form B) a prima facie
burden lay on the plaintiff to prove neglect or theft of the kind mentioned
therein. I agree that a mere proof of the loss of the goods would not be
sufficient to entitle the plaintiff to a decree. This was the view expressed by
a Bench of this Court in the case of East Indian Railway Co. v. Nathmal Behari
Lal (1917). It is obvious that the
evidence, if any, of wilfull neglect or negligence is within the special means
of knowledge of the railway company, and it is ordinarily very difficult for a
plaintiff to establish that the loss was due to the wilful neglect of the
company. Nevertheless, I concede that under the terms of the contract the burden
is prima facie on the consignee. But I am of opinion that where certain
circumstances have been established, either by direct evidence produced by the
plaintiff or by the cross-examination of the witnesses for the defendant, from
which circumstances wilful neglect or negligence can be inferred, the burden
must then be shifted to the defendant company. Such circumstances coupled with
the patent fact that the packages have been lost, may justify a court to hold
that the burden has been discharged.
It is to be noted that the only circumstance
which the plaintiff had there proved was the fact that the goods had been
despatched and on arrival of the train in Cawnpore the seals of the doors of
wagons were found to have been broken and six bags of sugar found missing. The
learned Judges were doubtful whether it was not a case of theft from a running
train.
In a recent case decided by the House of
Lords, namely, H.C. Smith Ld. v. Great Western Railway Co. (1922) 1 A.C. 178
(188), it was laid down that the burden of proving in the first instance that
the loss sustained arose from the wilful misconduct of the company's servants
was thrown upon the trader.
In the present case I find
that the learned Judge of the Small Cause Court had before him a clear issue as
to the wilful negligence of the company. In the course of his judgment he has
pointed out that the yard where the wagon was kept was a very large one and
that its wall on the jungle side was broken at several places at the time when
the goods were stolen. He has commented on the fact that the railway company
took two days to unload the goods after their arrival at the station. Having considered these circumstances, he remarks:
"If the goods are lost on account of the railway company's not making
proper arrangements, the railway company is liable." Further on, he
remarks that it was clearly not a case of theft from a running train. In view
of these findings I am unable to hold that the judgment of the learned Judge of
the Small Cause Court is wrong. In view of this I am unable to interfere. The
application is rejected.
One cannot
judge the predicament of the consignor reading a case that occurred almost a
century ago, .. .. yet, it is a case of short delivery of consignment, which
Railway Company denied in first place, and the cargo owner had to go to Court
and again appear on appeal made by Railway Company.
Interesting
!!
With regards
– S. Sampathkumar
13th Apr 2017.
