Mack, J. - (1.) The plaintiff, a piece goods merchant of Coimbatore with an office in Madras, sues the South Indian Railway for the recovery of Rs. 6981-10-0 as the value of three bales of sarees and cloths which were stolen from the Madras Beach Station goods shed.
(2.) The admitted facts are these. On 29th May 1946 the plaintiff's clerk Rajagopalan (P. W. 1) consigned six bales through a cartman maistry one Pullayya P. W. 2 to be booked to Tuticorin. He placed these bales near the weighing machine in the goods shed without any formalities of booking being complied with. The nest morning the forwarding note, Ex. P-1, and the risk notes Exs. P-2 and P-3 were numbered and, entered by the railway gate clerk D. W. 1 in the gate book Ex. D-2 in which the forwarding note EX. P-1 was assigned a number 294. In the meantime one of the bales kept in the goods shed was stolen the previous night. Rather a belated complaint was made about this disappearance by Pullayya. Rajagopalan made a complaint (EX. P-4) to the Chief Commercial Superintendent with a copy to the Goods Station Master, Sankaranarayana Ayyar, (D. W. 3) who has since retired, and sent a telegram to the plaintiff in Coimbatore District. The remaining five bales continued to remain in the goods shed without apparently anything being done till 1st June when Rajagopalan went with the plaintiff's son (P. W. 4) who had come from Coimbatore and discovered another bale missing. On the advice of the goods station staff who appeared to have assumed no responsibility for unbooked goods lying in the goods shed P. W. 4 sent a letter EX. p-5 to Trichinopoly bringing to notice the loss of the second bale and asking for open delivery of the remaining bales lying at the Beach station. The goods station master also on 1st June 1946 sent a complaint Ex. P 12 to the Madras Police enclosing a copy of this letter and asking for investigation. There was, however, neither development nor police investigation until the morning of 3rd June the four bales still lying in the goods shed. The senior assistant goods clerk D. W. 5 on coming to duty at about 7 A. M. found some coloured thread scattered outside the main goods shed gate way. He immediately sent word to the station master D. W. 3 who arrived and telephoned to the police. After a head constable arrived the goods shed gate, the seals of which were in tact, was opened. It was subsequently discovered that third bale belonging to the plaintiff had been stolen obviously by thieves during the night. The Inspector of Railway Police Egmore, A. W. Fernandez who hag since retired arrived at that morning and found underneath the main corrugated iron gate which closes the railway line which admits the wagons into the goods shed a space about a foot wide which had been formed in the masonry of the floor, through which on experimentation he found that a medium-sized man could squeeze without a scratch. It is not disputed that this was the modus operandi by which thieves entered the goods shed and made away with these bales. These investigations resulted in a case against two accused a woman (A-1) and a man (A-2) not employees of the railway who were convicted the former under Section 411, Penal Code, and sentenced to rigorous imprisonment for four months and the latter under Section 414, Penal Code, to rigorous imprisonment for only one month. They produced sarees from hiding places on confessions they made 28 sarees were returned by the police to the plaintiff who has in his claim given credit for their value.
(3.) A very significant piece of evidence is furnished by the Railway Police Inspector, P. W. 3 who deposed that the goods station master (D. W. 3) who worked in this capacity from 1944 to October 1946 told him that he had sent up a report about this depression under the main railway gate to his superiors in July 1948 and that no action had been taken. (After discussing the evidence, the judgment proceeded:) I must find, therefore, at the commencement that there was this defect in the gate brought to the notice of the railway authorities which they unfortunately neglected to rectify. It may be that by the use of a crowbar this depression was enlarged for purposes of these thefts and camouflaged by being filled with earth and debris to escape notice.;