KAN SINGH, J. - (1.) THIS is a second appeal by the Union of India (Railways) and is directed against an appellate judgment and decree of the learned District Judge Ajmer, dated 22. 2. 60, by which the learned Judge in reversing the judgment and decree of Civil Judge, Ajmer, dated 28. 10. 58 decreed an amount of Rs. 1700/-in favour of the respondent. The appeal raises the question about the mode of proving negligence or misconduct in a suit for damages based on short delivery of a consignment.
(2.) ON 14. 4. 51, one Fakruddin & Co. consigned scrap iron weighing 571 mds. 28 seers from Bombay Central, a station on the Western Railway (Broad guage) to Ajmer, a station on the metre-guage of the Western Railway, under a railway receipt. Nathilal, who was an endorsee of this railway receipt, took delivery of the part of the consignment at Ajmer. He received in all 386 maunds, 32 seers scrap iron. It was averred by him that in ordinary course of business the entire consignment should have been delivered to the plaintiff at Ajmer within 10 or 12 days of its booking. ON account of the late delivery, it was alleged by the plaintiff, he suffered a loss of Rs. 200/ -. He also claimed the value of the part of the consignment which remained undelivered. In all he claimed Rs. 2,777/4/9 from the Railway. The stand taken by the Railway was that the consignor loaded the goods without anybody supervising the same on behalf of the Railways and the goods were consigned on the owner's risk and whatever goods were consigned by the consignor were delivered to the plaintiff at Ajmer on a clear receipt. It was denied by the defendant Railway that there was any negligence or misconduct on its part as could entitle the plaintiff to claim the damages. The trial court framed a number of issues, but as it held that the plaintiff had failed to prove negligence or misconduct on the part of the Railway administration and further as the owner had elected to pay only the owner's risk rate the negligence or misconduct on the part of the Railway could not be said the have been proved. It observed that in accordance with the provisions of sec. 74g of the Railway Act the Railway could not be fastened with the liability in the absence of proof of negligence or mis-conduct on its part. In the result the learned trial Judge dismissed the suit with costs. Against this judgment the plaintiff went up in appeal to the learned District Judge. The learned District Judge came to the conclusion that in the first place it was not necessary for the plaintiff to prove negligence or misconduct on the part of the Railway administration in case of a short delivery of goods and secondly he observed that as the Railway administration had failed to produce the documents which they were called upon to produce as such documents could have established the negligence on the part of the servants of the Railway in dealing with the goods and consequently in disagreeing with the trial court the learned District Judge, in the circumstances, held that the defendants were liable for the value of the goods that were short delivered. As regards the value of the goods the learned District Judge accepted the testimony of one Kishan Gopal, who was the Munim of the plaintiff, what he stated about the rate of scrap iron on 14. 5. 51. In particular the learned District Judge placed reliance on the rate of scrap iron per maund that was mentioned in the invoice Ex. 1, and on the basis thereof he thus assessed the price of the goods to be Rs. 1425/- and to that he added Rs. 170/- as the railway freight and further allowing certain minor incidental charges he awarded a decree of Rs. 1700/- to the plaintiff. In attacking the judgment of the learned District Judge Mr. Agarwal, appearing for the Union of India, has strongly contended that the approach of the learned District Judge was wrong. He proceeds to argue that the learned District Judge was in error in coming to the conclusion that it was not necessary for the plaintiff to prove negligence or misconduct on the part of the Railway administration in case of short delivery of such goods. He urges that the learned District Judge has not properly appreciated the import of sec. 74c and sec. 74d of the Indian Railways Act. In elaboration of his contention he submits that there is a clear distinction between the principles of liability applying to a case where the goods are despatched at the owner's risk and a case where the goods are despatched at the Railway risk. In the latter case the initial burden of proving want of negligence or misconduct may be on the Railway, but, according to Mr. Agarwal, in a case where the goods have been despatched at the owner's risk it will be for the plaintiff to establish negligence or misconduct on the part of the Railway administration in order to fasten liability for short delivery on the Railway. According to Mr. Agarwal, the learned District Judge was not right in saying that existence of two different rates, that is, when goods are sent at owner's risk and at the Railway risk have not been established. In criticising this part of the learned District Judge's judgment he drew my attention to the entry on the Railway receipt and the forwarding note wherein it has been noted that the goods have been despatched at the owner's risk. He further brought to my notice a printed goods tariff which shows a higher rate when goods are despatched at the Railway risk and a lower rate when the goods are despatched at the owner's risk. It is for the consignor to choose whether he would like the Railway to cover the risk and for which he has to pay the higher rate; or he would like the Railway to carry the goods at his own risk. According to Shri Agarwal, the learned District Judge was not right in insisting on other evidence to establish this. Before I deal with the points urged before me I find it convenient to refer to the relevant provisions of the Railway Act. Chapter VII of the Railways Act deals with the responsibility of Railway administration as carriers. Sec. 72 states that the responsibility of Railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under secs. 151, 152 and 161 of the Indian Contract Act. This section thus clearly lays down that the relationship between the railway and the owner of the goods while the goods are in the custody of the railway is that of a bailor and a bailee. To that relationship, of course, other limitations, and statutory obligations are super-imposed by the other provisions contained in the Railway Act. Sec. 74 C lays down as to how the liability of the Railway administration is to be found out when the goods are carried at owner's risk rate. Sec. 74d provides for the burden of proving misconduct where goods which are carried at owner's risk are not delivered to the consignee or otherwise lost in transit. As the argument has centered round the implications of these two sections they are reproduced hereunder for facility of reference. "sec. 74 C (1 ). When any animals or goods are tendered to a railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate (in this Act referred to as the railway risk rate), or in the alternative at a special reduced rate (in this Act referred to as the owner's risk rate), the animals or goods shall be deemed to have been tendered to be carried at owner's risk rate, unless the sender or his agent elects in writing to pay the railway risk rate. (2) Where a sender or his agent elects in writing to pay the railway risk rate under sub-sec. (1) the railway administration shall issue a certificate to the consignor to that effect. (3) When any animals or goods are carried or are deemed to be carried at owner's risk rate, a railway administration shall not be responsible for any loss, destruction or deterioration of or damage to such goods from any cause whatsoever except upon proof that such delay, loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants. " "sec. 74 D. Notwithstanding anything contained in sec. 74 C: - (a) where the whole of a consignment of goods or the whole of any package forming part of a consignment carried at owner's risk rate is not delivered to the consignee and such non-delivery is not proved by the railway administration to have been due to any accident to the train or to fire, or (b) where, in respect of any consignment of goods or of any package which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of such consignment or package had been pilfered in transit. the railway administration shall be bound to disclose to the consignor how the consignment or package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or of any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor. " Mr. Agarwal, on the strength of the language of sec. 74d, urges that where the goods have been delivered in loose form and not in any package the railway administration is not bound to disclose in the course of the trial of the suit as to how the goods have been dealt with while they remained in the custody of the railway. He submits that it is for the owner of the goods to ask for information at the time of the delivery of the goods and where he has not done so, the burden of proving negligence or misconduct on the part of the railway shall always lie on the owner of the goods and by no stretch of reasoning could it be held to have been shifted on the railway administration. In other words, his submission is that merely on account of the non-disclosure of information about the way the goods were dealt with while in custody of the railway the court below was not justified in coming to the conclusion that negligence or misconduct on the part of the railway administration was established on that score. Mr. Agarwal placed reliance on Ram Pyari Devi Smt. vs. Union of India (1 ). In this case a learned Single Judge had occasion to construe sec. 74c (3) of the Railways and relying on it he came to the conclusion that the burden lay on the plaintiff to prove that the loss was due to the negligence or mis-conduct on the part of the railway administration. In challenging the decision under appeal it was contended on behalf of the owner of the goods before the learned Single Judge that the Railway having failed to plead that there was any loss, destruction of the goods there was no burden on the plaintiff to prove any negligence or misconduct on the part of the railway administration or of any of its servant. The learned Single Judge rejected this contention holding that in view of the judgment of the Supreme Court reported as Governor General in Council (now Union of India) vs. Musaddi Lal (2) the failure to deliver is the consequence of the loss or destruction of the goods and consequently it would not furnish a cause of action on which a suit may lie against the railway administration distinct from a cause of action for loss or destruction. In the result the learned Single Judge held that it was for the plaintiff to prove negligence or misconduct on the part of the railway administration or its servants. I have looked into the Supreme Court decision and the other cases on which the learned Judge placed reliance for his observations. In Governor General in Council (now Union of India) vs. Musaddi Lal (2), the question that fell for consideration was about the giving of a notice under sec. 77 of the Railways Act. It was in that connection that it was held that the failure to deliver goods in consequence of loss or destruction does not furnish a cause of action distinct from a cause of action for loss or destruction. In Jhabarmal vs. The Union of India (3) the other case referred to in Ram Pyari Devi's case (1) the question dealt with was much the same. In that case, therefore, the principal question that fell for consideration was about the nature of the cause of action and this is not the case before me. The case is, therefore, distinguishable though I am in agreement with the observations that in such cases it is for the plaintiff to prove misconduct or negligence of the railway administration or its servant. Now sec. 74 C (1) lays down that in cases where for the carriage of the goods two tariff rates are provided, one for the carriage of the goods at an ordinary tariff rate and the other at a special tariff rate which is referred to as the owner's risk rate the former being the railway risk rate, the presumption in the absence of anything else will be that the goods were carried at the owner's risk rate. This presumption will be waived where the sender or his agent elects in writing to pay the railway risk rate. In not applying this presumption the learned District Judge observed that the Railway had failed to prove that there were two tariff rates as contemplated by sec. 74c. I, however, notice that the learned District Judge has omitted to devote consideration to some important circumstances. The Railway receipt as also the forwarding note Ex. A/2 contain the abbreviation 'or' which means owner's risk. Then there is the railway tariff which has been published in a book form and is available for sale at Rs. 3/8/ -. It cannot be doubted that the information contained in this book is on matters of public or general interest. That being so it is permissible for a court to make use of the same in accordance with sec. 87 of the Evidence Act for obtaining the relevant information. I am, therefore, satisfied that there are two tariff rates one known as ordinary tariff rate for carrying the goods at the Railway risk rate and the other is for reduced rate at which the goods are carried at the owner's risk. In such an event where the goods are carried at the owner's risk rate, in order to succeed for a claim of damages the owner must prove negligence or misconduct on the part of the railway administration or any of its servants. Let me now turn to the implications of sec. 74d. Sec. 74d opens with a non-obstante clause and lays down that notwithstanding anything contained in sec. 74g where the whole of a consignment of the goods or the whole of any package forming part of the consignment which is carried at owner's risk rate is not delivered to the consignee and where the Railways are not able to establish non-delivery on account of the specified causes such as due to any accident to the trian or on account of fire, then the liability of the Railway may arise under the stated circumstances. Sub-clause (a), according to Mr. Agarwal applies where it is the case of non-delivery of the whole consignment of the goods or of a whole package forming part of a consignment. This is not the case before me. Sub-clause (b) of sec. 74d lays down that where it is pointed out to the Railway administration on or before delivery of any part of the consignment of package that the same has been pilfered with in transit, the Railway administration shall be bound to disclose to the consignor how the consignment of the package was dealt with throughout the time it was in its possession or control and if as a result of the Railway administration it cannot fairly be inferred then the burden of proving such negligence or misconduct shall lie on the consignor. Mr. Agarwal, on the strength of sec. 74d (b) submits that this exhausts the rule about the burden of proof and it is only in such cases as are covered by sec. 74d that the burden will lie on the Railway administration to prove want of negligence or misconduct on its part. In all other cases, according to him, where the goods are despatched at the owner's risk the burden will always lie on the owner of the goods to prove affirmatively the negligence or misconduct on the part of the Railway administration. No direct authority bearing on the question could, however, be brought to my notice. As I have observed above, sec. 72 lays down the jural relationship between the Railway as carrier of goods and the owner to be one of bailment. Certain limitations and obligations no doubt attach to that relationship and, therefore, one has always to see how far the other provisions of the Act affect or alter this plain relationship. To my mind, whereas it is for the claimant to establish negligence or misconduct on the part of the Railway and the burden is thus on him, these various sections do not point out that the burden shall ever remain fastened on the plaintiff's shoulders in the entire process of adducing evidence for discharging the burden. Unlike that in a criminal case it cannot be predicated in the absence of any clear provision to that effect that the burden of proving negligence or misconduct on the part of the Railway that initially lies on the plaintiff cannot under any circumstances of a case be taken to have been shifted on to the other side. Sec. 74c or sec. 74d do not throw much light on this aspect of the matter and for it we will have to be guided by the principles enshrined in the law of Evidence. As to when the burden of a particular issue will be taken to have shifted from one side to the other will, by and large, depend on the facts and circumstances of that case and no hard and fast formula can be spelt out in this connection. Starting on this premise I have examined the circumstances that have been brought out in the present case. The striking circumstance though it may not be taken to be by any means decisive is the dominant fact that there was a short delivery and the shortage occurred while the goods were in the custody of the Railway administration. Then the other circumstance is that the goods were delivered late. Thirdly they were delivered in two instalments and the distance of time between the first instalment and the second instalment was about three weeks, which by no logic could be said to be a reasonable period. This shows that something out of the ordinary must have happened with these goods. It is quite normal that when goods are transhipped from broad gauge to metre-guage line the consignment which was hither to at the time of transhipment in a bigger wagon has to be put in wagons of smaller capacity. This may necessitate putting a consignment in more than one wagon. When it is delivered at the point of transhipment in one wagon, in appropriate cases it may have to be divided in more than two wagons even. Therefore, one cannot be sure that in the present case the consignment was divided only in two wagons at the point of transhipment. It cannot be denied or disputed that while the goods remained in the custody of the Railway administration they alone were in a position to know as to how the goods were dealt with or what had happened to the goods. On 25. 8. 53, certain interrogatories were submitted by the plaintiffs to the defendant Railway for eliciting information about these goods with a view to knowing the circumstance that may have occasioned the short deliverey. On 12. 11. 53, the learned trial Judge passed a detailed order calling upon the defendant Railway to give a reply to these interrogatories. For well nigh four years there was no reply to these interrogatories and ultimately in January, 1957, a reply was submitted expressing inability to give the required information as the record was destroyed. Even then in this reply it was not clarified as to when the record was destroyed. No particulars whatsoever were furnished about the loss of the record. It is common knowledge that in good administrations and departments and I am sure, Railways have the credit of being a good administration, whenever records are weeded out entries to that effect are made in some register or record to show as to what were the papers that were weeded out or destroyed. Therefore, it would not have been difficult for the administration to find out as to when these papers were really destroyed. The reply to interrogatories was given almost after four years, as I have observed above, and it could very well be that this record may have disappeared after the court called upon the administration to reply to the interrogatories. Mr. Agarawal, however, could not produce before me any standing orders of the Western Railway about the weeding of the records. He, however, brought to my notice a provision in the Manual of the erstwhile Jodhpur Railway where under it is provided that records are to be preserved for a period of 24 months in most cases. Of course this lays down the period as to for what time the records have to be preserved, but it does not say as to in what manner they are to be destroyed and with whose authority and after following what procedure. Therefore, as I have observed above, the principles of the dealing with evidence and those about burden of proof will govern such a matter and sec. 74d of the Railways Act does not lay down any rule to the contrary. The court, in the circumstances, will be entitled to appraise all the relevant circumstances of the case including the non-disclosure of relevant information by the administration when the same was demanded of it. Thus, the learned District Judge cannot be said to be wrong when he proceeded to take due note of the non-production of the relevant record on failure on the part of the defendant to make a disclosure as to how the consignment was dealt with while it was in its custody. Therefore, though I do not endorse the conclusion of the learned District Judge to the effect that it was not necessary for the plaintiff to prove negligence or misconduct on the part of the Railway administration in case of short delivery of goods. , on a consideration of all the relevant circumstances brought out in the case, I am inclined to come to the conclusion that the plaintiff by bringing out the circumstances which I have discussed above has adequately discharged the burden that was on him at the outset. In the face of these circumstances, to my mind, it was for the defendant to show that there had been no negligence or misconduct in dealing with the goods while they were in its custody.
(3.) I may now briefly refer to some of the cases which reinforce my conclusions. In Dwarka Nath Rai Mohan Chaudhuri vs. Rivers Steam Navigation Co. Ltd. , (4) their lordships of the Privy Council considered the import of sec. 101 of the Evidence Act regarding the burden of proof. As regards the want of due care and attention on carrier's part their Lordships observed as follows: - "where goods have been consigned to carrier and burnt and the question is whether the carrier took due care in respect thereof as a bailee ought to, the burden of proving the want of due diligence, or (expressing it otherwise) the negligence of the servants of the carrier is on the consignee. It may be for the carrier to lay the materials before the Court; but it remains for the consignee to satisfy the court that the true inference from these materials is that the carriers servants have not shown due care, skill and nerve. " Thus the burden of proving want of due care on the part of the Railway is on the owner of the goods, but at the same time it is the duty of the Railway to place before the Court the materials showing how the consignment was dealt with. It will be then for the plaintiff to show in the light of the material that is before the court as to whether a case of negligence or misconduct on the part of the Railway is or is not made out. Following Dwarka Nath Rai Mohan Chaudhuri's case (4), the learned Judge observed in National Sudeshi Stores vs. The Governor General in Council (5) as follows: - "the defendant failed to place before the Court all the necessary facts exclusively within the knowledge of the railway as to how the bale was dealt with and the true inference from what material there was on the record was that the servants of the railway had not shown due care with regard to the consignment in suit. " In Firm Radhakishan Bhagwati Prasad Vs. Union of India (6), the principles underlying secs. 101 to 106 of the Evidence Act were applied in dealing with a case of non-delivery of goods and the learned Judges observed as follows: - "a railway administration, under sec. 72, has the responsibility of a bailee if that responsibility is not reduced by any valid contract. If the liability of a bailee is sought to be enforced under the Railways Act, the plaintiffs have to show first that the administration was the bailee, The onus to prove the fact would be on them. It will be for the bailee to prove that he took as much care of the goods as any prudent man would do in case of similar goods. " In considering the implication of sec. 72 of the Railways Act, Naik J. , of the Nagpur High Court observed in Asaram Gangaram Vs. Union of India, New Delhi (7) as follows: - "it is no doubt true that it is always for the plaintiff to prove that the loss was caused by the neglect or negligence of the Railway Administration. But when the Court has the evidence that the goods had deteriorated while in the custody of the Railway Administration there is a prima facie case of negligence for the Railway Administration to answer. " I am, therefore, of the opinion that the learned District Judge has rightly taken note of the circumstance furnished by the fact that the Railway had failed to produce the required documents which would have thrown light on the question as to how the goods were dealt with while they were under the custody of the Railway. He has also rightly taken note of the circumstance that the goods were delivered short. I am, therefore, not persuaded to come to a contrary conclusion. ;