UNION OF INDIA UOI Vs. MUNAGALA KRISHNAYYA

JUDGEMENT

(1.) This is an appeal brought by the Union of India, represented by the General Manager, Eastern Railways, Calcutta and the Southern Railway, Madras, (hereinafter referred to as the "Railway Administration") against the judgment and decree of the Subordinate Judge, Narasaraopet, in O. Section No. 114 of 1952 decreeing a sum of Rs. 4293/ (being the value of 86 bundles of dry chilies not delivered to the plaintiff) with interest thereon at 6 p.c. from 10101952 till the date of realisation. The respondents herein consigned 214 bundles of chillies to Shalimar under R/R No. 55881. Only 126 bundles were delivered and a shortage certificate bearing No. 0241 for 86 bales was given by the Superintendent, Shalimar Goods-shed on 10101951. The respondents herein filed the suit for recovery of Rs. 6,000 on the ground that the shortage was due to willful negligence or misconduct of the Railway Administration. The Railway Administration contended that the loss of 86 bales was due to a running train theft over which the Railway Administration had no control and that therefore there was no negligence or misconduct on their part. The subordinate Judge of Narasaraopet, in a careful judgment, held that the loss was occasioned by the negligence of the Railway Administration and its servants and passed a decree for Rs. 4293/. The Railway Administration has consequently preferred the appeal.

(2.) The evidence was carefully analysed and discussed by the Subordinate Judge in paragraph 6 of the judgment. As I agree with the conclusion of the Subordinate Judge, it is unnecessary to set out in detail the entire evidence. I shall however, refer to the material facts for the purpose of ascertaining whether theft had taken place as a result of the negligence or misconduct of the Railway Administration. The evidence of the Guard examined as D. W. 10 and the Assistant Station Master of Contai Road Station as D. Ws. 4 and 9 discloses that the goods train in which the chilly bales were consigned arrived at Contai Road Station at 1128 p.m., and that it left the Station at 122 a.m. The arrival of the train at the Station was late by 54 minutes. The train stopped for 81 minutes more than the scheduled time. The reason given by the Guard for the long stay was (1) that an express train had to pass; (2) that six empty wagons had to be attached to the goods train; and (3) that the vacuum brake which gave trouble had to be set right. He deposed that soon after the Express train passed, he went on the off side up to the Engine checking seals etc.. and that he found them in proper condition. According to his evidence when he walked along the train with his torch at Binapur Station he found two wagons doors in open condition. He informed the Assistant Station Master and got the wagons resealed. At Kharagpur, it was found that 86 bales of chillies were missing. It is in evidence that within a few hours after the goods train left Contai Road Station, another train called "South Coal Special" came to Contai Road Station from Binapur side. The guard of the train examined as D. W. 5 noticed within two miles from Contai Road Station nine bags of chillies lying on either side of the line. He stopped his train, got them picked up by the line patrolman, carried them to Contai Road Station and delivered them to the Assistant Station Master. It is therefore clear that the 86 bales of chillies must have been stolen either at Contai Road Station where the train stopped for 115 minutes or partly at Contai Road Station and partly while the train was in motion between Contai Road Station and Binapur, As nine bales were discovered at a distance of two miles from Contai Road Station, part of the bales must have been removed or thrown out of the wagon while the train was in motion, The theory put forward by the Railway Administration that the thieves must have got into the train while the train was In motion and removed or stolen the bales during that period appears to he improbable. The guard stated that the train was running at a speed of 25 miles per hour. The distance of 18 miles between Contai Road Station and Binapur was covered within 48 minutes. The doors of the wagon which had to be tampered with and opened were not like doors of a passenger bogey with convenient handles. They had bolts and rivets and to unloose them great force has to be used. As the holts and rivets are higher it is not possible to reach them from the ground level, When the train was moving at a Speed of 25 miles, it is not possible for even expert thieves to board the train and remove the seals and rivets while in motion. The fact that 9 bales were thrown about two miles away at the railway tract indicates that the thieves must have got into the train even at Contai Road Station. It is admitted by the Guard (D. W. 10) in answer to a question put by the Court that

(3.) For the purpose of deciding the question whether the loss took place as a result of tile negligence or misconduct of the Railway Administration, it is necessary to refer to the terms of Section 74-D of the Indian Railways Act, which according to both sides applies to the case. Section 74-D runs as follows: