SURAT COTTON SPINNING AND WEAVING MILLS, LTD Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Bombay, dated 21 December 1934, which dismissed the appellants' suit, in reversal of a decree of the First Class Subordinate Judge of Surat, dated 30 April 1928, under which the appellants obtained decree for the sum of Rs. 25,820 with future interest at 6 per cent. On 7 April 1925, the appellants consigned 58 bales of cotton piecegoods to the Bombay Baroda and Central India Railway Company at Surat, for carriage to Sealdah on the Eastern Bengal Railway, a Government railway, on the terms of Risk-note B. In order to reach the system of the Eastern Bengal Railway, the consignment had to be carried for a considerable distance over the system of the respondent's East Indian Railway, which may be referred to as the E. I. Railway. Risk-note B is in the form approved by the Governor-General in Council under S. 72 (2) (b) of the Indian Railways Act, 1890, for use when the goods are despatched at a "special reduced" or "owner's risk" rate. In the present case the material part of the Risk-note is as follows :

(2.) Whereas consignment of 58 bales F. P. C. P. Goods I. B. tendered by us as per forwarding Order No. 666 of this date for despatch by the B. B. and C. I. Railway Administration to Sealdah station, and for which we have received Railway Receipt No. 942 of same date is charged at a special reduced rate instead of at the ordinary tariff rate chargeable for such consignment, we the undersigned do in consideration of such lower charge agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of or damage to the said consignment from any cause whatever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct of the Railway Administration's servants; Provided that in the following cases: (a) Non-delivery of the whole of the said consignment or of the whole of one or more packages forming part of the said consignment packed in accordance with the instruction laid down in the Tariff or where there are no such instructions protected otherwise than by paper or other packing readily removable by hand and fully addressed where such non-delivery is not due to accidents to trains or to fire. (b) Pilferage from a package or packages forming part of the said consignment properly packed as in (a) when such pilferage is pointed out to the servants of the Railway Administration on or before delivery, the railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and if necessary to give evidence thereof before the consignor is called upon to prove misconduct but if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence the burden of proving such misconduct shall lie upon the consignor. This agreement shall be deemed to be made separately with all Railway Administrations or transport agents or other persons who shall be carriers for any portion of the transit.

(3.) Of the 58 bales consigned, only 15 were delivered to the consignee at Sealdah, the remaining 43 bales having been stolen while in course of transit on the E. I. Railway. The present suit was filed on 20 March 1926, by the appellants, claiming damages for the non- delivery of the 43 bales. No question is raised in the appeal as to the amount of the damages assessed by the Subordinate Judge, but the issue is as to the liability of the respondent, in view of the terms of Risk-note B, and, in particular, of the terms of the proviso, as the present case comes within case (a) of the proviso. It will be convenient to consider first the proper construction of the proviso, which contains two distinct provisions. The first portion of the proviso lays an obligation of disclosure on the Railway Administration the nature and extent of which it will be necessary to consider. The second portion of the proviso assumes that the obligation of disclosure including the giving of the necessary evidence, has been discharged, and, impliedly, directs consideration of the material so disclosed before the consignor is relegated to the original burden of proof of misconduct laid upon him; if such consideration leads to the fair inference of misconduct, the Railway Administration will be liable; otherwise, the proviso will cease to operate, and the consignor will be relegated to his original burden of proof of misconduct. No question of misconduct of the Railway Administration, as distinct from its servants, arises in the present case, but it may be noticed that reference to such misconduct occurs only in the second portion of the proviso, and does not occur in the original obligation of proof laid upon the consignor. Their Lordships reserve any opinion as to the construction of this bit of imperfect draughtsmanship. The first portion of the proviso provides that the Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and, if necessary, to give evidence thereof, before the consignor is called upon to prove misconduct.