Case: Shiv Nath Rai Ram Dhari & Others Vs. Union of India


Decision:
0[ds]The view taken in the latter case, therefore, suggests that an omission to abide by a rule of the railway administration would be comprised within the expression misconduct6. If the argument advanced on behalf of the appellants is accepted the result would be that even where a risk note in form B has been executed by the consignor for obtaining the benefit of specially reduced rates, the railway administration would still continue to be liable under S. 151 of the Contract Act as a bailee for loss, destruction or damage to the consignment covered by such a note.n (2) of S. 72, however, specifically provides for the limitation of this very liability. It is, therefore, open to grave doubt whether even after the execution of a risk note such as the one in Form B which was clearly intended to limit the liability of a railway, administration under S. 151 of the Indian Contract Act it would still continue to exist and that the only benefit accruing to the administration would be the shifting of the burden of proof on the consignees. On the other hand it is also a matter for consideration, whether the breach by the servants of a railway administration of rules or instructions which they were expected to obey would be within the expression "misconduct" because the breach is not of any duty owed either by the administration of by its servants to the consignor. It will however, not serve any useful purpose for us to resolve the conflict because under the amended provision, i.e. Ss. 73 and 74 a railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration. ory unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods unless they were carried at the owners risk. Further there is no provision in the Act as amended for the execution of a risk note like the one in form B. We would, therefore, proceed in this case on the assumption that despite the execution of the risk note the railway administration was bound to take as much care of the consignments as it would have of its own goods7. Even so, we cannot lose sight of the fact that we must ascertain the amount of care which it would have been possible for the railway administration to take in the particular circumstances which obtained in, 1947, in this part of the country. What was happening in this part of the country during this period is a matter of which we can take judicial notice. Apart from that, that has been deposed to by witnesses including Evans who was then the Deputy Controller of Train Governments at AgraWhat the High Court has said is based upon evidence and cannot be permitted to be questioned in these appeals8. It has also been found by the High Court, relying upon the evidence of Evans that there was congestion in the yard at Agra because the conditions then prevailing made normal running of trains impossible. It is also clear from his evidence that there was congestion in the yards at Delhi. It is true that Evans had no personal knowledge of the position in Delhi in the sense that he did not visit Delhi during the relevant period. But is was his duty as Deputy Controller of Movements to be always in touch with that station, amongst others, so as to facilitate his work. Information is conveyed between two stations by telephone or by telegrams and it is the peculiar duty of the Controller of Movements to seek information regarding the position in the yards of various stations to which he has to move the trains. Whether the information received by him was correct or not is irrelevant, it is enough that on that information he so directed the movement of the trains that a congestion in fact occurred at Agra and of this he had personal knowledge. He has also said that the position at Mathura was similar, besides the fact that according to his information communal disturbances were raging there. The Administration, therefore, had to find some places at which it could stable wagons which could not be kept at Agra and for which there was no special priority, as for instance, wagons not containing perishable goods or dangerous or inflammable goods or goods such as food which were urgently required for the benefit of the community at large. It is an admitted fact that no special watch and ward arrangements, in the sense of providing a separate staff for the purpose of guarding stationary trains, obtained at wayside stations. if, therefore, the administration stabled a train containing goods of the kind which the wagons forming N. 35 down contained at Asaoti, it cannot be said to have acted in a reckless or even negligent manner. Even if the goods had belonged to the administration itself, it would, in the circumstances, have been forced to stable the train at Asaoti or other similar wayside station even though there might have been no watch and ward there. It would appear that where no special watch and ward establishment exists it is the duty of the normal station staff to depute some of their men for guarding a stabled train. if the administration or the station staff thought that this was sufficient to protect the wagons which, it may be mentioned, were properly rivetted, locked and sealed, it cannot be said to have acted even in a negligent manner, much less in a reckless manner. There is nothing to indicate that there were riots at Asaoti and indeed it is the appellants case that there were no disturbances at Asaoti itself. If this is so, then the authorities at Jhansi under whom the Deputy Controller at Agra was working and the Deputy Controller himself who allowed the train to proceed to Asaoti for being stabled there could not be charged with negligence10. The first three of these instructions are obviously not applicable to wayside stationsBut the last one may apply to them. Normally, therefore, according to the last instruction, if applicable, watch and ward duties at Asaoti had to be performed only by the menial staff. We have it, however, in the evidence of the Station Master, Asaoti, that after an at attempt was made to break into one of the wagons on September 1, 1947 he had telegraphically made a request to the appropriate authorities for sending a complement of watch and ward men to AsaotiApart from the fact that no rule or even instruction was cited at the bar the statement of the Station Master that he had appealed for deputation of watch and ward staff is not mentioned in the diary, maintained by him and by the Assistant Station Master. Assuming that he did make efforts, as deposed to by him, for deputation of watch and ward staff, it seems to us that it could not, reasonably have been possible for the authorities either at Agra or at Jhansi, even if they got his telegram, in view of the disturbed conditions and the resulting confusion which obtained at that time to spare any man for being sent to wayside stations. It was far more important for them to utilise all the available manpower for performing watch and ward duties at important stations where the yards were full of a large number of wagons containing commercial and other valuable consignments. In times of unusual stress and pressure a person whose property lying at a large number of places is exposed to looting or pilfering at the hands of lawless elements, professional wagon breakers and the like, that person would naturally concentrate more on guarding those places at which the danger is greater or the total value of the goods is greater than those where it is less. It is in this broad aspect that we must consider the duty of care which rested on the railway administration at the relevant time. Looking at it that way it would not be reasonable to conclude that the railway administration or its staff were guilty of negligence. It could perhaps be said that the administration and the staff at Asaoti with the knowledge of what took place at Asaoti on the 4th September did nothing. But even so, it would not be right to say that they were guilty of negligence. Indeed, there was nothing which the administration itself could do and so far as the staff at Asaoti was concerned, bearing in mind the fact that a large number of persons had taken part in breaking open the wagons and looting goods contained in them, the meagre staff at Asaoti could possibly have not stopped them from proceeding with their nefarious activities. Indeed, it is in evidence that some members of the staff eventually ran away for fear of their lives. This would show the state of things which then prevailed at Asaoti. The fear entertained by them could not be said to be baseless and though those who ran away from the place acted in breach of their duty to the railway administration, their action cannot be characterised as negligent. What is negligence must necessarily be judged in the lightof the circumstances obtaining at that time. Indeed, the duty of care which S. 151 of the Contract Act casts upon a bailee is not an unlimited one and has to be ascertained with reference to the circumstances obtaining at the time when the loss, deterioration or damage to the goods bailed occurred. We agree with the High Court, therefore, that in the context of the conditions obtaining in this area at the relevant time, the railway administration is not liable for the loss of the consignments from wagons shown to have been broken openWe will keep the diary out of our consideration. There is, however, in the first place the evidence of the Station Master and the Assistant Station Master to the effect that the wagons had been broken open. This evidence was no doubt, rejected by the trial Court but was accepted by the High Court and in our opinion the High Court was justified in accepting this evidence particularly because there is corroboration to their evidence12. Then there is the evidence of D. W. 1 Pannalal, Head Trains Clerk, Agra. He has stated that the wagons which were later found to have been broken open at Asaoti were received on different dates at Agra and that every one of those wagons was then duly rivetted and sealed. He has also deposed that when these wagons were dispatched on August 28 by N. 35 Down they were "intact and in the same condition in which they were, when they were received." There is nothing vague in his evidence, which sets out the numbers of each of those wagons. In addition to this there is the evidence of B. P. Pande, D. W. 6, Asstt. District Commercial Inspector, G. I. P. Railway who was posted at Agra at the relevant time. He says that he had made a list of the property looted and also of the property not looted from the wagons which had been broken into. He inspected these wagons between September 27 and 29th and he has stated that some of those wagons had been completely looted while some were looted partly and many others were intactHe had brought with him a list made by him but the trial Court refused to permit its production in evidence on the ground that it had not been relied on earlier. In our opinion the trial Court went wholly wrong in refusing to admit this document. In any case there is the evidence of this person and we see no reason for not accepting it. We are satisfied that the High Court was perfectly right in holding that the consignments were lost as a result of lootingIn our opinion, there is no substance in his argument. It cannot be assumed that because the other consignments were lost as a result of looting even this one which was not delivered could be said to have been lost through the same circumstance, that is, by reason of its being looted. Again, there is nothing to show that the other wagons did not contain turmeric.