Case: Union of India Vs. Brijlal Purshottamdas

1. On March 28, 1951 the respondent consigned 10 bales of staple fibre yarn to the Southern Railway at Pudukad for carriage to Shalimar on the Bengal Nagpur Railway at the owners risk rate. Of the 10 bales consigned, only 5 bales were delivered to the respondent. The respondent filed Suit No. 7 of 1952 against the Union of India representing the two railway administrations claiming damages forof 5 bales. On March 28, 1951 the respondent consigned 10 bales of staple fibre yarn to Podnur on the Southern Railway for carriage to Shalimar on the Bengal Nagpur Railway at the owners risk rate. Of the 10 bales consigned, only 1 bale was delivered to the respondent. The respondent filed suit No. 6 of 1952 against the Union of India, representing the two railway administrations claimingof 9 bales. The two courts concurrently held that the loss was due to negligence or misconduct of the servants of the Bengal Nagpur Railway administration. The Trial Court held that the notices under Section 77 of the Indian Railways Act, 1890 and Section 80 of the Code of Civil Procedure were not duly served and dismissed the suits. The plaintiff filed two appeals. Before the High Court the Union of India conceded that the notices were duly served on the General Manager, Southern Railway and the plaintiff elected to ask for a decree against the Southern Railway only. The High Court held that the Southern Railway to which the goods were delivered by the consignor was liable to pay compensation for the loss, though the loss was due to the negligence or misconduct of the Bengal Nagpur Railway. The High Court allowed the appeals and decreed the suits. The present appeals have been filed on certificates granted by the High Court.

Reasoning: The Section clearly contemplates that on this matter the administration should submit its evidence first at the trial, and it is only when negligence or misconduct cannot fairly be inferred from such evidence that the burden of proving the negligence or misconduct shifts to the consignor.In the present case 14 packages were not delivered to the respondent and suchwas not due to any accident to the train or to fire. The case therefore fell within Clause (a) of Section 74 D. The packages were carried by the Southern Railway and the Bengal Nagpur Railway administrations and the two administrations became bound to disclose to the respondent how the packages were dealt with throughout the time they were in their possession or control. The Union of India representing both the administrations filed separate written statements in the two suits. It made a fuller and more detailed disclosure in the written statement filed in suit No. 6 of 1952. The written statement did not mention any transhipment at Raipuram (Madras) but at the trial it was proved that the consignments were transhipped at Raipuram in wagon No. 37933. The wagon was carried upto Waltair where the Southern Railways ended. Thereafter the wagon was carried over the Bengal Nagpur Railways.It is surprising that after having made this disclosure the appellant did not call the guard or any other witness from Contai Road or Bakhrabad. The guard was present in Court at the hearing of the case. At the close of the evidence an application for adjournment was moved by the appellant stating that the rough journal book of the guard was misled and some time was necessary to trace it. The adjournment was granted. On the adjourned date the guard was not examined nor was the book produced and no explanation was given for this omission. Having regard to the disclosure made in the written statement, it was for the appellant to prove that it had kept proper watch over the wagon while the train was detained at Contai Road and had taken proper care of the packages lying on the track. Three packages were later recovered but no evidence was led to prove that they were offered to the respondent. The appellant called witnesses from Raipuram, Bhadrak and Kharagpur. The witness from Raipuram found wagon No. 37933 to be in good condition. No witness from Vizianagram was called. The witness from Bhadrak checked the wagon and found the seal intact. The written statement shows that the seal was checked at Danton. Danton is about 126 kilometers away from Bhadrak. No witness was called to prove that the seal was found intact at Danton. The witnesses from Kharagpur found that the wagon was without seal and rivet on one side. Had the wagon been properly fastened and secured it is not likely that the packages would be so easily taken out at Contai Road. From the disclosure made by the appellant, the negligence of the servants of the Bengal Nagpur Railway administration may fairly be inferred. The administration was negligent (i) in not properly riveting the wagon; (ii) in not keeping watch over the train at Contai Road; (iii) in not taking proper care of the packages lying on the track between Contai Road and Bakhrabad; and (iv) in not delivering the packages subsequently recovered by it to the consignor.There was never any doubt that the railway company which contracted to carry goods partly over its own railway and partly over the railways of other carriers was responsible for the goods for the whole journey unless it limited its liability by agreement (See Muschamp v. Lancaster Etc., Junction Rly. Co.), (1841) 8 M and W 421 = 151 ER l103. The only doubt was about the responsibility of the other companies over whose railway the goods were carried. Before Section 80 was enacted there was elaborate case law on the question whether they could be held liable in tort or by recourse to the doctrine of agency or partnership. Section 80 now places the liability of all the railway administrations concerned on a firm statutory footing.In view of Sections 74C (3) and 74D the consignor can not recover compensation for loss except upon proof that the loss was due to the negligence or misconduct of an administration. If loss due to such negligence or misconduct is proved, he may under Section 80 sue the administration to which the goods were delivered by him or the administration on whose railway the loss occurred. Section 74E does not enlarge the liability of the administration to which the consignor did not deliver the goods and such administration can be sued only if the loss occurred on its railway.Accordingly, in Union of India v. Shamsuddin Waizuddin, AIR 1958 Pat 575   the Patna High Court held that where the goods had been delivered to the Mysore railway for carriage to a station on the Eastern Railway, the latter was not made on other railways. This decision was followed in Chandrasekharam v. Union of India, AIR 1960 Orissa 100.Likewise Section 74E does not restrict the liability imposed by Section 80 on the administration to which the goods were delivered by the consignor. That administration is liable to be sued under Section 80 for the loss whether or not the loss occurred on the railway of another administration.It follows that the High Court rightly decreed the suits.