S. Barman, J.
1. The plaintiff is the petitioner in this civil revision directed against the judgment of the learned Subordinate Judge, Berhampur, exercising S.C.C. powers dismissing the suil against the defendant No. 1 and ex parte against defendants Nos. 2 to 4 in a S.C.C. Suit No. 256 of 1956 for damages alleged to have been caused to certain goods, -- the total amount of damages claimed being Rs. 173/5/-.
2. The matter arose in these circumstances: On 22-9-1955 a, certain quantity of cotton piece goods worth over Rs. 1,015/- was consigned by the consignor, having been despatched from Ahmedabad on Western Railway for delivery to the plaintiff at Chatrapur on South Eastern Railway. On (15-10-1955 the goods reached Chatrapur Railway Station and are alleged to have been kept in the open platfrom there at the Station. On 9-12-1955 the plaintiff took delivery of the goods. At the time of taking delivery the plaintiff discovered the damage after opening the bale and found 150 pairs of Saris had been damaged, the total amount of damage being Rs. 173/5/- as aforesaid.
On 27-1-1956 notice under Section 77 of the Railways Act is stated to have been given but the learned Subordinate Judge did not believe the plaintiff's story that notice under Section 77 was given to defendants Nos. 2 to 4. It is however in evidence that the plaintiff preferred claim in respect of the loss in question under Section 77 to the defendant No. 1 on 27-1-1956 (Ext. 3). There is no evidence to show that the claim was preferred to the other defendants. On 24-8-1956 notice under Section 80 of the Civil Procedure Code was also given (Ext. 4). On 14-12-1956 the present suit was filed being suit No. 256 of 1956 in the Court of the Subordinate Judge of Ganjam.
In the written statement, the defence taken was a simple denial of the plaintiff's alleged claim for damages and it was pleaded in defence that there was no carelessness nor any negligence on the part of the defendants. At the trial before the learned Subordinate Judge, the plaintiff called two witnesses including P.W. 2 the Gumasta of the plaintiff who had been to the Chatrapur Railway Station and saw the goods having been drenched in rain on the platform. No witness was called on behalf of the defence to contradict the plaintiff's witnesses. The learned Subordinate Judge, apparently not being satisfied with the plaintiff's evidence as to the alleged claim for damages, dismissed the suit as aforesaid. Hence this revision.
3. Mr. H. Sen, learned counsel appearing for the plaintiff-petitioner, contended that there was unchallenged evidence adduced on behalf of the plaintiff. In fact, there was no specific denial made on behalf of the defendants that the goods were drenched. The circumstance that the Station master of Chatrapur Railway Station was not examined was commented upon. The learned counsel contended that there was gross negligence and misconduct on the part of the employees of the railway by reason of which the plaintiff suffered the damages as aforesaid. It was also argued on behalf of the plaintiff that the learned Subordinate Judge was wrong in holding that the plaintiff's case was an after-thought for which finding there was no evidence in support thereof.
In the notice under Section 77 of the Railways Act (Ext. 3) it was alleged that the damage had been caused by water on account of misconduct, irregular administration and negligence of railway authorities. In the notice under Section 80 Civil Procedure Code (Ext. 4); it was also alleged that the damage was on account of water. The plaintiff also relied on Ext, 5 being the true copy of the Invoice showing the basis on which the claim was made. Then strong reliance was also placed upon the damage certificate (Ext. 1) showing that the damage had been caused by cyclonic rain water.
It appears that although the goods had arrived on 15-10-1955 at the destination at Chatrapur, it was not until about two months thereafter on 9-12-1955 that the plaintiff took delivery of the goods. In fact the Railway Receipt was not taken delivery of by the plaintiff from the State Bank of India until long after 15-10-1955. The plaintiff failed to prove that the consignment reached Chatrapur Station in good condition and that the damage in question was caused while it was lying in that Station.
4. The defendant's case is that by reason of Rule 31 (2) of the General Rules for Acceptance, Carriage and Delivery of Goods (vide Goods Tariff No. 29 in force from 1-6-1954) in respect of goods not removed from railway premises at station of destination within a reasonable time, the railway is not liable in any respect for any loss, destruction of or damage to such goods arising from whatever cause notwithstanding that the railway may have warehouse or otherwise kept the goods and notwithstanding that the railway shall be entitled to be paid the authorised charges for goods so left on their premises.
The said rule also provides that normally, the free time allowed for demurrage and wharfage on railway should be considered as reasonable time for this purpose. Mr. H. Sen, however, contended that this rule purported to have been made under Section 47 of the Railways Act is ultra vires because it had cut down the liability of the railway and that the responsibility of a railway administration as a carrier of animals and goods under Section 72 of the Railways Act cannot be over-ridden by the rules.
The learned subordinate Judge on this point held that the Railway is protected by the said Rule 31 (2) of the General Rules. Mr. H. Sen, however, disputed the correctness of this finding on the ground! that Rule 31(2) is ultra vires the Act. In support of this contention the learned counsel relied on several decisions. The Lahore High Court in Governor-General in Council v. Jagan Nath, AIR 1943 Lah 244 has held that the condition requiring the goods shall be removed from the Railway premises within a certain period after which demurrage and wharfage will be charged may be a valid condition relating to the delivery but the further, condition laid down in Rule 28 (2) (corresponding to the present Rule 31(2)), that the railway is not liable in respect of any loss, destruction, deterioration or damage to such goods arising from whatever causes if the goods are not removed within the time allowed free of demurrage and wharfage is not a condition affecting delivery.
It is a condition exempting the railway from its liability for such loss. The Lahore High Court held that such a condition cannot be held to be valid because it not only exceeds the rule making power of the railway but is also inconsistent with the liability imposed on the railway under Section 72 of the Railways Act. No doubt, a bailee may contract himself out of the obligation under Section 151, Contract Act, but it is not open to him to put an end to his obligation by a rule made by himself which also is beyond his rule-making power. Under General Law the railway is clearly liable as a bailee for loss of goods.
The Lahore case was decided before the amendment of the Railways Act by Act LV1 of 1949 which omitted Sub-section (2) of Section 72 of the parent Act. Under Sub-section (2), which was omitted, railway could limit its responsibility only by an agreement in writing signed by or on behalf of the person sending the goods and is otherwise in a form approved by the Central Government which was known as risk note. In the Lahore case, it did not appear from the record that any risk note was taken.
Therefore, the condition in Rule 28(2), purporting to exempt the railway from its liability for loss was held by the Lahore High Court to be not valid because it was found to be inconsistent with the liability imposed on the railway under the old Section 72 with Sub-section (2) which has since been omitted, as aforesaid. That apart, in the Lahore case it was not clear under what authority Rule 28(2) was framed and it was contended there that the Tariff rules required the consent of the Governor General in Council and publication in the Gazette of India and that these conditions had not been fulfilled.
Thus considered the Lahore case so distinguishable on the facts, from the present case does not support the plaintiff's contention. The Calcutta High Court in Chhatumull Chowthmull v. Union of India, AIR 1955 Cal 264 expressed that where the contractor's representative fails to take delivery within a reasonable time after it is ready for delivery by the carrier, the liability of the carrier ceases. But the Court should consider the further question whether after the liability of the carrier strictly so-called has ceased, there has or has not arisen liability on a further contract of bailment arising from the fact that the railway continues to keep the goods.
In this respect the provisions of Section 47(1) (f) Railways Act, have to b-s noticed along with the fact that it was under the rules framed for regulating the terms and conditions on which the Railway Administration agreed to warehouse or retain goods on behalf of the consignor or owner on payment of certain charges. As in that particular case wharfage charges were recovered from the consignor at the time when delivery of goods was taken, the railway was liable under Section 152 Contract Act as bailee on a contract of bailment for warehousing the goods and was therefore liable for the loss caused by the goods having been damaged while so warehoused.
Jn the Calcutta case the circumstance, -- that the goods were subsequently warehoused by the railway in their godown, -- made the railway responsible as bailee in respect of the goods; and thus the Calcutta decision is distinguishable from the present case. Mr. H. Sen also relied on a decision of the Nagpur High Court in Union of India v. Firm of Parikh Shankarlal Jethmal, AIR 1956 Nag 255 where the facts were these. The plaintiff sued the Railway Administration for damages for the loss sustained by them in respect of the firm which gutted the railway goods-shed at Khandwa on May 10. The consignments had arrived on various dates between February 25 and May 7, and reliance was placed on Rule 29(2) published in Goods Tariff Part 1-A No. 8. The railway contended that the consignors having delayed in applying for delivery were not entitled to damages. On the other, hand the consignors contended that the aforesaid Rule was ultra vires and that it could not cut down the liability of the railway which arose under Section 72 of the Railways Act. In the judgment tile Nagpur High Court did not decide the question of ultra, vires. It decided on merits of the case on evidence on the assumption that Rule 29(2) is not ultra vires.
The Madhya Pradesh High Court in Union of India v. Shantilal Nanchand Jain, AIR 1957 Madh Pra 192 had occasion to consider this question in. the context of facts which, shortly stated were these The plaintiff booked a parcel of cotton Sarees at Barhanpur on February 27, for delivery to self at Kurooi Kathora. The consignment reached Kurooi Kathora on March 3 and was deposited in open platform near the verandah of the Railway Station. The parcel was stolen on the night of March 6/7. The courts allowed the plaintiffs claim for damages for loss of goods. The Madhya Pradesh High Court considered this point from a broader aspect. In the Madhya Pradesh case Rule 29(2) (corresponding to Rule 31(2) in the present case) provides that if the goods are not recovered within two days (which is allowed under Rule 36-AA, part 1-A of the Goods Tariff) the Railway is not liable in respect of any loss or damage etc. The Madhya Pradesh High Court considered the two extreme views, the one view being that the railway continues to be the bailee and remains liable as such even after the consignee refuses to take delivery, the other view is that the railway is not liable as a bailee for any damage caused after the- expiry of reasonable time for the consignee to take delivery. There is a divergence of judicial opinion on these views as to whether or not the rule so far as it exempts the railway from liability is valid.
Apart from the said two extreme views there is also an intermediate view which is that a reasonable time must be allowed for the exigencies of tariff and the convenience of the consignee to whom delivery has to be made but when, the carrier is ready to deliver, the recipient is allowed only a reasonable time and no more to take delivery. On the facts of the particular case and having regard to the language of Rule 29(2), the Madhya Pradesh High Court rightly came to the conclusion and held that as the railway administration did not take due care of the goods, it was liable for the loss.
In the present case, however, Rule 31(2) provides that reasonable time should be given for taking delivery and then as to what is reasonable time the rule says that normally the free time given for demurrage and wharfage is the reasonable time. The word 'normally' in the Rule appears to be significant. I think what the rule envisaged is that in abnormal conditions such time may be extended reasonably. Thus it all depends on the facts and circumstances of each particular case and this leads me to think that Rule 31(2) is based on sound reasoning.
5. From the scheme of the Railways Act it appears that for general working of the railway, the Railway Company has been given by the Act itself certain powers including power of making general rules consistent with the Act for the purpose, among others, of regulating tho terms and conditions on which the Railway Administration is to warehouse or retain goods at any station on behalf of the consignor or owner. The Rules as to warehousing and detention of goods were sanctioned by the Government of India Notification No 231 dated 3-7-1902.
The Andhra Pradesh High Court in Union of India v. Radbikaram Satyanarayan, AIR 1959 Andh Pra 17 held that Rule 31(2) would fall within the ambit of the power conferred on the Government to frame rules under Section 47, Sub-section (1), Clause (f) and is not therefore ultra vires. The Andhra Pradesh High Court discussed the question whether the Railway Administration is responsible to the plaintiff for damage done to the goods even though the plaintiff did not take delivery of the goods promptly or within a reasonable time after the arrival of the goods at the destination.
Section 72 (1) of the Act makes the Railway administration responsible as bailee as aforesaid. Sub-section (3) of Section 72 of the Act excludes the railways from responsibility as common carriers. Therefore it is clear that the railway administration will not share any responsibility as insurers but only as bailee. As the Andhra Pradesh High Court expressed in the judgment, what is sought to be achieved by framing; this Rule 31 is that though demurrage and wharfage is chargeable after the time I within which a consignee is to take delivery of the goods, no responsibility thereafter exists for the Railway Administration to warehouse or retain the goods at the destination on behalf of the consignee or the owner.
Certainly the reason for this rule becomes clear when it is understood that a carrier need not warehouse the goods for the consignee or owner beyond the actual time required for serving the specific purpose and that any attempt by the consignee or owner to palm off the responsibility for loss, damage or destruction to the railway administration even though the delay is attributable to the owner has to be effectively checked. Thus understood. Rule 31 would fall within the ambit of the power conferred on the Government to frame rules under Section 47, Sub-section (1), Clause (f).
In the Andhra Pradesh case also there was delay of about 35 days -- the goods having arrived on 27-9-1953 and the plaintiff having taken delivery on 2-31-1953. The goods got drenched after a reasonable time was allowed for clearing the goods. The Railway took the defence that the plaintiff was bound to take delivery of the goods within the free time allowed without demurrage or wharfage and that the plaintiff caused undue delay and as the goods got drenched after a reasonable time was allowed for clearing the goods, the plaintiff alone was to blame himself and under Rule 31(2) of the Goods Tariff No. 28, the defendant railway was absolved from liability.
The Andhra Pradesh High Court in another decision Haji Mohamed Jamaluddin Bros. v. Union of India by General Manager, Central Railway, (1959) 1 Andh WR 55: (AIR 1959 Andh Pra 84) approached the question from another aspect, holding that Rule 30(2) (corresponding to Rule 31(2) in the present case) is not a rule, that it purports to be a public notice which cannot have a binding force unless it is issued in pursuance of a Rule; that there is no rule under which the notification might be said to have been issued.
With great respect I have not been able to follow this reasoning. In my opinion Rule 31, whereby the public notice is given, is itself a rule and does not stand in need of another rule to give effect to it. That apart, in my view, in any event. Rule 31 is not ultra vires the Railways Act, irrespective of the fact whether it is a rule or a public notice.
It is sufficient for the present purpose if on the facts of the case this Court can find whether or not there was unreasonable delay on the part of the plaintiff to take delivery of goods after they reached the destination at Chatrapur. Undoubtedly there having been nearly two months delay the plaintiff has to suffer the consequences of such delay which. presumably, was the cause for the resultant damage to the goods by reason of the alleged cyclonic rain. In this view of the matter, the railway is absolved from the liability for the damage by virtue of Rule 31 (2).
6. On merits, it is clear from the authorities cited by Mr. B. K. Pal, learned counsel appearing for the defendants, that under Section 80 of the Railways Act the onus is on the plaintiff to prove that the South Eastern Railway was liable for the alleged damage. The learned counsel urged that the onus was wholly on the plaintiff to prove that the loss occurred on the South Eastern Railway as required by Section 80 of the Railways Act.
In this context Mr. B. K. Pal cited a decision of this High Court in K. Chandrasekharam Subudhi and Sons v. Union of India, 1959 Orissa J.D. 299 : (AIR 1960 Orissa 100) where it was held that Section 80 only determined the liability of the different railways. Once that liability has been fixed, the railway cannot argue that it had not entered into contract with the persons who made the consignment because such a contention is now invalid in view of the provisions of Section 74-E of the Act. But before Section 74-E comes into play, the loss, must be proved as provided in Section 80.
If the loss is not proved then the only remedy to the person making the consignment is to sue the contracting railway. Section 80 having laid down a certain procedure and the plaintiff having exercised the option for suing the defendant-railway administration, the onus is certainly upon him to prove that the damages or deterioration was occasioned while the goods were on the lines of the defendant-railway.
The plaintiff having railed to discharge the onus cannot take advantage of Section 106 of the Indian Evidence Act. In placing the onus on the plaintiff it was the public policy to give protection to the railway. The only case where the railway is to adduce evidence is in case of non-delivery. Section 80 of the Railways Act places absolute onus on the plaintiff to prove damage. Before the Railways Act, it was the absolute liability of the railway as a common earner and bailee. The Railways Act limited the common law liability by different risk notes providing for such limitations.
The present state of the law is that the liability of the railway is only statutory,--limited within the ambit of the Act. The Calcutta High Court) in Darjeeling Himalayan Rly. Co. Ltd. v. Jetmull Bhojraj, AIR 1956 Cal 390 held that Section 80 of the Railways Act lays down how compensation is to be levied when goods are booked over the lines of more than one railway administration by through booking over several independent railways.
The aggrieved party may sue either the railway administration with, which the contract of carriage was entered into and/or the administration on whose line the injury had occurred. Section 80 lays down a specific rule of law governing the liabilities of different railways over which goods may be carried and those specific rules must be given effect to irrespective of any other consideration based on agencies or partnership. The onus is on the plaintiff to prove that the loss had occurred while on the railway, over which the goods have passed, which is attempted to be made liable.
In that particular case it was contended before the Calcutta High Court that under Section 80 no claim was sustainable against the Darjeeling Himalayan Railway Co., Ltd. unless it was proved that the damages had occurred while the goods were in the custody of that railway system. The High Court decided in favour of the Railway as the plaintiff failed to discharge the onus of proof. The contracting Railway however is liable irrespective of the fact whether the loss occurred on their line or not.
In the present case, the contracting railway was the Western Railway. But the suit against the Western Railway failed because there was no notice under Section 77 of the Railways Act. If, however, the plaintiff had given the Western Railway notice under Section 77 he had his remedy against thd said contracting railway. It is not that the plaintiff was initially without any remedy. The Patna High Court in a recent decision in Kannaiyalal Ram Narayan and Co. v. Union of India, AIR 1959 Pat 335 held that where goods are consigned to a Railway for delivery at a railway station on another railway and the suit for damages for short delivery is brought against the Governor-General or the Union of India, representing the latter railway where the loss does not take place, the latter cannot be made liable for the loss on the theory of agency or partnership.
Therefore it is necessary to allege and prove that the loss occurred while the goods were in the custody of that railway. The onus of proof is on the plaintiff before he could succeed in the claim against that railway and he could discharge that onus by asking discovery of the documents from the defendant railway under the provisions of Order 11, Rule 12 or Order 11, Rule 14 of the Civil Procedure Code with regard to the custody of the goods in the course of transit within their limits. Where he docs, not make any such application for discovery he cannot make grievance, relying on the abstract doctrine of onus of proof and ask for presumption that the loss took place while the goods were in the custody of that railway to be made.
This onus never shifts. As it is the statutory I liability, there is no question of shifting of the onus. The Assam High Court in Firm Radhakishen Bhagwati Prasad v. Union of India, AIR 1959 Assam 98 held that the cause of action against the Union would arise only if the loss occurred on one of its Railways. The plaintiffs have to prove this and may not shift onus by a presumption. The effect of making the presumption under Section 114, Evidence Act would be to shift the onus for accounting for the loss on the terminal administration which Section 80 of the Railways Act does not warrant.
If therefore the case set up is that a particular administration or administrations of the Union are responsible, it has got to be shown by the plaintiff that the loss occurred on the Railway or Railways of the Union administration. Thus the only administration that may be made liable under Section 80 in case of through-booking, as in the present case, is the administration on which loss, destruction or deterioration occurs. Compensation from such administration is recoverable only on proof of loss, injury, destruction or deterioration of goods on the railway of that administration.
This High Court in 1959 Orissa J.D. 299 : (AIR 1960 Orissa 100) cited above, held that Section 80 of the Railways Act having laid down a certain procedure and the plaintiff in that particular case, having exercised the option for suing the defendant railway administration, the onus is certainly upon him to prove that the damage or deterioration was occasioned while the goods were on the lines of the defendant-railway. The plaintiff having failed to discharge the onus cannot now take advantage of Section 106 of the Indian Evidence Act, Thus it is now the settled law that Section 106 and Section 114 of the Evidence Act have no application in a case where the onus is placed by a particular statute, namely, Section 80 of the Railways Act in the present case. It is not disputed that the parties are governed by Section 80 of the Act.
7. This leads us to the consideration of the case on evidence as to how far the plaintiff succeeded in proving the alleged damage to the goods in question. The damage certificate (Ext. 1) on which the plaintiff strongly relied, was a certificate as to the ractum of the condition of goods at the time of delivery. It does not show where and by whom of the other three railways on whose lines the goods passed namely, Western Railway--Central Railway and Southern Railway -- the alleged damage actually occurred. The alleged damage might have been caused by the plaintiff himself at the time the goods were despatched at the station of origin at Ahmedabad.
The Calcutta High Court in Balchand Badriprasad v. Union of India, (S) AIR 1957 Cal 666 held that where at the time of taking delivery of goods sent by railway the consignee obtains a damage certificate to the effect that 20 per cent of the goods had been damaged as a result of heavy rains, then such a certificate states only the fact that damage had in fact been caused to the goods (jute bales in that particular case) in transit but it does not amount to an acknowledgment of the fact that the damage was caused by negligence or misconduct on the part of the railway officers. The question, therefore, is who is responsible for the alleged damage. The Western Railway would have proved that the plaintiff himself had booked damaged goods.
The South Eastern Railway which delivered the goods at the station of destination at Chatrapur was not expected to lead any evidence because the onus was on the plaintiff as aforesaid. Ext. 3 being notice under Section 77 of the Railways Act does not allege that the goods were damaged while in the custody of the South Eastern Railway. The subsequent case of alleged damage having been caused to the goods while in the custody of the South Eastern Railway was a mere afterthought. As to oral evidence, the evidence of P.W. 2 the Gumasta of the plaintiff, was not accepted by the lower court as appears from paragraph 5 of the judgment. It is clear that P.W. 2 was not a straightforward witness.
On the question of fact there is no reason why the finding of the lower Court should be disturbed, unless there were cogent or compelling reasons. P.W. 1 one of the partners of the plaintiff, does not say that he saw the alleged damage at the station.. That apart on the question of delay in taking delivery of goods, it is clear from the evidence of P.W. 1 that he did not get the R.R. from the Bank through which the goods were to be cleared. It appears that it was not until 8-12-1955 that the R.R. was obtained from the Bank. This shows lack of diligence on the part of the plaintiff to release the goods from the Railway.
8. Mr. H. Sen placed the plaintiff's version of the case, on facts, thus : The damage, according to the plaintiff was caused by cyclonic rain as appears from the damage certificate (Ext. 1). P.W. 1 is stated to have been corroborated by P.W. 2 the Gumasta who is alleged to have himself seen the goods in damaged condition at the railway station. The learned counsel also relied on Exts. 3 to 4, Ext. 3 showing that the goods were damaged by water and Ext. 4 showing that the goods were lying on the open platform at Chatrapur prior to the delivery.
As I have already stated, this evidence -- either oral or documentary -- is not conclusive and the plaintiff cannot be said to have discharged the burden of proof by such evidence which was not satisfactory. As to the pleadings on which Mr. H. Sen relied, he contended that there was no specific denial of the alleged damage to the goods in the written statement. But I find from paragraph 6 of the written statement, that the Railway specifically pleaded that there was no carelessness or negligence on the part of the Railway servants and no damage, as alleged by the plaintiff, did take place when the consignment was in the custody of the railway. Therefore the contentions of the learned counsel for the plaintiff are not acceptable.
9. In this view of the matter I must maintainthe decision of the learned Subordinate Judge. Thisrevision is accordingly dismissed with costs. Hearing fee Rs. 32/-.