Union of India Vs. M/S. Udho Ram &
Sons [1962] INSC 178 (1 May 1962)
01/05/1962 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
KAPUR, J.L.
GUPTA, K.C. DAS
CITATION: 1963 AIR 422 1963 SCR (2) 702
ACT:
Railway-Loss of goods in transit-Negligence
of railway servants-Liability-indian Railways Act, 1890 (IX of 1890), s.
72-Indian Contract Act, 1872 (IX of 1872), s. 151.
HEADNOTE:
Certain goods consigned by a merchant to the
respondent.
Some of the goods were lost in transit. The
respondent sued the railway authorities for damages for the loss on ground that
the loss 'Was incurred due to the negligence of the railway authorities. The
defence raised was that loss occurred due to factors beyond the control of the
railway authorities. The suit was dismissed by the trial court. On appeal the
High- Court reversed the judgment of the trial court and found that the loss
was caused by the negligence and misconduct of the railway authorities in as
much as the railway police failed to take precaution to see that no body
interfered with the goods.
The Union of India appealed to the Supreme
Court by way of certificate granted by the High Court.
Held, that the responsibility of the railway
under s. 72 of the Indian Railways Act is subject to the provisions of s. 151
of the Indian Contract Act and the Railway as a bailer was bound to take as
much care of the goods bailed to it as a man of ordinary prudence would under
similar circumstances. The loss having taken place due to the negligence of the
railway servants the railway is liable for the loss incurred by the respondent.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 581 of 60.
Appeal from the judgment and decree dated
April 23. 1958, of the Punjab High Court (Circuit Bench) Delhi in Civil Regular
First Appeal No. 32-D of 1953.
Naunit Lal and D. Gupta, for the appellant,
703 Gurbachan Singh and Harbans Singh, for the respondent.
1962. May 1. The Judgment of the Court was
delivered by RAGHUBAR DAYAL, J.-This, appeal, on certificate granted by the
Punjab High Court, arises in the following circumstances.
M/s. Radha Ram Sohan Lal of Calcutta
consigned certain goods to self at Delhi. of the consignment, certain articles
were not delivered to M/s. Udho Ram & Sons, the plaintiffs, in whose favour
the railway receipt had been endorsed by the consigner. Having failed to
receive the compensation for the loss suffered on account of the articles not
delivered, the suit giving rise to this appeal was instituted. There is now no
dispute' about the amount of loss, determined by the Court, as suffered by the
plaintiffs.
The only dispute between the parties is
whether the loss of goods in transit between Calcutta and Delhi was due to the
misconduct and negligence of the railways or not. The Union of India, the
dependent, contended that the loss occurred due to circumstances beyond the
control of the railway administration.
The trial Court found that the railway wagon
in which the consignment was loaded bad been thereafter properly riveted and
sealed at Howrah, that the seals and rivet of one door of the wagon were found
open when the train which left Howrah at 1. 30 a. m. on October 1, 1949,
reached Chandanpur Station at 3.15 a. m., the same night, the train having
stopped for 14 minutes at the Howrah-Burdwan Link for the home signal at 2. 05
a. m., and that the railway protection police escorted the train. The High
Court accepted these findings and they are not questioned.
704 The trial Court, however, found that the
precaution taken of posting railway protection police in a good,; train, in
view of the frequent thefts in running trains between Howrah and Chandanpur,
amounted to the railways taking proper care of the goods delivered to them as
carriers and that therefore the railways were not guilty of any negligence and
misconduct. It was of the view that the railway protection police which usually
traveled in the guard's van, could not possibly know what was happening in the
wagons at the other and or in the middle of the train during the journey. It
therefore dismissed the suit.
On appeal, the High Court held the railways
responsible for the loss which, in its view, was due to its negligence and
misconduct inasmuch as there was no evidence on record that the railway
protection police took any precautions to see that nobody interfered with the train
when it halted for 15 minutes at the Howrah-Burdwan Link at night. There was no
other arrangement for watch and ward at the Link. There was no evidence as to
what was the strength of the railway protection ,police or to show that it did
stir out of the train see that the wagons were not interfered with. It
therefore concluded that the servants of the railway were negligent and did
nothing to see that opportunities for theft were eliminated as far as possible,
that the railway administration was responsible for the negligence of its
employees as it could act through its employees and that therefore the lose of
goods was due to the misconduct and negligence of the railways. It therefore
reversed the decree of the trial court and decreed the plaintiffs' suit for the
amount of loss hold suffered by the plaintiffs. It is this decree against which
the Union of India has obtained the certificate of fitness for appeal from the
Punjab High Court and has preferred this appeal.
705 There is no evidence on record that the
railway protection police which escorted the train was adequate in strength for
the purpose of seeing that the goods were not interfered with in transit. In
fact, the defendants did not allege in their written statement that any railway
protection police escorted the train. The present of the railway protection
police with the train was just deposed to by Chatterjee, D.
W, 10, the then Assistant Station Master at
Chandanpur Railway Station. He did not mention that fact in any of his messages
or memorandum in which he simply mentioned the presence of the railway
protection police at the time of re--sealing the wagon. He stated in cross
examination that he did not remember from memory the events of the occurrence
at Chandanpur station on October 1, 1949, and was making his statement on the
basis of the record before him. However, both the Courts below have recorded
the finding that railway protection police did escort the train. There is no
evidence as to why the police force could not see to the non-interference with
the wagons when the train halted at the Link where, according to the Courts
below, the thieves probably get at the wagon and tampered with its seal and
rivets. In the absence of any evidence about the strength of the railway
protection police, the contention of the appellant that the force was adequate
cannot be accepted.
It may be true that any precautions taken may
not be always successful against the loss in transit on account of theft,, but
in the present case there is no evidence with respect to the extent of the
precautions taken and with respect to what the railway protection police itself
did at the place where the train had to stop. We cannot accept the contention
that the railway protection police could not have moved out of the guard's van
due to the uncertainly of the stoppage of the train at the 706 signal. It was
the job of its members to get down on every stoppage of the train and to keep
an eye at the various wagons, as best as they could.
There could be no risk of the train leaving
them on the spot suddenly. They could climb up when the train was to move.
The wagon in which the plaintiffs' goods
were, was in the centre of the train. It was the 29th marriage from the other
end. It must be taken to be the duty of railway protection police to get out of
the guard's van whenever the train stops, be it at the railway platform or at
any other place. In fact, the necessity to get down and watch the train when it
stops at a place other than a station is greater than when the train stops at a
Station, where at least on the station side there would be some persons in
whose presence the miscreants would not dare to temper with any wagon and any
tempering to be done at a station is likely to be on the off side.
The responsibility of the railways under s.
72 of the Indian Railways Act is subject to the provisions of s. 151 of the
Indian Contract Act. Section 151 states that in all cases of bailment, the
bailer is bound to take as much care of the goods bailed to him as a man of
ordinary prudence would, under similar circumstance, take of his own goods of
the same bulk, quality and value as the goods bailed. Needless to say that an
ordinary person traveling in a train would be particular is keeping an eye on
his goods especially when the train stops. It is not therefore imposing a higher
standard of care on the railway administration when it is said that its staff,
and especially the railway protection police specially deputed for the purpose
of seeing that no loss takes place to the goods, should get down from the wagon
and keep an eye on the wagons in the train in order to see that no unauthorised
person gets at the goods.
707 We are therefore of opinion that the
finding of the High Court that the loss took place due to the negligence of the
railway servants and, consequently, of the railway administration, is
justified.
We therefore dismiss the appeal with costs.
Appeal dismissed.
Back
