PETITIONER: UNION OF INDIA Vs. RESPONDENT: M/s. UDHO RAM & SONS DATE OF JUDGMENT: 01/05/1962 BENCH: DAYAL, RAGHUBAR BENCH: 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. JUDGMENT:
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 higaher
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.