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Second Appeal No. 105 of 1952 decided on 17th November, 1953, from the decree of the Court of Azam Ali, Senior Civil Judge, Sargodha, dated the 14th January 1952; reversing that of Bashir Ahmad, Civil Judge 1st Class, Sargodha; dated the 31st October 1951.
Railway‑Liability of, for non‑arrival of goods‑Negligence‑Burden of proof‑Issues involved‑Proof of circumstances attending loss‑Burden on Railway‑Proof of negligence‑Burden on plaintiff‑Evidence Act (I of 1872), S. 106‑Contract Act (IX of 1872), S. 151.
In a suit for damages for non‑delivery or loss of goods against the Railway the manner of the loss as well as the conduct of the defendant Railway and its servants is a matter to be proved by the defendant and the plaintiff is then to satisfy the Court that loss was the result of lack of due diligence. There should .be a composite issue on these questions consisting of the two following parts:‑(a) What did the defendant do in order to discharge its duty as bailee of the goods in question (b) Was loss of goods the result of lack of due diligence on the part of the defendant Under the first part of the issue the defendant will have to place on the record the material in its possession with respect to the manner in which loss has occurred and will also have to prove all the steps and precautions taken by it or its servants to prevent loss. The defendant will have to lead direct evidence but may also rely upon such presumptions as are permissible in law. On the facts which may be proved under this part of the issue it will be for the plaintiff to show that the conduct of the defendant and its servants does not amount to such care as is required by section 151, Contract Act.
When the onus of a fact is on a party and the fact is not proved the result is that for the purpose of decision that fact is to be regarded as non‑existent. If we apply section 114 we may only make a presumption that the evidence if produced would go against the party that withheld. If we apply section 106, there is an adverse finding as to facts.
Reasoning of A I R 1917 P C 173 explained.
S. A. Mahmud, Assistant Advocate‑General, for Appellant.
A. R. Sheikh, for Respondent.
‑This appeal has been preferred by Federation of Pakistan against whom Fazal Karim respondent has filed a suit claiming a sum of Rs. 832‑15‑0, the value of a case of leather shoes which was delivered to the North Western Railway at Karachi to be carried to Sargodha. The suit was dismissed by the trial Court but has been decreed on appeal.
On 30th of April 1949 a case of leather shoes was delivered to the N. W. R. at Karachi Bandar. It was being carried by wagon No. 37579. The wagon itself reached Sargodha, the place where the goods were to be delivered, on 11th of May 1949. The case was, however, not delivered on the allegation that it had been stolen during transit. As the Railway failed to deliver the goods the, plaintiff after some correspondence filed the present suit on 30th of August, 1950.
The pleas of the defendant in so far as we are concerned with them at this stage are two. The first is that the suit is barred by limitation. The second is that the defendant was not liable for loss of goods. As regards the first plea, although it is mentioned in the grounds of appeal, learned counsel for the appellant did not argue it in view of my judgment in Federation of Pakistan v. Muhammad Iqbal (P L D 1953 Lah, 460.). He admits that according to that judgment the suit would be in time. With respect to the second plea, the relevant facts so far as they appear from the defendant's evidence are as follows. The consignment in dispute was put in wagon No. 37579 at Karachi and the wagon was properly sealed. At Kotri Railway Station the seals were intact. At some place between Kathian and Allah Dino Sand the Railway guard who had charge of the train (hereinafter referred to simply as guard) heard the firing of a gun by the accompanying armed guard. This armed guard was somewhere in the middle of the train. There was another armed guard in the engine and a watchman with the guard in the brake. When the train reached Allah Dino Sand, the guard enquired from Mushtaq Ahmad, the armed guard who had fired, as to what bad happened and Mushtaq Ahmad told him that he had seen some person throwing goods off the train. On an inspection, the seal of wagon No. 37579 was found broken and some goods missing. Kacha seals were put on the wagon. At Tando Adam the wagon was checked and it was found that 29 parcels including the consignment in dispute were missing. The guard reported the matter to the station master and a case of theft was afterwards registered with the Railway Police. The guard also made some entry about this occurrence in a rough journal kept by him.
The evidence before the trial Court consisted of the statements of the guard as well as the watchman. The armed guard, who had fired the gun, was not produced. A copy, however, of the report made to the police was put in evidence. Evidence had been given also of the fact that the wagon was properly sealed‑at Karachi and the seals were found intact at Kotri, a chocking station. On these facts the Federation asked for a finding that the goods had been lost on account of theft in the running train. The trial Court recorded a finding in the affirmative. It found that the evidence produced was sufficient to prove the fact that the goods had in fact been so lost. On appeal, the learned District judge came to the conclusion that theft in a running train was not established. He held too that assuming a theft had in fact been taken place, as alleged by the defendant, there was negligence on the part of the servants of the defendant, because at the time when they came to know of the theft they took no measures either to prevent the theft or to recover the property. He was of the opinion that on hearing of the shot the train ought to have been stopped.
Learned counsel for the defendant‑appellant urges, in the first instance, that the onus of the relevant issue had been wrongly cast. The following is the issue which has been framed on this point :‑
"Is the defendant not liable for the loss to the plaintiff"
Learned counsel for the appellant argues that according to the Privy Council judgment in Dwarka Nath Pai Mohan Chaudhri v. Rivers Steam Navigation Co. Ltd. (A I R 1917 (P C) 173.) the onus of proving negligence was on ‑the plaintiff and that onus he has failed to discharge. That judgment does lay down that while it was for the defendant to lay the materials before the Court, it was for the plaintiff to satisfy the Court that the defendant had been negligent. It is necessary, however, to understand the true implications of what was held in that judgment in order to avoid any difficulty in its practical application. In that case two parcels of jute had been laden on board a flat 'for carriage from Bera to Ruthtolla Ghat at Calcutta. The greater part of these parcels was destroyed in a fire after their arrival at Ruthtolla Ghat. The question for decision before their Lordships was whether the defendant company was liable to compensate the plaintiffs for the damage caused to the parcels by the fire. Their Lordships pointed out first that the limits of responsibility were laid down in sections 151 and 152 of the Contract Act and then dealt with the question of onus in such a case. Their Lordships views on this question will appear from the following extract from the judgment :‑
"The weight to be attached to the judgment of the learned Judge of first instance, who saw the witnesses, is a good deal lessened by reason of his having apparently thrown the burden of proof on the wrong party. He states that it was, in his opinion, incumbent upon the defendant Company to satisfy him that they had taken such care of these goods as a man of ordinary prudence would take of his own goods. This, in their Lordships' view, is not a correct statement of the law.
It is true that under the Evidence Act of 1872, section 106, "when any fact is especially within the knowledge of any person, the burden of proving that fact is on him": and it was therefore right that the defendant Company should call the material witnesses who were on the spot, as it seems to have done. But this provision of the‑law of evidence does not discharge the plaintiffs from proving the want of due diligence, or (expressing it otherwise) the negligence, of the servants of the defendant Company.
It may be for the Company to lay the materials before the Court ; but it remains for the plaintiffs to satisfy the Court that the true inference from these materials is that the servants of the defendant Company have not shown due care, skill and nerve .
Their Lordships have regarded want of due diligence the same thing as negligence and have laid down that the onus of proving negligence is on the plaintiff. It has also been pointed out that the materials on which the Court is to give a finding are to be provided by the defendant bailee. In accordance with this judgment the issue as framed shall cast the burden on the plaintiffs. It will have to be in the following or similar words :‑‑
Has the defendant not taken such care of the goods as he was bound to take in accordance with section 151 Contract Act
As the material on which this issue is to be decided is to be provided by the bailee, the defendant shall then have to lead evidence to prove the manner in which the goods were lost and the steps taken by the defendant or his servants to prevent the loss. 'Material' obviously refers to all the material facts which will help in deciding whether section 151 has been complied with. The bailee has to prove all those facts in so far as it is within his power.
Suppose now that the defendant bailee fails to lead any evidence. The issue ought then in accordance with the observa tions of their, Lordships be found in favour of the plaintiff. But by the application of what principle of law shall we so find it I The defendant has failed in the duty of proving certain facts but how does that failure result in a positive finding of negligence (for that is what it amounts to) in favour of the plaintiff I would give the following reply to this question. All that the bailee did for the safety of goods while they were in his possession is a matter within the special knowledge of the bailee and as their Lordships have pointed out the onus of proving such facts is on him. If he does not lead any evidence, the Court will hold that he has failed to take any steps at all to prevent loss of goods which will amount to a. finding of negligence. The Court will presume the absence of any steps except those that are proved. If the bailee does lead some evidence but does not place the whole material on the record, the Court (if it believes the evidence led) will regard only those steps taken as have been proved. If such steps do not constitute sufficient care the Court will find in favour of the plaintiff. The matter will, I think, be clarified if we regard the issue framed its a composite issue made up of the two following parts :‑
(a) What did the defendant do in order to discharge his liability as bailee
(b) Was loss of goods occasioned by want of due diligence on the part of the defendant
In proof of the first part of the issue the defendant has to prove the care that he took, or in other words all that he did to prevent loss of goods. If he leads no evidence the result will be a finding that he did nothing in the discharge of his duties. He will also have to lead evidence as to the manner of loss of goods for it is only his action in relation to the prevention of the loss in the manner in which loss occured that is material. Section 76 of the Railways Act also casts the duty of proving the manner of loss on the Railway.
That is the way I would explain the reasoning in Dwarka Nath Pai Mohan Chaudhuri v. Rivers Steam Navigation Co. Ltd. (supra) In Secretary of State v. Ramdhan Das Dwarka Das Firm (A I R 1934 Cal. 151,) the learned judges observed while dealing with the reasoning in Dwarka Nath Pai Mohan Chaudhuri v. Rivers Steam Navi gation Co. Ltd., (supra) that if the defendant failed to place before the Court the relevant facts the plaintiff may ask the Court to presume that the evidence if produced would go against him. That would be an application of section 114 and not of section 106. Evidence Act to which their Lordships' of the Privy Council have referred. There is no doubt that the rule that non‑production of evidence leads to an adverse inference, is also applicable but that is not the only effect of the non‑production. In case of non‑production of material evidence the Court is not bound to make an adverse inference but may do so. On the other hand, if section 106, Evidence Act, applies the Court shall hold that a fact of which the onus was on the other party has remained unproved. When the onus of a fact is on a party and the fact is not proved the result is that for the purpose of decision that fact is to be regarded as non‑existent. If we apply section 114 we may only make a presumption that the evidence if produced would go against the party that withheld. If we apply section 106, there is an adverse finding as to facts.
I revert to the present case. The onus of the issue as to liability for loss had no doubt been wrongly placed on the defendant but the first difficulty in the way of the defendant appellant is that there was no objection to onus in any of the Courts below and, as a matter of fact, not even in the grounds of appeal to this Court. On the other hand, the first ground of appeal states that theft in running train had been proved. Were I to accept the contention of the learned counsel for the appellant that I should interfere on account of the wrong allocation of onus, the result would be that I would have to remand the case and give the plaintiff‑appellant an opportunity of proving that the defendant was negligent. I do not think that that would be a proper course to take in the present case. The plea taken in answer to the case of the plaintiff was that there had been a theft in a running train. That appears to be the sole point of dispute between the parties with respect to liability for loss of the consignment. The defendant took it upon itself to prove that fact and should it fail to do so it cannot be allowed to agitate the question of onus in arguments before me for the first time. I would consider, therefore, whether defendant has succeeded in proving theft from a running train.
The finding of the District judge on this point is a finding of fact. He considered the evidence and unless there be some legal flaw in the finding‑ it would be binding. Learned counsel for the appellant urges that the inference which the learned District judge has raised from the non production of Mushtaq Ahmad is not justified. The learned District judge seems to have approved the contention of learned counsel for the plaintiff that, as Mushtaq Ahmad who was an eye‑witness of the alleged theft had not been produced, an inference should be drawn that if produced he would not support the defendant. Learned Counsel for defendant‑appellant argues that in order that an inference from non‑production of evidence may be drawn it must first be shown that the evidence in question was in possession of the party concerned: According to him, there is no proof that Mushtaq Ahmad constable was available to the defendant. He says, the defendant did not know his address. I find that his name was mentioned in the list of witnesses. The only question is whether there would not be a presumption, in the absence of proof to the contrary, that the defendant was able to produce the witness. The witness was attached to the Railway Police at the time of the incident. Ordinarily speaking, I do not see how it was not possible for the defendant to find out where Mushtaq Ahmad was now posted. They could have either from the police station or from the entries in their own books with respect to him find out his number and parentage etc. At least they could have shown that they have made efforts and have been unable to ascertain his address. There is no suggestion at all of any steps having been taken for the purpose of finding his present whereabouts. It was not argued before the learned District judge that he was not available. I cannot, therefore, see any reason to upset the finding of "fact. Even if I were to consider the evidence myself I would be unable to come to the conclusion that theft in a running train had been proved. The only person who saw theft being committed was Mushtaq Ahmad and even if the report to the police be legal evidence of the commission of theft I would not under the circumstances of this case regard it sufficient by itself to prove theft. It has been pointed out by learned counsel for the plaintiff‑respondent that the guard's journal which is provided for in para. 6938 of the Operating Manual and which should contain all details of the journey has not been produced. The non‑production of Mushtaq Ahmad is an important circumstance. It is to be remembered that wagons of a goods train have no foot boards and it is not easy to break into a rivetted wagon while it is in motion. While there may be cases where even the discovery of broken seals warrants an inference of theft in a running train, the present is not one of those cases. Much would depend upon the circum stances and the witnesses produced.
The next question to consider is whether even on an assump tion that a theft was committed a finding of negligence is not justified. Abdul Wahid the guard who was with the train between Kathian and Allah Dino Sand, had heard a gunshot. Nur Muhammad, the watchman who accompanied him, had also heard the shot. The train was not stopped. Nur Muhammad watchman, when asked as to why the train was not stopped, stated that they bad no vacuum and therefore were unable to stop it. If it be really true that the guard wanted to stop it because he had heard a fire shot but was unable to do so on account of absence of vacuum it would be a case of negligence unless the absence of vacuum was proved to have been due to a cause beyond the control of the defendant. There ought to be a vacuum in a train in order that in case of theft while it is running it may be stopped. That a vacuum should be there in the brake of the guard is not denied and the failure to keep a vacuum against the rules would be negligence. Learned counsel for the defendant urges, however, that we should not take into consideration the statement of Nur Muhammad watchman. He says it may be the impression of the watchman that the guard wanted to stop the train, but the latter may have no intention of doing so, for he is not bound to stop the train on hearing a shot. The guard has not been questioned as to why he did not stop the train. I do not see why I should not rely on the statement of Nur Muhammad. He was the defendant's own witness and if he had made a statement which the defendant did not accept as correct it: was the defendant's duty to place further material on the record to show that facts were otherwise. It was for them to clarify this matter from the guard even by calling him a second time, if necessary. A positive finding of negligence would, therefore, be justified on the present record.
I am also of opinion that the Railway should make some arrangements for stopping the train in cases where a theft from a running train is detected during its commission unless the stopping by itself is fraught with further danger. In the present case, an armed guard had been placed, as already stated, in the middle of the train. He had seen a person throwing parcels off from the train. He had no means himself of stopping the train, for there was no vacuum in the carriage in which he was placed. It cannot be said that the Railway has taken all necessary precautions for the safety of the consignments. An armed guard would be of little use if De" is merely to see goods being thrown down the. carriage and to make a report at the next station It should not at all cost the Railway much if they were to employ some device by which an armed guard in a train would be able to get the train stopped. If he cannot himself be given a place with a vacuum it would not be difficult to provide some means of communication with the guard of the train whom he may ask to stop the train. The present case illustrates how the absence of any means of stopping of a train may result in loss of 'the consigner's goods. Learned counsel for the appellant says the armed guard which had been provided in this case was a special one and is provided only between particular stations on account of a greater danger of theft in that area and that the Railway is not able to do anything further than providing a guard. He says, it is some protection that the armed guard is there and can fire if he sees somebody committing a theft of goods in a running train. It is not easy to see how much good such an armed guard can do if he is not in a position to stop the train. The thief would be in a wagon and, therefore, the aimed guard would not be able to bit him with his gun. At the same time, it is very difficult to take a good aim with a gun while the train is running. I do not think it can cause any great expense to the Railway if there are any means of communications provided so that the stoppage of the train can be arranged in case of theft. Even if there be some extra cost it can be realised from the consignees by a slightly larger payment of freight. The value of the goods which are being carried by one goods train is so great that the expenses which may be incurred in this connection seem comparatively insigni ficant. I do not mean to say that whenever theft or robbery is detected train ought to be stopped. There may be cases when to stop the train would expose the goods to such further risk of robbery as ought to be avoided but the means to stop should exist so that if risk of the kind mentioned is not there, the train may be stopped and the goods recovered. In a large majority of cases there would be no danger in stopping the train.
I may explain here the approach in cases like the present as regards burden of proof. A plaintiff who files a suit for damages in respect of the goods which he delivered for carriage need not admit loss of goods to the Railway at all and may sue simply in respect of the non‑delivery. The Railway will then have to prove that the goods have in fact been lost. Should the Railway fail in proving the fact of loss, the plaintiff would be entitled to a decree. The mere fact that goods have not been delivered to the plaintiff does not necessarily mean that the goods have been lost to the Railway also. They may be somewhere in the Railway Stores. They may have been misdirected and carried to a wrong station but tray still be in possession of the Railway. The proof of loss to the Railway is, therefore, necessary if the Railway is to succeed in its defence. Of course, in a number of cases loss of goods would be admitted by the plaintiff himself in his pleading and in such a case the question of the loss need not form the subject of an issue.
The next step is proof of liability for the loss. The manner of the loss as well as the conduct of the defendant and its servants is a matter to be proved by the defendant and the plaintiff is then to satisfy the Court that loss was the result of lack of due diligence. There should be a composite issue on these questions consisting of the two following parts :‑
(a) What did the defendant do in order to discharge its duty as bailee of the goods in question
(b) Was loss of goods the result of lack of due diligence on the part of the defendant
Under the first part of the issue the defendant will have to place on the record the material in its possession with respect to the manner in which loss has occurred and will also have to prove all the steps and precautions taken by it or its servants to prevent loss. The defendant will have to lead direct evidence but may also rely upon such presumptions as are permissible in law. On the facts which may be proved under this part of the issue it will be for the plaintiff to show that the conduct of the defendant and its servants does not amount to such care as required by section 151, Contract Act.
One advantage of such a composite issue is that the defen dant will have to begin evidence on this issue. Should there be only one issue, i.e., of negligence, and the onus be on the plaintiff, the result would, be that plaintiff has to begin whereas in fact the material on which a finding is to be given is to be supplied by the defendant: That would be an unsatisfactory situation.
This appeal fails and is dismissed with costs.
A. H.
Appeal dismissed.
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