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Suit No. 105 of 1949, decided in October 1952.
, S. 76‑Suit against railway administration for compensation for loss of goods‑Plaintiff though absolved under section of burden of proving how loss was caused‑Whether also‑absolved of the burden of proving want of diligence on part of railway in order to succeed.
Section 76 of the Railways Act although absolves the plaintiff of the onus of proving how the loss, destruction or deterioration was caused to his goods in respect of which he claims compensation, it leaves unaltered the plaintiff's onus of proving want of due diligence on the part of the railway.
, S. 106‑‑Onus of proof when any fact is specially within knowledge of any person‑Whether provision of section discharges a plaintiff claiming damage or compensation for loss of goods entrusted to railway, from proving want of diligence or negligence of the railway servants.
Under section 106 of the Evidence Act, 1872 when any fact is specially within the knowledge of any person, the burden of proving that fact is on him. So when a railway administration is sued for compensation and damages for loss of goods entrusted to it, it is for the Railway to call the material witnesses. But this provision of the law does not discharge the plaintiff from proving the want of due diligence, or (expressing otherwise) the negligence of the servants of the railway.
When, however, as in the present case no evidence had been led by the Railway to show how they dealt with the wagons containing the goods between the place of loading and the place of arrival, particularly whether and if so what checks there existed over the seal and rivets placed on the wagon during its journey, an adverse inference may be drawn under section 114, illustration (g) of the Evidence Act, that if the evidence had been led it would have been adverse to the railway.
Dwarkanath v. Rivers and Steam Co. A I R 1917 P C 173, Secretary of State v. F. 0. Ramdhandas A I R 1934 Cal. 151, F. 0. Kishandas v. Secretary of State A I R 1937 Sind 85, Chainchal Singh v. Emperor A I R 1946 P C 1 and Surat Cotton Spinning and Weaving Mills Ltd. v. Secretary of State A I R1937PC152ref.
Wahiduddin Ahmed for Plaintiff.
Choithram Dewandas for the Federation of Pakistan.
---The plaintiff has filed this suit against the defendant for Rs. 3,689‑9‑9 being Rs. 2,951‑10‑0 value of 4 out of 95 cases (of Bata Shoes consigned from Jallo near Lahore to the plaintiff at Karachi) not delivered by the North‑Western Railway, and Rs. 737‑14‑9 being 25 per cent. profit thereon.
The defences raised are contained in the issues which I resettled on 24th November 1951 as follows :‑
(1) Is Sadruddin A. Khemani the sole proprietor of the concern known as S. A. Khemani & Co.
(2) How many cases of leather goods did the consign ment in question contain and were they consigned to the plaintiff
(3) Have any cases been short delivered as alleged by plaintiff
(4) Whether the certificate mentioned in paragraph 2 of the plaint was issued by mistake of the clerk who issued it and, if so, whether it is not binding on the Railway
(5) Whether plaintiff has given valuable consideration for the consignment in suit
(6) Did the plaintiff on 2nd April 1948.send any letter to the Divisional Superintendent, Commercial, Karachi If not, what is the consequence
(7) Is notice under section 80, Civil P. C. in order
(8) To what amount, if any, is plaintiff entitled
Issue 1.‑The plaintiff has given evidence, Exh. 7, to the effect that at the relevant time he was carrying on business at Karachi in the name of Khemani and Co. to whom the goods were consigned, and that he had no partner. He was a distributor at Karachi of shoes manufactured by the Bata Shoe Co. at Jallo.
In cross‑examination he admitted that the style in which he was carrying on business was S. A. Khemani & Co. and that he had banking accounts in that name and style with Grindlays Bank and Bharat Bank. I can see no reason for not accepting the plaintiff's statement that he was then carrying on business in that name and style. I, therefore, answer issue 1 in the affirmative.
Issue 2.‑The defendant examined Abdul Rahman, the Goods Clerk at Lyallpur, who was on 27th February 1948 the Goods Clerk at Jallo. He produced Exh. 10/1 the consign ment note presented to him by Bata Shoe Co. at the time of consignment, and his office copy of the Railway Receipt 10/2. Both these documents relate to 95 cases of Bata Shoes, and they both bear the rubber stamp showing that the goods were at railway risk. Abdul Rahman. Exh. 10, states that the Railway Receipt contains the abbreviation "s/c" which means "said to contain."
It has been argued for the defendant that the railway did not count the number of packages. The railway receipt, how ever, bears the endorsement "L/U by Railway" which means that the loading and unloading were to be by the railway. Abdul Rehman says that that endorsement had been made by mistake, but that can hardly be so since the defendant has led evidence to show that the unloading has been done by the railway. He says the loading had been done by the consignor because there was no railway labour available at Jallo through whom the railway could load the wagons. There is nothing to support this statement. In his cross‑examination he admit ted that the goods had been loaded in wagon No. 35274 and that he had sealed it, and had had it rivetted in his own presence. He said that even when the owner loads and unloads the goods the railway establishment inspect the goods, and if necessary make remarks in the railway receipt as to their condition, and state that the goods are at the risk of the owner.
The answer to this issue, therefore, is that the consign ment consisted of 95 cases of Bata Shoes, and as Exh. 10/1 and 10/2 show, they were consigned to the plaintiff.
Issue 3.‑The evidence of Sayed Aijaz Ali who was then loading and unloading clerk, Exh. 17, and who was examined by the defendant, shows that out of wagon No. 35274 only 91 cases were unloaded as against 95 cases shown in the invoice.
The answer to this issue, therefore, is that four cases were short delivered to the plaintiff. Exh. 7/14 which is the plinth delivery book, shows that only 91 cases were delivered to the plaintiff.
Issue 4.‑This issue has reference to a certificate of short delivery said to have been given by the staff of the North Western Railway at Karachi at the time delivery of 91 cases was effected, to enable the plaintiff to keep evidence of short delivery. The document has not been proved although it is on a N.‑W. R. form. The issue, however, appears to have been framed under a misapprehension since para. 3 of the written statement alleged that the certificate had been given under misapprehension, and was not binding on the defen dant. The factum of the certificate having been given was admitted.
It is the defendant's contention that the alleged shortage of four cases is based upon the plaintiffs' allegation that 95 cases were delivered to the railway for despatch to Karachi. I have, however, already held that there is suffi cient evidence to establish that 95 cases were delivered to the railway.
Issue 5.‑The plaintiff in his evidence, Exh. 7, has pro duced the bank draft drawn against him for all the goods then on order by him from Bata Shoe Co. as also the invoice he received. He has proved that the goods contained in the four missing cases were worth Rs. 2,941‑11‑0, and upon this point there has not been arty material cross examination. He has also produced entries from his books of account; anti there is I, therefore, answer this issue in the affirmative.
Issue 6.‑This issue is no longer material since the letter referred to has been proved in evidence as Exh. 7/6.
Issue 7.‑The notice is Exh. 7/12. Mr. Choithram drop ped his contention in the course of arguments that the notice is invalid.
Issue 8.‑This is the main point in the case under which the liability of the railway for non‑delivery of the four cases of Bata shoes has been convassed, and a large number of authorities cited on the question of the burden and nature of proof in a case of non‑delivery.
Section 72 of the Railways Act (IX of 1890) declares the responsibility of the railway, subject to the provisions of that Act, to be that of a bailee under sections 151, 152 and 162 of the Contract Act.
Section 151 of the Act lays down that in all cases of bail ment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Section 76 of the Rail ways Act states that in any suit against a railway administra tion for compensation for loss destruction or deterioration of animals or goods delivered to railway administration for carriage by a railway, it shall not be necessary for the plaintiff to prove how the loss, destruction or deterioration was caused. This section leaves unaltered the plaintiff's onus of proving want of due diligence on the part of the railway, which he must prove in order to succeed. It is material to observe that while the section relieves the plaintiff of the burden of proving how the loss, destruction or deterioration was caused, it does not put upon the railway administration the burden of proving it.
Section 106 of the Evidence Act says, "when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him." It is true that it must at least appear or be shown that the fact is specially within the know ledge of a person before the burden of proving it is cast upon him. There can be no manner of doubt however, that the railway administration alone knows how it has dealt with the goods after accepting them for carriage, and must lead evi dence to show how it dealt with them.
The onus of proof in a case under sections 151 and 152 of the Contract Act and section 106, Evidence Act was considered by the Privy Council in Dwarkanath v. Rivers and Steam Co. ((1819) 20 B L R 735 at page 738 (P C) = A I R 1917 J C 173) where it was observed at page 738 as follows :‑
"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 Lordship's 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 specially 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 those materials is that the servants of the defendant Company have not shown due care, skill and nerve.
The Privy Council case has been time and again referred to, and out of the numerous cases relying on it. I mention only two viz. Secretary of State v. Firm of Ramdhandas (A I R 1934 Cal. 151) and Firm of Kishandas v. Secretary of State (A I R 1937 Sind 85).
I now come to the consideration of the evidence which the defendant has led on the way the railway administration has dealt with the goods.
Abdul Rahman, Exh, 10, who was the goods clerk at Jallo stated that he had rivetted and sealed wagon No. 35274 in which the goods were carried; that the wagon left Jallo on 29th February 1948 and that it used to take about 10 days for a wagon from Jallo to reach Karachi. Mutassir Hussain, Exh. 11, the head trains clerk, Karachi Cantonment, sought to produce an entry from the Seal Check Register signed by two members of the Railway, Watch and Ward Staff, to show that the seals were in order at Karachi Cantonment when train No. 506 which brought wagon No. 35274 came to the Karachi Cantonment Station. The entry, though admitted as Exh. 11/1, was not admissible in evidence. The only provision under which it could have been admitted is section 32 Case 2 of the Evidence Act, but the conditions under which the entry has been made admissible have not been complied with. The persons who made the entry or signed it were not called in evidence. I refer to Ghainchal Singh v. The Emperor (A I R 1946 P C 1), which though decided under section 33 of the Evidence Act, is authority for saying that the conditions upon which evidence is made admissible should be strictly proved. There is no question here of any consent or waiver on the part of the plaintiff.
Then there is a group of four witnesses, namely, Muhammad Hussein, trains clerk, Exh. 12, Ashfaq‑ur‑Rahim, Exh. 13, Budlo Khan, Watchman, Exh. 14 and Muhammad Ismail, then Chief Trains Clerk, Humpyard, Exh. 15 who depose to what happened when the train reached Humpyard where it arrived at 2‑55 p.m. on 6th March 1948. Muhammad Hussein was the Station Master's correspondence clerk on 6th March 1948, but in the absence of the man who ought to have been there as trains clerk, had been asked by the Head Trains clerk, to work in his place from 1 to 3 p.m. The train arrived only 5 minutes before 3 p.m. and Muhammad Hussein appears to have made a hurried inspection and made an entry Exh. 12/1 stating that all seals were intact. Having done so, he left.
Then Badlo Khan, Exh. 14, arrived at the office and reported that he had found the tape of the Seal on wagon No. 35274 cut, and asked for a trains clerk to reseal the wagon. Muhammad Hussein had left and Muhammad Ismail, therefore, asked Ashfaq‑ur‑Rahim to reseal it. He affixed what is known as a "kutcha seal" and made an entry in the same register Exh.12/3 recording Badlo Khan's report and the affixing of the "kutcha seal" to the wagon. There is no evidence that the rivet had been tampered with.
Nabi Gul Khan, the unloading clerk Exh. 18 produced an entry from the delivery book showing that wagon No. 35274 was unloaded on 10th March 1948 and Syed Aijaz Ali Exh. 13 said that he had unloaded the goods from that wagon. He said that the wagon had been placed on his plinth that morning, that he had found it out any card labels and that he unloaded it at about 10 or 11 a.m. Since the card labels were missing, he had made a record on a slip of paper, Exh. 17/1 to take the place of the card labels in the records of the railway. He found 91 instead of 95 cases as shown in the invoice. Exh. 17/1 shows that it related to wagon No. 35274, that it was received without card labels and that on unloading there were found 91 cases as against 95 cases as per invoice. The railway knew that there were to be 95 cases. I admitted Exh. 17/1' though produced at a very late stage because it appeared to be a genuine document having been initialled by four railway servants.
This is all the evidence on the question how the railway administration dealt with the goods consigned. There is no evidence to show what checks there existed on the line between Jallo and Karachi over e seal and rivet which had been placed upon the wagon containing the goods by Abdul Rahman Exh. 10, at Jallo till the wagon reached Humpyard on 6th March 1948 at 2‑55 p.m. The evidence is that at Hump yard the tape on the seal had been cut, and although Badlo Khan states that to him the cut indicated that the wagon had been opened, there is no explanation of the absence of evidence that the rivet had been interfered with.
There is then a complete and significant absence of evi dence as to the railway administration's dealing with this wagon containing the consignment in suit from 2‑55 p.m. on 6th March 1948 to 10 or 11 a.m. on 10th March 1948 when, it was unloaded. Judicial notice may be taken of the fact that Humpyard is between Karachi City and the Cantonment Station, and that the distance between them is so short. The time taken over such a short distance is therefore a matter which needed explanation, and has not been explained.
Under section 114, illustration G, therefore, an inference may be drawn that if the evidence had been led, it would have been adverse to the defendant. Similarly absence of evidence as to the state of the rivet on the door of the wagon when Syed Aijaz Ali unloaded it leads to an inference adverse to defendant. I refer to Cotton Spinning and Weaving Mills Ltd. v. Secretary of State (AIR 1937 PC 152) where such an adverse inference against the railway administration was drawn.
It is not possible to say what happened to that wagon between the afternoon of 6th March 1948 and the morning of 10th March 1948, since the, defendant failed to produce evi dence as to the way the railway administration dealt with the goods during that time, and it is but a reasonable inference that if the defendant had produced that evidence it would have established that the railway administration did not take of the consignment the care prescribed by section 151 of the Contract Act.
The result is that there will be a decree for the plaintiff for Rs. 2,951‑1‑0 interest thereon from date of suit till judg ment and costs of the suit. The decree will carry interest at 6% per annum till payment. I disallow the 25010 profit claimed by the plaintiff as there is no evidence that the goods were worth 25% more at Karachi at the time they should have arrived.
K. B. A. Suit decreed.
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