P L D 1971 Karachi 259 (PLP)

(4) What is the correct value of the cartons, if recoverable ? (5) Are plaintiffs estopped from claiming more than the proportionate value of that declared and shown by them for the consignment ? (6) To what relief, if any, are plaintiffs entitled ? (7) Costs." On behalf of the respondent one witness Muhammad Akbar was examined while the appellant tendered 8 witnesses, namely, Ghulam Rabbani, Ejaz Wali, Mirza Maqbool Ahmed, Abdul Waheed Baig, Qamar Abbas, Sardar Shah, Fakir Muhammad and Anwarul Haq who were all railway employees. The evidence showed that the waggon containing the goods booked by the respondent was duly sealed at Karachi Railway Station and the seals were found intact when the train reached Rohri. However, when the train reached Sukkur the seals were found broken and, therefore, the goods train clerk who found the seal broken put kutcha seal and made a report to the various authorities. It seems that at the time of arguments in the trial Court issues Nos. 1 (a) and 2 were dropped while the remaining issues were pressed. The learned Civil Judge was of the view that the suit was not affected either by section 72 or section 75 of the Railways Act as the value of the goods in each package was 299 and it was only if the value exceeded Rs. 300 that the goods had to be insured. As regards the theft it was held by the learned Civil Judge that the appellant had failed to prove that there was any theft in the running train. But according to him the loss had occurred due to the lack of care by the railway as bailee. This view was based on the fact that there was no evidence to show that care had been taken by the railway after the train reached Rohri, and during the hault there till it left for Sukkur and reached there. It was observed that it was not proved what was the condition of the seals when the train started from Rohri for Sukkur and because of that missing link in evidence which the appellant alone could supply, it could not be said that the train when it started from Rohri carried the said goods and were not removed before its departure for Sukkur. On the basis of this finding the railway was held liable for the loss of goods. The remaining contentions which had been raised were also dis?pelled. So a decree for Rs. 2,990 with costs and interest was granted. In appeal the learned Additional District Judge maintained the view taken by the learned Civil Judge and dismissed the appeal. He was also of the view that the railway authorities had failed to place on record the necessary link in respect of the articles lost between Rohri and Sukkur, as the railway had not shown as to what care and caution they had taken in respect of the waggon and in respect of the goods lying in it when the train had arrived at Rohri and whether all was quite safe when the train started for Sukkur. So according to him from that stage there was lack of caution exercised by the appellant. He also observed that no witness was examined to show as to who took charge from the First Guard and which guard and driver had taken the train from Rohri to Sukkur. He did not agree with the contention that it was a case of theft in running train but the loss resulted due to the lack of due diligence on the part of the railway and, therefore, the appellants were liable for the loss of the goods. The learned Additional District Judge was of the view that the value of the goods was Rs. 2,999 and, therefore, he maintained the judgment and decree passed by the learned Civil Judge. Two‑fold contentions had been raised before us by the learned counsel for the appellant. He assailed the findings of the lower Courts on the question of negligence and value of the goods. No other point was pressed. Taking up the first question it was urged that the lower Courts came to a wrong conclusion that it was not a case of theft in a running train arid the loss had occasioned for want of due diligence on the part of the railway. Elaborating it further, it was stated that evidence was led to show that due care was taken in order to prevent any mischief and from the material thus placed on record it was evident that the theft had occurred while the train was running between Rohri and Sukkur. It was also urged that the respondent had failed to establish that proper care was not taken by the railway. Section 72, Railways Act was pleaded as a bar to the maintainability of the action for theft in a running train. We have considered the contentions of the learned counsel and we are not impressed with the position taken up by him. Section 72 of the Railways Act limits the liability of the railway to that of bailee under sections 151 and 152 and 161 of the Contract Act as to loss, destruction or deterioration of the good delivered to the railway for being carried. However, it provides a further limitation by special contract in forms approved by the Government. In this connection section 76 of the Railways Act may also be referred to. It lays down that in an action against the railway for compensation for loss etc. it shall not be necessary for the plaintiff to prove how the loss was caused. This section, therefore, enjoins the railway to place on record the entire material and circumstances to claim exemption from, responsibility as bailee. Sections 151, 152 and 161, Contract Act lay down the duty and the liability of the bailee. According to these sections the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circum?stances, take of his own goods and if the care so required of him is taken, he is not liable for the loss but if the loss is due to his default he is responsible for the loss. It is not necessary to examine in detail the various provisions of law and their implications for the reason that the learned counsel for the parties made their submissions on the basis of the authority of a Division Bench of Lahore High Court in the case of Federation of Pakistan v. Ehsan Ellahi (P L D 1955 Lah. 303). Their Lordships followed the principle laid down by the Privy Council in the case of Dwarka Nath v. Rivers Steam Navigation Co. Ltd. (A I R 1917 P C 173) as well as referred to various authorities. Earlier view taken in the case of Federation of Pakistan v. Sheikh Fazal Karim (P L D 1954 Lah. 245) was confirmed. It was laid down that it was for the railway to prove all that they did for the discharge of their duty as bailee but it was for the plaintiff to prove that what the railway did was not due care. In other words the onus of issue as to want of due care is on the plaintiff but the onus of proof of acts of the railway in relation to the consignment and of circumstances under which the consignment was lost, is on the defendant. It was further observed that 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 record the material in its possession with respect to the manner in which loss had occurred and will also have to prove all the steps and precautions taken by it or its servants to prevent the loss and on the facts that may be proved under this part, 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. In the light of the above principle we examined the evidence and we are disposed to confirm the view taken by the lower Courts that it was not proved that the theft had taken place in a running train but the loss had occurred due to the lack of care on the part of the railway authorities after the train had reached Rohri. No evidence was examined as to what care was taken while the waggon remained at Rohri. There is also no evidence to show as to when the train reached Rohri and for how long the waggon remained there and whether the seals were intact when the train left for Sukkur. The entire evidence was confined up to the arrival of the train at Rohri whereby it was shown that when the train reached Rohri tire seals were intact. No further proof was furnished. Although the burden of establishing the want of care to be attributed to the railway lies on the appellant, it is the duty of the railway to supply the entire material from which A the amount of care that is taken can be ascertained. In the present case it had been found by both the Courts that no such evidence was furnished as to the stale of affairs after the train reached Rohri. Apart from the fact that there is a concurrent finding of fact we entirely agree with the conclusions so reached by our own independent appraisal of the evidence. In the absence of that evidence it must be presumed that the care as required by section 151, Contract Act was not taken during the period the waggon remained at Rohri. This, therefore, places the liability for loss upon the appellant. So far the value of the goods is concerned it was urged by the learned counsel for the appellant that the findings of the lower Courts were not warranted by the evidence brought on record, We have examined this question and we entirely agree with him. In the plaint the value of the goods was shown at Rs. 3,132 but in evidence it was stated that the market value of each radio set was Rs. 299 or Rs. 300 or more or less. It seems that the lower Courts adopted this value for the purpose of awarding damages. We are unable to accept this finding as, apart from the letter to which we would presently refer, there was a bare word of the respondents' witness and no documentary or other proof was furnished in support of it. Even the invoice was not produced. The bare words in the circumstances of the case could not be taken to be sufficient in proof of the value of the goods. On the contrary, since the invoice which was a material dooument, had been withheld, ft gave rise to an adverse inference. This infereoce is strengthened by letter Exh. P/2 dated 16th October 1956. In this the value of the goods was shown as under :? Rs. Value of 10 cartons as per B Entry No. 4755 dated 30‑6‑56? ?..1,740 (torn) of custom duty, collected by Karachi Customs at 50, %?? ?..??? 870 of S. Tax ???do????at 20%?? ?..?? ???522 Total? .?.? ?3,132 Thus according to this letter the actual value of the goods was Rs. 1,

740. The remaining amount was claimed as customs duty and sales tax, but unfortunately in evidence not a single word was said that either customs duty or sales tax was paid by the respondent. We repeatedly asked the learned counsel for the respondent to show any such evidence but he conceded that it was not available on record. No receipt for the payment of these amounts was produced. Even in the plaint it was not claimed that any such amount was paid. However, the learned counsel for the respondent contended that the respondent could not collect the goods unless duty and sales tax had been paid to the Customs Department. That may be so but this statement alone is not enough. In the first place it is not supported by any evidence and secondly it may be noted that the goods had been despatched from Holland and their destination was Kabul. So the landing of the goods at Karachi were simply in transit. On the other hand it was pointed out by the learned counsel for the appellant that the Custom Collector had the power to deliver the goods in transit without realising the customs duty and sales tax and, since the goods having been intended for Kabul landed at Karachi while in transit, it could be presumed that no custom duty or sales tax was charged. This contention of the learned counsel for the appellant is not without force, in view of the provisions of section 23‑A, Sea Customs Act and the absence of proof of the payment of custom duty and sales tax. Under the aforesaid section the Chief Customs authority has the power to deliver the goods without payment of duty on certain conditions if the goods are imported temporarily with a view to subsequent re‑exportation. It was next urged by the learned counsel for the appellant that the measure of damages to be awarded to the respondent was the value of the goods at the place of destination and there was no proof of it and, therefore, the respondent could not be awarded even Rs. 1,740 as earlier claimed in the letter already referred to. We agree with the principle that the damages are to be assessed in terms of the value of goods at the destination but we are unable to accept the contention that the respondent is not entitled to claim Rs. 1,

740. The value of the goods at the destination is always higher unless there is a sudden slump in the market. No such slump has been pleaded. The plaintiff is not debarred from claiming compensation at a rate lower than the price prevailing at the place of destination. The respondent in his letter had claimed Rs. 1,740 as the price of goods and there is no evidence to the contrary nor there is any evidence to show that the price at the destination was lower. We have, therefore, no reason to reject the claim for this amount. In the result we reduce the decretal amount to Rs. 1,740 with costs thereon and running interest at 6 %. With this modification the appeal is dismissed. Looking to the partial success, we order that each party should bear its own cost in this appeal. A. E.Orders accordingly.