P L D 1960 Dacca 530 (PLP)

CHAKRABORTI, J.‑This suit was brought by the Secretary, Rangpur District Co‑operative Consumers' Stores, Limited, for recovery of Rs. 9,622‑2‑2 as against the Federation of Pakistan for short‑delivery of eight bales of textile goods booked from Chittagong to Kurigram in the district of Rangpur.

2. The plaintiff has claimed Rs. 8,551‑9‑2 as the value of eight bales of textile goods as per invoice No. 32R/R 936204 and Rs. 1,069 as compensation and Rs. 2 as incidental costs.

3. The plaintiff's case is that fifty‑nine bales of cloth were despatched from Chittagong to Kurigram under the above invoice on the 26th April 1949, and on the 13th May 1949. When the plaintiff's agent went to take delivery of the consignment, he received only fifty‑one bales of cloth and eight bales of cloth were found short for which the Station Master of Kurigram Railway Station granted a short‑certificate. Plaintiff's case is that the loss in transit was due to the carelessness and negligence on the part of the employees of the East Bengal Railway.

4. The defendant contested the suit. Their defence in substance is that the bales were lost in transit due to a running train theft. In spite of precautions taken by the Railway Admi nistration, the goods were lost between Mymensingh and Nandina stations on the East Bengal Railway and the Administration had no control over the loss. The defendant also raised a plea that the loss was due to the consignment being already in a bad condition and the Administration was entitled to the benefit of Risk Notes A and B executed by the plaintiff, but it is conceded that, in fact, no risk notes were executed in this case.

5. The learned Subordinate Judge by his judgment, dated the 4th July 1956; dismissed the suit. He was inclined to hold that the Railway Administration had proved circumstances which negatived misconduct and negligence on the part of the Railway Administration or its servants and it indicated that the loss of eight bales of cloth in suit was due to a running‑train theft over which the Railway had no control and it could not be said that the loss of the eight bales of cloth in question was due to misconduct or negligence on the part of the Administration or its servants. The Administration could not, therefore, be liable for the loss and they could not be directed to pay any compen sation to the plaintiff. The plaintiff thereafter preferred this First Appeal before this Court.

6. Mr. Fazlul Karim, the learned Advocate appearing for the appellant, has contended before this Court that in the facts and circumstances of the case the Court below ought to have held that the defendant had failed to place all the material evidence before the Court and, as such, ought to have presumed that, if produced, such material would have gone against the defendant. Secondly, he has urged that the Court below erred in law in not drawing an adverse inference against the Administration for their failure to examine certain material witnesses who were in the particular goods train. He also contended before us that the learned Subordinate Judge ought to have drawn adverse inference against the Administration for contradictory statements as to the actual time of stoppage of the goods train at Narundi Station, and, lastly, his contention is that in view of the above circumstances the learned Subordinate Judge ought to have held that the Administration has not discharged the onus which is upon them of showing that they had taken reason able care of the goods committed to their charge.

7. Mr. Jani Alam, the learned Advocate appearing for the respondent, has, however, contended that in the evidence of the plaintiff, witness No. 1, there is absolutely no statement that there was any carelessness or negligence on the part of the Administration and, as the theft occurred in spite of all precautions taken by them, the plaintiff is not entitled to any relief as against the Administration.

8. Mr. Karim has relied on the case of Surat Cotton Spinning and Weaving Mills, Limited v. Secretary of State for India in Council, Manager and Proprietor of the East Indian Railway Administration (L R 64 1 A 176) in support of his contention. Mr. Jani Alam has again relied on the case of Dominion of India v. Vrajlal Chhaganlal & Co. (60 C W N 079).

9. The short‑delivery is admitted and the value of the textile goods is also not questioned before the Court. It is also not disputed that the Administration as a bailee is bound to take reasonable care of .the goods committed to their charge. In this case also, during the hearing of the appeal, it was not disputed that no Risk Notes were executed by the plaintiffs.

10. Now the defendant's case is that the goods were lost between Mymensingh and Narundi Railway Stations. The train was running at a speed of fifteen to twenty miles per hour, but, on account of certain message, the goods train had to stop at Narundi in order to allow a passenger train to pass. There is the discrepancy in the statements of the witnesses examined by the defendant as to when this train stopped at Narundi. The case of the defendant is that the train stopped there for about thirty to thirty‑five minutes. P: W. 1, the Guard, who was in that particular goods train, deposed in this case as follows :‑ " My train was detained at Narundi Station to allow cross ing of a passenger train at 12‑55 night of 30‑4‑

55. I had to stop there as line‑clear was not given ". Now the Assistant Station Master Boyezuddin Ahmad who was at that time the Assistant Station Master of Narundi deposed that the goods train was detained at Narundi at 1‑5 a. m. on 30th April 1949, for allowing crossing of a passenger train. Now if these statements are correct, there is no explanation on the side of the defendant as to how this time of ten minutes was employed. Was it for pilfering the goods from the goods train or for any other purpose? It is the case of defendant, as we got from M. A. Aleem, the Guard, that when he started the train from Mymensingh on the same night, the seals and rivets of all the wagons were intact and wagon No. 27667 B. A. C. G. contained 30 bales of cloth out of which 8 bales were stolen. The Guard's evidence is that the train stopped at 12‑55 on 30‑4‑

55. At Narundi, he alighted from the brake van to check the wagons and he was proceeding towards the engine and, of the three armed escorts who were in the same goods train, two started checking on the off side of the train and another armed escort who was on the engine side was also checking and he was proceeding towards the nearby platform side, and that escort reported to him that the door of one wagon was open and that was wagon No. 27667. The Guard found the three doors of that wagon open and the chain of the quotter join missing. He counted the bales of cloth and found twenty‑two bales inside the wagon. The card label on the outside of the wagon indicated that it contained thirty bales and he got it compared with the invoice which was with him. It was the 16th wagon from the engine and 34th from the back. He reported the incident to the Assistant Station Master, Narundi, on duty and posted two armed police in the wagon but he was asked by the Control to proceed to Singjani and report the matter to the G. R. P. and others. There was no police at Naurndi Railway Station. On reaching Singjani, he sent messages to various authorities and the particular wagon was detached at Singjani and he handed over the same to the Station Master, as it was mot in a proper condition. Now this particular Guard got the report from one armed escort and his information was derived from him. That particular escort is a very material witness but he has not been examined without any explanation. The Assistant Station Master of Narundi is D. W.

4. He only says that the guard of the train reported that there was a theft in that wagon. It is curious that he did not go to the wagon and see for himself that anything was stolen from that, wagon. The details were not given to him by the Guard and practically his evidence is only hearsay. The Station Master of Singjani to whom the occurrence was reported and who detached the particular goods wagon was not also examined in this case. So we have only practically the uncorroborated evidence of the Guard regarding the story of theft alleged by the defendant. It is true that plaintiff's witness No. 1, M. Ahsan Ali, the Sub‑divisional Controller of Stores of Kurigram, has not spoken about any negligence of the servants of the Administra tion. But it is a fact the goods were despatched by the particular goods train and were committed to the charge of the Railway as bailee and there was a short‑delivery. It was absolutely for the defendants to satisfy the Court that as the bailee they took reasonable care of the goods entrusted to them. The plaintiff has made out a case of negligence and misconduct on the part of the employees of the Administration and it is for the defendant to place materials and circumstances to negative that case of the plaintiff.

11. In the Privy Council decision relied on by the learned Advocate for the Appellant, there was the Risk Note but it was held by the Judicial Committee that " even then the Railway Administration shall be bound to disclose to the consignor how top consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove miscon duct . . . . . If the Administration failed to take the opportunity to satisfy the demands of the consignor, so far as endorsed by the Court, they would be in breach of their contractual obligation of disclosure. If misconduct might be fairly inferred from the evidence of the Administration, the consignor was absolved from his original burden of proof ". At page 180, the Board held : " the Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in his possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct but, if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence, the burden of proving such mis conduct shall lie upon the consignor ". Their Lordships further observed that all the material witnesses and circumstances should be placed before the Court so that the Court might consider the question whether misconduct may be fairly inferred in that particular case, for, in that case, the consignor would be absolved from his original burden of proof. The material witnesses were withheld without any explanation. The Court is bound to make presumptions as against the party under section 114 (g) of the Evidence Act that if those witnesses were forthcoming their evidence would not have been favourable to the defendant. At page 189, their Lordships further observed as follows :‑

" While their Lordships would be inclined to hold that the respondent, by his failure to submit the evidence of Rohead, was in breach of his contractual obligation to give the evidence necessary for disclosure of how the consignment was dealt with, they are clearly of opinion that the failure to submit the evidence of Rohead, in the circumstances of this case, entitles the Court to presume, in terms of section 114 (g) of the Evidence Act, that Rohead's evidence, if produced, would be unfavourable to the respondent and that, in conse quence, misconduct by complicity in the theft of some servant or servants of the respondent may be fairly inferred from the respondent's evidence ".

12. The learned Advocate appearing for the Administration has contended before us that in that particular case the Guard was not examined by the Administration. But in this case the Guard has been examined. But it is not the question of the Guard being examined or not. The armed escort who first detected the crime and checked it and reported the matter to the Guard was a very material witness in this case and no explanation has been offered why his evidence has been withheld in this particular case. The probability of any theft between Mymensingh and Narundi before the train stopped at Narundi is also a matter for consideration because the train was running at a speed of 15 to 20 miles per hour and, if the Guard's evidence is to be believed, the seals and rivets were intact when the train started from Mymensingh. As I have already sated in this connection, the discrepancy about the time, as deposed by the Assistant Station Master, Narundi, and the Guard, becomes very prominent.

13. A theft case was started and some persons were arrested and some goods were recovered from them said to be in connec tion with this particular theft but the identity of the accused or the goods stolen was not established and the accused were dis charged. So, this circumstance does not at all help the defendant.

14. In this view of the matter, we are of the opinion that the learned Subordinate Judge has not considered this case from the right angle of view and, having regard to the facts and circum stances of the case, we are of opinion that misconduct and negligence on the part of the servants of the Railway Company can be fairly inferred in this case. The case of Dominion of India v. Yrajlal Chhaganlall & Co. does not help him at all. Even in that case, Mookerjee, J., held that " when the Railways fail to disclose fully, the plaintiff is entitled to compensation for the portion of the consignment which has not been delivered". That is a case where a fire by accident was set up as a plea and his lordship Mookerjee, J., observed at page 683 as follows :‑-- " If destruction by fire is not proved, then the plaintiff is entitled to full disclosures by the defendant as to how the consignment was dealt with during the period that it was in the custody of the bailee. A portion of the consignment has not been delivered. We must, therefore, hold that the defendant having failed to disclose fully, the plaintiff is entitled to com pensation for the portion of the consignment which had not been delivered ".

15. In the result, the appeal succeeds and the judgment and the decree of the Subordinate Judge are set aside and the suit is decreed with costs of both the Courts. AKBAR, J.‑I agree. K. B. A. Appeal accepted.