P L D 1960 Dacca 72 (PLP)

A. F. M. Mesbahuddin for Appellant. R. K. Banik for Respondent. This appeal arises out of plaintiff‑respondent's suit for recovery of Rs. 2,000 on the allegation, amongst others, that pro forma defendant No. 4 booked 25 bales of S/C cotton yarn from Chittagong railway station to Narayanganj under Invoice No. 374, dated the 27th November, 1951, in the name of its officer, Bharat Chandra Saba, in, whose favour the above consignor endorsed the bill of lading. At the time of delivery, one and a half bales were found short. It is an admitted fact that the consignor at the time of booking signed Risk Notes A and B. The learned Subordinate Judge decreed the suit in part to the extent of Rs. 1,81.6 with proportionate costs, and dismissed the suit in respect to half of a bale lost, as no case of misconduct on the part of railway servants was made out in the plaint or proved by the plaintiff.

2. The sole point for consideration in this appeal is whether, in view of the execution of Risk Notes A and B by the consignor, the plaintiff is estopped from giving evidence as to how the goods were packed ; in order to succeed in the suit, the plaintiff shall lave to allege and prove first that due to the misconduct and negligence on the part of the Railway Administration or its employees the whole or part of the consignment was lost or after the Railway Administration has disclosed how it dealt with the consignment throughout the time it was in its possession or control.

3. Risk Note A refers to that class of articles tendered for carriage which are either already in bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit, and provides that in such cases the Railway Adminis tration over whose railway the said goods may be carried in transit is held harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination, and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administration or its servants, and Risk Note B refers to cases where goods are despatched at a `special reduced' or `owners' risk rate, and makes the Railway Adminis tration harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination, and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administration or its servants. It also provides that the Railway Administration is bound to disclose to the consignor how the 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 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 misconduct shall lie upon the consignor. The last provision applies to cases, namely, of non‑delivery of the whole of the consignment or of the whole of one or more packages forming part of the said consignment packed in accordance with the instructions laid down in the Tariff or, where there are no such instructions, protected otherwise than by paper or other packing readily removable by hand fully addressed, where such non‑delivery is not due to accident to trains or to fire, and, secondly, pilferage from packages forming part of the said consignment properly packed as in (a) when such pilferage is pointed out to the servants of the Railway Administration on or before delivery.

4. From the Risk Note A it appears that when a consignor sends articles in bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit, tire Railway Administration will not be liable for the condition in which the aforesaid goods may be delivered to the consignee or for any lost arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administration or its servants. This being the contract, it cannot be said that the Railway Administration, at first, is to disclose how the goods were dealt with during transit. Risk Note B provides that when goods are sent at a reduced rate or at the owner's risk the Railway Administration will not be liable for the loss except in two cases, namely, where the goods have been packed in accordance with the instructions, as laid down in the Tariff, or, where there are no such instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such non‑delivery is not due to accident to trains or to fire, and, secondly, pilferage from a package or packages forming part of the said consignment properly packed as in (a) when such pilferage is pointed out to the servants of the Railway Administration on or before delivery. In the last two cases, the Railway Adminis tration shall be bound to disclose to the consignor how the 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 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 misconduct shall lie upon the consignor. Here. in the present case, there has been no case made out that the consignment was packed in accordance with the Tariff or protected otherwise. So the two exceptions in Risk Note B have no applica tion to the present case.

5. In view of the provisions in Risk Notes A and B, and in view of the fact that there is no evidence that the packages were packed in accordance with the Tariff rules or any rules laid down in any paper, and in view of absence of any evidence that the packages were packed in accordance with the Tariff rules or the rules laid down in any paper, I am of opinion that there was no initial onus on the Railway Administration to show how the goods were dealt with during transit or its control. This view of mine finds support in the case of The Chief Executive Officer, Rangpur District Consumers' Co‑operative Stores, Ltd. v. The Federation of Pakistan (7 D L R 611), in the case of D. D. Jaishi Ram Co. v. Dominion of India (A I R 1953 Pun. 83), in the case of The Governor‑General in Council v. Kishengopal Bharaia (A I R 1948 Cal. 300), in the case of G. I. P. Ry. Co. v. Chakravarti Sons and Co. and others (A I R 1928 Cal. 170), in the case of Mafat Lal Gogal Bhai v. B. B & C. I. Ry. Co. Ltd., and another (A I R 1931 Cal. 489), in the case of Dominion of India v. Guruprosad Ram Gupta and others (A I R 1949 Cal 679), and in the case of Bhupendra Kumar Chowdhury v. Indian Union any others (55 C W N 251).

6. The learned Advocate for the plaintiff urges that the provisions in Risk Notes A and B have application only whop there is a loss, but they have no application to the case of non- delivery of the whole consignment or any package of the consignment, and, in support of his contention, he has relied on the case of Governor‑General in Council v. Gouri Shankar Mills, Ltd. (A I R 1951 Pat. 382), the case of Governor‑General of India v. Dedraj Bajoria (A I R 1948 Cal. 168), the case of Qadir Salamat Ullah v. Governor‑General in Council and another (A I R 1951 All. 438), the case of G. A. Jolli v. The Dominion of India (A I R 1949 Gal. 380), with which I respectfully disagree.

7. In the present case out of 25 bales of cotton yarn 23 bales were delivered to the consignee, and 1 bales could not be made over to the consignee. The lower Appellate Court dismissed the suit so far as the j of the bale is concerned, but decreed the suit in respect to one bale on the finding that the initial onus lay on the Railway authority to show how the consignment was dealt with during the time of transit or in their control. As I have already pointed out that in view of the provisions in Risk Notes A and B which have been duly executed by the consignor, he relieved the Railway authority from the initial onus inasmuch as there is no proof that the goods were packed in accordance with the Tariff rules or under rules laid down in any paper or any way protected. The provisions in Risk Notes A and B have made the defendant Railway authority immune from discharging any initial onus, and the plaintiff must succeed on his case in the plaint, and also on his evidence. The plaintiff has not made any allegation in the plaint that the loss or the non‑delivery of one packet was due to the negligence or misconduct on the part of the Railway authority or its servants nor there is any evidence to show that the loss or non‑delivery of one packet was due to any negligence or misconduct on the part of the Railway authority. This view of mine finds support in the case of The Chief Executive Officer, Rangpur District Consumers' Co‑operative Stores, Ltd. v. The Federation of Pakistan, which is a decision of a Division Bench of this Court.

8. I do not find any substance in the contention of the learned Advocate for the appellant that the plaintiff is estopped from giving any evidence that the goods were packed in accordance with the Tariff rules or the rules laid down in any paper, but, in my opinion, a consignor is entitled to give evidence as to how the goods were packed though there has been an admission on his part by executing Risk Notes A and B. But unfortunately, in the present case, the plaintiff did not choose to make any allegation as to how the goods were packed nor did he lead any evidence to show that the goods were packed in accord ance with the Tariff rules or that they were protected other wise.

9. In the result, the appeal is allowed. The judgments and decrees of the Courts below are set aside, and the suit is dismissed, but, in the circumstances of the case, I do not make any order as to costs. K. B. A. Appeal allowed.