P L D 1960 Dacca 472 (PLP)

5. The learned Subordinate Judge, being of opinion that it was not possible for the miscreants to break open the rivet in a running train within ten minutes, disbelieved the story of theft and hence decreed the suit for Rs. 4,369‑14‑

0. The defendants then filed an appeal against the judgment and decree of the learned Subordinate Judge.

6. The learned Additional District Judge, who heard the appeal, also disbelieved the story of theft. He further found : (1) that the Railway was negligent in not supplying any connecting link between the Guard and the driver and this also amounted to a misconduct: (2) that the Railway Administration were liable for the loss of the plaintiff's goods : (3) that the defendants were not entitled to rely on the Risk Note, Exhibit B, because no such plea was taken in the written statement, nor any evidence was adduced on the point ; and (4) that the plaintiff had duly proved the value of the articles lost. He, therefore, affirmed the judgment and the decree passed by the Subordinate Judge and dismissed the appeal.

7. At the outset, we must observe that it was not the defen?dants' case in the written statement that these goods were despatched under Risk Notes A and B. We have, therefore, to see if the Railway took as much care of the goods as was required of them under sections 151, 152 and 161 of the Contract Act. Mr. Jani Alam, the learned Advocate for the appellants, has contended that the loss of the plaintiff's goods was not due to the negligence of the Railway and hence they were not liable for the same.

8. No doubt, it was the duty of the plaintiff to prove that the loss was caused by the negligence of the Railway Administra?tion. It is not disputed that the goods delivered by the Railway was short by one case and four bags. The Administration has attempted to explain the loss by saying that this was due to theft in the running train.

9. Hence the question is whether they had taken as much care of the goods as is required of them. The defendants' case was that the loss was due to theft which they could not have foreseen and prevented by taking all reasonable care and precau?tion and hence they were not answerable for it. They examined witnesses to prove that there was a theft in the running train. Both the Courts have disbelieved this story of theft. The learned Advocate for the Railway has however, failed to show, that the finding of the Courts below is against the weight of evidence or perverse. This finding of the Additional District Judge on this point, being a finding of fact cannot be disturbed in this Second Appeal. Hence it may be said that the Railway has not assigned satisfactory explanation for the loss. We, therefore, hold that there is not satisfactory evidence from which it could be inferred that they had taken proper care of the consignment as bailee of the goods consigned. We are, therefore, of opinion that the Courts below have rightly decreed this suit of the plaintiff.

10. Before leaving the case, we may observe that some argument was advanced on the question of Railway's duty to provide vacuum brake in a goods train. It seems that such vacuum brake is considered essential in a passenger train. It may well be asked why it should not also be considered essential in a goods train. The Guard has stated that when he saw that parcels were being thrown off from the train he tried to stop, the train but he was unable to do so on account of the absence of vacuum.

11. The learned Advocate for the Railway Administration has attempted to argue that the Railway is not bound to provide such vacuum‑brakes in a goods train according to him, there are no rules for providing a vacuum brake in a goods train. No such evidence was given in this case. This point was taken as an additional ground for the first time in the Second Appeal.

12. In Federation of Pakistan v. Fazal Karim (P L D 1954 Lah. 245), an identical question arose and the Court observed: "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:" It is thus clear that in the above case the Railway Administration accepted the position that there should be a vacuum in a Guard's brake. Hence we fail to appreciate the contention of the learned Advocate that the failure to provide brake should not be con?sidered a negligent act on the part of the Railway.

13. We may further point out that in Fazal Karim's case the armed guard who was in the middle of the train saw the throwing of the parcels from the running train but could not communicate the said fact to the Guard and, therefore, the Court observed at page 314: "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 neces?sary precautions for the safety of the consignments. An armed guard would be of little use if he 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 consignors' goods."

14. The Court was suggesting that some means of com?munication should also be provided between the police in the train and the Guard so that stoppage of the train can be arranged in case of theft. The question that there should be a vacuum in a Guard's brake was however not disputed.

15. Hence, if it was assumed that a theft was committed as alleged by the Administration, even then it would have been difficult for the Railway to escape liability for the loss sustained by the plaintiff. The question of damage awarded in this case has not been challenged before us.

16. In the result, we affirm the judgment and decree of the Courts below and dismiss this appeal with costs. KHAN, J.‑I agree. K. B. A.?????????????????????????????????????????????????????????????????????????????????? ?????????? Appeal dismissed.