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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: M/s.  UDHO RAM & SONS

DATE OF JUDGMENT: 01/05/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR KAPUR, J.L. GUPTA, K.C. DAS

CITATION:  1963 AIR  422            1963 SCR  (2) 702

ACT: Railway-Loss  of  goods  in  transit-Negligence  of  railway servants-Liability-indian  Railways Act, 1890 (IX of  1890), s.   72-Indian Contract Act, 1872 (IX of 1872), s. 151.

HEADNOTE: Certain  goods  consigned by a merchant to  the  respondent. Some of the goods were lost in transit.  The respondent sued the  railway authorities for damages for the loss on  ground that  the  loss ’Was incurred due to the negligence  of  the railway  authorities.   The  defence raised  was  that  loss occurred  due to factors beyond the control of  the  railway authorities.  The suit was dismissed by the trial court.  On appeal  the High- Court reversed the judgment of  the  trial court  and found that the loss was caused by the  negligence and misconduct of the railway authorities in as much as  the railway police failed to take precaution to see that no body interfered with the goods. The  Union of India appealed to the Supreme Court by way  of certificate granted by the High Court. Held, that the responsibility of the railway under s. 72  of the  Indian Railways Act is subject to the provisions of  s. 151  of the Indian Contract Act and the Railway as a  bailer was bound to take as much care of the goods bailed to it  as a   man   of   ordinary   prudence   would   under   similar circumstances.   The  loss  having taken place  due  to  the negligence of the railway servants the railway is liable for the loss incurred by the respondent.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 581 of 60. Appeal from the judgment and decree dated April 23. 1958, of the Punjab High Court (Circuit Bench) Delhi in Civil Regular First Appeal No. 32-D of 1953. Naunit Lal and D. Gupta, for the appellant, 703 Gurbachan Singh and Harbans Singh, for the respondent. 1962.  May 1. The Judgment of the Court was delivered by RAGHUBAR  DAYAL, J.-This, appeal, on certificate granted  by

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the   Punjab   High   Court,   arises   in   the   following circumstances. M/s.   Radha  Ram Sohan Lal of  Calcutta  consigned  certain goods  to  self  at  Delhi.   of  the  consignment,  certain articles  were not delivered to M/s.  Udho Ram &  Sons,  the plaintiffs,  in  whose favour the railway receipt  had  been endorsed  by  the consigner.  Having failed to  receive  the compensation  for  the  loss  suffered  on  account  of  the articles not delivered, the suit giving rise to this  appeal was  instituted.  There is now no dispute’ about the  amount of  loss,  determined  by  the Court,  as  suffered  by  the plaintiffs. The only dispute between the parties is whether the loss  of goods  in transit between Calcutta and Delhi was due to  the misconduct and negligence of the railways or not.  The Union of  India, the dependent, contended that the  loss  occurred due  to  circumstances  beyond the control  of  the  railway administration. The  trial Court found that the railway wagon in  which  the consignment was loaded bad been thereafter properly  riveted and  sealed at Howrah, that the seals and rivet of one  door of  the  wagon  were found open when the  train  which  left Howrah at 1. 30 a. m. on October 1, 1949, reached Chandanpur Station  at  3.15 a. m., the same night,  the  train  having stopped  for 14 minutes at the Howrah-Burdwan Link  for  the home signal at 2. 05 a. m., and that the railway  protection police  escorted the train.  The High Court  accepted  these findings and they are not questioned. 704 The trial Court, however, found that the precaution taken of posting railway protection police in a good,; train, in view of the frequent thefts in running trains between Howrah  and Chandanpur,  amounted to the railways taking proper care  of the  goods delivered to them as carriers and that  therefore the   railways  were  not  guilty  of  any  negligence   and misconduct.  It was of the view that the railway  protection police which usually traveled in the guard’s van, could  not possibly know what was happening in the wagons at the  other and  or in the middle of the train during the  journey.   It therefore dismissed the suit. On appeal, the High Court held the railways responsible  for the  loss which, in its view, was due to its negligence  and misconduct inasmuch as there was no evidence on record  that the  railway protection police took any precautions  to  see that nobody interfered with the train when it halted for  15 minutes  at the Howrah-Burdwan Link at night.  There was  no other arrangement for watch and ward at the Link.  There was no  evidence  as  to what was the strength  of  the  railway protection  ,police or to show that it did stir out  of  the train  see  that the wagons were not  interfered  with.   It therefore  concluded that the servants of the  railway  were negligent  and  did nothing to see  that  opportunities  for theft  were eliminated as far as possible, that the  railway administration  was  responsible for the negligence  of  its employees  as  it could act through its employees  and  that therefore  the lose of goods was due to the  misconduct  and negligence  of  the  railways.  It  therefore  reversed  the decree  of the trial court and decreed the plaintiffs’  suit for the amount of loss hold suffered by the plaintiffs.   It is this decree against which the Union of India has obtained the  certificate of fitness for appeal from the Punjab  High Court and has preferred this appeal. 705 There  is no evidence on record that the railway  protection police which escorted the train was adequate in strength for

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the  purpose  of seeing that the goods were  not  interfered with in transit.  In fact, the defendants did not allege  in their  written statement that any railway protection  police escorted  the train.  The present of the railway  protection police with the train was just deposed to by Chatterjee,  D. W,  10,  the  then Assistant Station  Master  at  Chandanpur Railway Station.  He did not mention that fact in any of his messages  or  memorandum in which he  simply  mentioned  the presence  of  the railway protection police at the  time  of re--sealing the wagon.  He stated in cross examination  that he did not remember from memory the events of the occurrence at Chandanpur station on October 1, 1949, and was making his statement  on the basis of the record before him.   However, both the Courts below have recorded the finding that railway protection  police  did  escort  the  train.   There  is  no evidence  as  to why the police force could not see  to  the non-interference  with the wagons when the train  halted  at the  Link where, according to the Courts below, the  thieves probably  get  at the wagon and tampered with its  seal  and rivets.   In the absence of any evidence about the  strength of  the  railway protection police, the  contention  of  the appellant that the force was adequate cannot be accepted. It may be true that any precautions taken may not be  always successful against the loss in transit on account of theft,, but in the present case there is no evidence with respect to the extent of the precautions taken and with respect to what the railway protection police itself did at the place  where the train had to stop.  We cannot accept the contention that the  railway protection police could not have moved  out  of the  guard’s van due to the uncertainly of the  stoppage  of the train at the 706 signal.  It was the job of its members to get down on  every stoppage  of  the train and to keep an eye  at  the  various wagons, as best as they could. There could be no risk of the train leaving them on the spot suddenly.   They could climb up when the train was to  move. The  wagon in which the plaintiffs’ goods were, was  in  the centre  of  the train.  It was the 29th  marriage  from  the other  end.   It  must be taken to be the  duty  of  railway protection police to get out of the guard’s van whenever the train  stops, be it at the railway platform or at any  other place.   In  fact, the necessity to get down and  watch  the train  when  it  stops at a place other than  a  station  is greater  than  when the train stops at a Station,  where  at least  on  the station side there would be some  persons  in whose presence the miscreants would not dare to temper  with any  wagon  and  any tempering to be done at  a  station  is likely to be on the off side. The responsibility of the railways under s. 72 of the Indian Railways  Act is subject to the provisions of s. 151 of  the Indian  Contract Act.  Section 151 states that in all  cases of bailment, the bailer is bound to take as much care of the goods  bailed  to him as a man of ordinary  prudence  would, under  similar  circumstance, take of his own goods  of  the same bulk, quality and value as the goods bailed.   Needless to say that an ordinary person traveling in a train would be particular  is keeping an eye on his goods  especially  when the  train  stops.  It is not therefore imposing  a  higaher standard  of care on the railway administration when  it  is said  that its staff, and especially the railway  protection police  specially deputed for the purpose of seeing that  no loss  takes  place to the goods, should get  down  from  the wagon and keep an eye on the wagons in the train in order to see that no unauthorised person gets at the goods.

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707 We  are  therefore of opinion that the finding of  the  High Court that the loss took place due to the negligence of  the railway   servants   and,  consequently,  of   the   railway administration, is justified. We therefore dismiss the appeal with costs. Appeal dismissed.