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In the present case there is ' no proof that any disclosure was asked for in this behalf by the consignor at any time before the, suit was filed. Ratio |
Therefore if the railway did not disclose how the consignment was dealt with throughout before the suit was filed, it cannot be said to have committed breach of this term of the contract. Ratio |
The disclosure envisages a precise statement of how the consignment was dealt with by the railway or its servants. Ratio |
if the disclosure is asked for before the litigation commences and is not given or the disclosure is given but it is not considered to be sufficient by the consignor, the dispute has to be judicially decided and it is for the court then to say if a suit is brought whether there has been Ia breach of this term ' of the ... |
After this, comes the stage where the consignor or the consignee ' being dissatisfied brings a suit for compensation. Ratio |
At that stage evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation to the Consignor or which might have been made in the written statement in reply to the suit. Ratio |
When the railway administration has given its evidence in proof of the disclosure and the plaintiff is not satisfied with the disclosure made in the evidence, the plaintiff is entitled to ask the court to call upon the railway to fulfil its obligation under the contract and the railway should then .have the opportunity... |
Thus in addition to the evidence that the railway may adduce on its own and in doing so the railway has necessarily to keep in mind the provisions of section 114 of the Indian Evidence Act, the plaintiff can and should draw the attention of the court if he feels that full disclosure has not been made. Ratio |
, In .that case he can ask the court to require the railway to make further disclosure and should tell the court what further disclosure he wants. Ratio |
It is then for the court to decide whether the further disclosure .desired by the plaintiff should be made by the railway, and if the court decides that such further disclosure 154 should be made the railway has to make such further disclosure as the court orders it to make on the request of the plaintiff. Ratio |
If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the court, the railway would be in breach of its contractual obligation of disclosure. Ratio |
It is at this stage therefore that the railway can be truly said to be in breach of its contractual obligation of disclosure, and that breach arises because the railway failed to disclose matters which the court on the request of the plaintiff asks it to disclose. Ratio |
The question then is what is the effect of this breach. Ratio |
It is remarkable that the Privy Council did not lay down that as soon as the breach is made as above the risk note comes to an end and the responsibility of the railway is that of a bailee under section 72 (l) of the Act. Ratio |
In the observations already quoted, the Privy Council has gone on to say that after this stage is over, the question may arise whether misconduct may be fairly inferred from the evidence of the railway. Ratio |
It seems to us therefore that even if there is a breach of the term as to full disclosure it does not bring the contract to an end and throw the responsibility on the railway as if the case was a simple case of responsibility under section 72(1) of the Act; the case is thus not assimilated to a case where the goods are... |
The reason for this seems to be that the goods have already been carried at the reduced rates and the consignor has taken advantage of that term in the contract. Ratio |
Therefore, even though there may be a breach of the term as to complete disclosure by the railway the consignor cannot fall back on the ordinary responsibility of the railway under section 72 (1) of the Act as if the goods had been carried at railway 's risk at ordinary rates, for he has derived the advantage of the go... |
The risk note would in our opinion continue to apply and the court would still have to decide whether misconduct can be fairly inferred from the evidence of the railway, with this difference that where the railway has been in breach of its obligation to make full disclosure misconduct may be more readily inferred and s... |
But we do not think that the conditions in the risk note can be completely ignored simply because there has been a breach of the condition of complete disclosure. Ratio |
The view of the Patna High Court that as soon as there is breach of the condition relating to complete disclosure the risk note can be completely ignored and the responsibility of the railway judged purely on the basis of section 72 (1) as if the goods were carried at the ordinary rates on railway 's risk cannot theref... |
We may point out that in Surat Cotton Spinning and Weaving Mills Limited 's case, (I) the plaintiffs wanted the guard of the train to be examined and he was undoubtedly a material witness. PRE |
Even so the witness was not examined by the railway. PRE |
Finally therefore the Privy council allowed the appeal with these observations at p. 189: "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 consignmen... |
These observations show that even though there may be a breach of the obligation to give full disclosure that does not mean that the risk note form Z or form B can be ignored and the responsibility of the railway fixed on the basis of section 72 (1) as a simple bailee. Ratio |
If that was the effect of the breach, the Privy Council would not have come to the conclusion after applying section 114 (g) of the Evidence Act in the case of Rohead that misconduct by complicity in the theft of some servant or servants of the railway may be fairly inferred from the railway 's evidence. Ratio |
The appeal was allowed by the Privy Council after coming to the conclusion that misconduct by the servant or servants of the railway might be fairly inferred from the evidence including the presumption under section 114(g) of the Evidence Act. Ratio |
It seems to us clear therefore that even if there is a breach of the obligation to make full disclosure in the sense that the railway does not produce the evidence desired by the plaintiff in the suit even though the request of the plaintiff is endorsed by the court, the effect of such breach is not that the risk note ... |
But where there is a breach by the railway of the obligation to make full disclosure the court may more readily infer misconduct on the part of the railway or its servants or more readily presume under section 114 (g) of the Evidence Act against the railway. Ratio |
This in our opinion is the effect of the decision of the Privy Council in Surat Cotton Spinning and Weaving 'Mills Limited 's case(1). Ratio |
As we have already said we are in respectful agreement with the law as laid down there. Ratio |
So far as the present appeal is concerned, there was no de by the consignor for disclosure before the suit. Ratio |
Even after the suit was filed there was no statement by the respondent at any (1) [1937] L.R. 64 I.A. 176. Ratio |
156 stage that the disclosure made by the appellant in the evidence was in any way inadequate. Ratio |
The respondent never told the court after the evidence of the railway was over that he was not satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the respondent wanted. Ratio |
In these circumstances it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure. Ratio |
In the circumstances we are of opinion that the risk note would still apply and the court would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it. Ratio |
If the court cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct. Ratio |
that burden, if it arises, has clearly not been discharged for the respondent led no evidence on his behalf to discharge the burden. Ratio |
We therefore turn to the evidence to see whether from the evidence produced by the railway a fair inference of misconduct of the railway or its servants can be drawn on the facts of this case. Ratio |
It is not in dispute in this case that the wagon containing the consignment arrived intact at Mughalsarai on December 9, 1947. Ratio |
Besides there is evidence of Damodar Prasad Sharma, Assistant Trains Clerk, Mughalsarai, P.W. 14, who had the duty to receive trains at the relevant time that 192 Dn. goods train was received by him on line No. 4 and that there were two watchmen on duty on that line for examining the goods train and they kept notes of ... |
He also produced the entry relating to the arrival of the train and there is nothing in the entry to show anything untoward with.this wagon when the train arrived at Mughalsarai. Ratio |
His evidence also shows that the train was sent to the marshaling yard on December 11, 1947. Ratio |
Finally there is the evidence of Chatterji (P.W. 8) who is also an Assistant Trains Clerk. Ratio |
It was his duty to make notes with respect to goods trains which left Mughalsarai. Ratio |
He stated that this wagon was sent by train No. 214 on December 12, 1947 in the evening. Ratio |
He also stated that the wagon was in good condition and produced the entry relating to this wagon. Ratio |
It appears however from his evidence that rivets and seals are examined by the watch and ward staff and they keep record of it. Ratio |
Apparently therefore he did not actually inspect the wagon before it left though he says that it was in good condition. Ratio |
The relevance of his evidence however is only this that in his register showing the dispatch of trains there is no entry to the effect that there was any thing wrong with this wagon when it was dispatched. Ratio |
The most important evidence however is of the guard of the train, Ram Prasad Ram (P.W. 2). Ratio |
He stated that before the train started from Mughalsarai he patrolled both sides of it and the place from where the train started was well lighted and watch and ward staff also patrolled the area. Ratio |
He also stated that the rivets and seals of all the wagons in the train were checked at Mughal sarai and there was apparently nothing wrong with them. Ratio |
Now if 157 the evidence of the guard is believed it would show that the wagon containing the consignment was intact at Mughalsarai upto the time 214 goods train including this wagon left Mughalsarai. Ratio |
If so there would be no reason to hold that anything was done to the wagon before the train left Mughalsarai. Ratio |
It may be mentioned that the trial court accepted the evidence of the guard while the High Court was not prepared to believe it. Ratio |
On a careful consideration of the evidence of the guard we see no reason why his evidence should not be believed. Ratio |
It is obviously the duty of the guard to see that the train was all right, when he took charge of it. Ratio |
It appears that in discharge of his duty the guard patrolled the train on both sides and looked at rivets and seals to see that they were intact. Ratio |
It is, however, urged that the guard 's evidence does not show that the seals which he found intact were the original seals of Wadibundar and the possibility is not ruled out that the original seals might have been tampered with and new seals put in while the train was in the marshaling yard at Mughalsarai for two days... |
It would perhaps have been better if the evidence of the watch and ward staff had been produced by the railway; but if the evidence of the guard is believed that the seals and rivets were intact when the train left Mughalsarai, the evidence of the watch and ward staff is ' not necessary. Ratio |
It is true that the guard does not say that the seals were the original seals of Wadibundar but it appears from the evidence of Jagannath Prasad (P.W. 9) who was the Assistant Station Master at Dildarnagar that he found when the train arrived there that the northern flapdoors of the wagon were open while southern flapd... |
This evidence suggests that the original seals could not have been tampered with when the train left Mughalsarai and that the guard 's evidence that seals and rivets were intact shows that nothing had happened to the wagon while it was at Mughalsarai. Ratio |
Further it is also in evidence that there is ample light in the marshalling yard at Mughalsarai and that watch and ward staff is posted there as well. Ratio |
So the chances of tampering with the seals and rivets in the marshalling yard in the circumstances are remote. Ratio |
As such the evidence of the guard that the seals and rivets were intact when he left with the train on the evening of December 12, would apparently exclude the possibility that there was any tampering with the wagon before it left Mughalsarai. Ratio |
It is true that on the last day when the evidence for the railway was recorded and the guard had been recalled for further cross examination it was suggested to him that the railway servants at Mughalsarai had removed the bales and were responsible for the theft. Ratio |
He however denied that. Ratio |
But it is remarkable that if the respondent was dissatisfied with the evidence of the guard which was to the effect that the wagon was all right when he left Mughalsarai with the train on December 12, it did not ask the court to order the railway to produce the evidence of the watch and ward staff with respect to this ... |
The respondent could ask for such disclosure. Ratio |
If the court L/B(D)2SCI 12 158 had accepted the request and the railway had failed to produce the evidence of the watch and ward staff it may have been possible to use section 114 of the Evidence Act and hold that the watch and ward staff having not been produced their evidence, if produced, would have gone against the... |
But in the absence of any demand by the respondent for the production of the watch and ward staff which he could ask for, we see no reason why the statement of the guard to the effect that seals and rivets of the wagon were intact when he left Mughalsarai with the train should not be accepted. Ratio |
In the absence of any demand by the respondent for the production of watch and ward staff his mere suggestion that the railway servants at Mughalsarai might have committed the theft cannot be accepted. Ratio |
There is the further evidence of the guard as to what happened between Mughalsarai and Buxar. Ratio |
It appears between these two stations the train stops only at Dildarnagar. Ratio |
The evidence of the guard however is that the train suddenly stopped between the warner and home signals before it reached Dildarnagar. Ratio |
He therefore got down to find out what the trouble was. Ratio |
He found that the hosepipe between two wagons had got disconnected and this resulted in the stoppage of the train. Ratio |
The evidence further is that the hosepipe was intact when the train started from Mughalsarai. Ratio |
He made a note of this in his rough memo book which was produced. Ratio |
It is noted by him that the northern flap door of this wagon was open. Ratio |
He reconnected the hosepipe and went up to Dildarnagar. Ratio |
There he reported the matter to the station staff. Ratio |
His further evidence is that there were three escorts with the train and that they were guarding the train when the train was standing between the warner and the home signals before it reached Dildarnagar. Ratio |
Nothing untoward was reported to him by these escorts. Ratio |
It was at this stop between the two signals that the guard noticed that the rivets and seals of this wagon on one side had been broken. Ratio |
The case of the railway is that there was theft in the running train between Mughalsarai and Buxar and that is how part of the consignment was lost. Ratio |
The evidence of the guard does suggest that something happened between Mughalsarai and Dildarnagar and then between Dildarnagar and Buxar. Ratio |
In addition to this the evidence of the station staff at Dildarnagar is that the flapdoors of this wagon were found open when the train arrived at Dildarnagar. Ratio |
The contents were not checked at Dildarnagar as there was no arrangement for checking at that station. Ratio |
The wagon was resealed at Dildarnagar, and the fact was noted in the station master 's diary. Ratio |
It may be mentioned that the evidence of the station staff was that the wagon was resealed though the guard says that it was riveted also at Dildarnagar. Ratio |
The entry in the guard 's rough memo however is only that the wagon was resealed. Ratio |
The guard certainly says that it was rivetted also at Dildarnagar but that is not supported by the station staff and the entry in the guard 's rough memo. Ratio |
It seems that the statement of the guard may be due to some error on his 159 part. Ratio |
That may also explain why, when the train arrived at Buxar, the flapdoor again was found open, for it had not been rivitted at Dildarnagar. Ratio |
Then the evidence of the Buxar station staff is that the northern flapdoors of this wagon were open when the train arrived at Buxar. Ratio |
It was then resealed and rivetted and was detached for checking. Ratio |
The checking took place on December 14th at Buxar. Ratio |
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