Union Of India vs Udho Ram and Sons

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 1 May, 1962

Coram: J.L. Kapur, K.C. Das Gupta, Raghubar Dayal

In this case, the Court explained that the appeal arose after a certificate was granted by the Punjab High Court. The background involved a shipment by M/s Radha Ram Sohan Lal of Calcutta, which consigned certain goods to itself for delivery at Delhi. The railway receipt for the consignment was endorsed in favour of M/s Udho Ram & Sons, the plaintiffs, but a portion of the articles failed to reach them. Because the plaintiffs did not receive compensation for the loss of those articles, they instituted the suit that ultimately gave rise to the present appeal. The amount of loss suffered by the plaintiffs was not contested and had been determined by the trial court. The sole issue that remained between the parties was whether the loss of the goods while in transit from Calcutta to Delhi resulted from the misconduct and negligence of the railway or from causes beyond the railway’s control, a position asserted by the Union of India, the defendant.

The trial court found that the railway wagon in which the consignment was loaded had been properly rivetted and sealed at Howrah. It observed that when the train, which had departed Howrah at 1.30 a.m. on 1 October 1949, arrived at Chandanpur Station at 3.15 a.m. the same night, the seals and rivet on one door of the wagon were discovered to be open. The train had also halted for fourteen minutes at the Howrah‑Burdwan Link for a home signal at 2.05 a.m., and the railway protection police had escorted the train throughout its journey. The High Court accepted these factual findings and did not dispute them. However, the trial court went on to conclude that the precaution of posting railway protection police on a goods train, given the frequent thefts reported between Howrah and Chandanpur, amounted to the railway taking proper care of the goods entrusted to it as a carrier. Accordingly, the trial court held that the railway was not negligent nor guilty of misconduct, reasoning that the railway protection police, who normally travelled in the guard’s van, could not possibly be aware of what was occurring inside the other wagons or in the middle of the train during the journey. On this basis, the trial court dismissed the suit.

On appeal, the High Court reversed that view and held the railway responsible for the loss. The High Court reasoned that there was no evidence on record that the railway protection police had taken any precaution to prevent interference with the train while it halted for fifteen minutes at the Howrah‑Burdwan Link during the night. The Court noted the absence of any other watch‑and‑ward arrangement at the link and the lack of evidence regarding the strength of the railway protection police or their ability to guard the wagons effectively. Consequently, the High Court concluded that the railway’s servants had been negligent, that the railway administration was liable for the negligence of its employees, and that the loss of the goods was due to the railway’s misconduct and negligence. The High Court therefore set aside the trial court’s decree, awarded the plaintiffs the amount of loss that had been determined, and the Union of India subsequently obtained a certificate of fitness for appeal from the Punjab High Court and filed the present appeal.

In its assessment, the Court found that the railway employees had failed to take any steps to ensure that the wagons were protected from interference while the train was in motion. Consequently, the Court held that the railway servants were negligent and had done nothing to eliminate the possibility of theft as far as practicable. Because the railway administration could act through its employees, the Court concluded that the administration bore responsibility for the negligence of its staff. Accordingly, the loss of the goods was attributed to the misconduct and negligence of the railways. Based on this finding, the Court set aside the decree of the trial court and reversed its decision, granting the plaintiffs a decree for the amount of loss that the plaintiffs had suffered. The Union of India subsequently obtained a certificate of fitness for appeal from the Punjab High Court and filed the present appeal against that decree.

The Court observed that there was no evidence on record that the railway protection police escorting the train were sufficient in number to prevent interference with the goods during transit. In fact, the defendants in their written statement did not allege that any railway protection police had escorted the train. The only reference to the presence of such police came from the testimony of Chatterjee, D. W., who was then the Assistant Station Master at Chandanpur Railway Station. He mentioned the police only in the context of re‑sealing the wagon and did not record their presence in any of his messages or memoranda. During cross‑examination he stated that he could not recall the events at Chandanpur Station on 1 October 1949 and that his testimony was based solely on the records before him. Nevertheless, both the trial court and the High Court recorded a finding that railway protection police did escort the train. The Court noted that there was no explanation as to why the police could not have prevented interference with the wagons when the train stopped at the link, a point at which, according to the lower courts, thieves are believed to have accessed the wagon and tampered with its seal and rivets. In the absence of any proof concerning the strength of the police force, the appellant’s claim that the force was adequate could not be accepted.

The Court further acknowledged that, while precautions may not always succeed in averting theft during transit, the present case lacked any evidence regarding the extent of precautions taken or the specific actions of the railway protection police at the location where the train halted. The contention that the police could not have left the guard’s van because of uncertainty about the train’s stoppage could not be sustained. It was the duty of the police officers to alight at every stoppage of the train and to monitor the wagons as effectively as possible. The Court rejected any suggestion that there was a risk of the train departing suddenly and leaving the police unable to perform this duty.

The Court observed that when a train stops, the railway protection police must leave the guard’s van and inspect the wagons, whether the stop occurs at a station platform or at any other location. In the present case, the plaintiffs’ goods were loaded in a wagon situated in the centre of the train, specifically the twenty‑ninth carriage from the opposite end. The Court held that it was the duty of the railway protection police to dismount from the guard’s van at each stoppage and keep vigilant watch over the wagons. The Court explained that the need for such vigilance is even greater when the train halts at a place other than a railway station, because at a station there would ordinarily be other persons present whose presence would deter miscreants from tampering with any wagon. By contrast, when the train stops at a non‑station location, there is less likelihood of a deterrent effect, and therefore the police must be more watchful to prevent unauthorized persons from gaining access to the goods.

The Court further noted that the liability of the railways under section 72 of the Indian Railways Act is qualified by the provisions of section 151 of the Indian Contract Act. Section 151 requires that, in every case of bailment, the bailee must exercise the same degree of care that an ordinarily prudent person would exercise over his own goods of similar bulk, quality and value under comparable circumstances. The Court pointed out that an ordinary traveller would naturally keep a close eye on his own belongings, especially whenever the train stops. Consequently, the Court said that the standard of care required of the railway administration is not higher than that expected of any ordinary person; it is sufficient that the railway protection police, who are specially deputed to prevent loss of goods, dismount from the wagons and monitor them to ensure that no unauthorised person reaches the cargo. On this basis, the Court agreed with the High Court’s finding that the loss resulted from the negligence of the railway servants and, by extension, the railway administration. Accordingly, the Court dismissed the appeal, ordered costs to be paid, and recorded that the appeal was dismissed.