JUDGMENT S.S. Dhavan, J.
1. These are three appeals by the Union of India as the owner of the Northern Railway from the decree of the IInd Civil Judge of Meerut allowing in part the appeal of a consignor of goods from the decree of the Munsif of Ghaziabad dismissing his three suits for the recovery or damages, and awarding damages in all three suits. The suits were disposed of by a common judgment by both the courts below and are being similarly decided by a single judgment by me. The facts are these. The plaintiff-respondent Ram Richpal is the sole proprietor of a firm, Messrs Umarao Singh Ram Richpal. He booked three consignments of handloom cloth to the Northern Railway at Pilakhwa station to be delivered to an addressee at Raukshal station on the Northern Railway. The goods arrived in due course at Raukshal but no one turned up to take delivery of them. The three consignments had been despatched from Pilakhwa station on 8-2-52, 2-2-52 and 2-2-52 respectively. On being informed that no one had taken delivery of the goods the plaintiff, on 21-3-52, re-booked all the three consignments back to Pilakhwa after filling the usual indemnity form in favour of the Railway.
The consignments reached Pilakhwa on 30th March, 1952, but when the plaintiff went to the station to take delivery he found all the bales in each consignment drenched with water and damaged. Thereupon he demanded open delivery which was refused by the Station Master. The plaintiff took the matter to the higher authorities who undertook, to grant him an open delivery. There was delay in delivering the goods and open delivery was made on 2nd July 1952. The Railway Officer who was in charge of delivery assessed the damages (without prejudice to the rights of the Railway) as between 25 to 27 per cent. Thereupon the plaintiff claimed damages and ultimately filed three separate suits for their recovery after giving the usual notice under Section 80 of the C. P. C. Those are suits No. 412 of 1963 claiming Rs. 2935/-, suit No. 413 of 1953 demanding Rs. 3619/11/6, and suit No. 414 of 1953 asking for Rs. 1877/- as compensation for loss due to the negligence and misconduct of the Railway and to the fluctuation of the market rate.
2. The Railway resisted all the three suits and denied all liability. It took a number of pleas in defence but in this appeal only one has been pressed--namely, that the plaintiff had failed to prove that the damage was caused by the misconduct or negligence of the Railway administration.
3. The learned Munsif held that the plaintiff failed to prove any misconduct or negligence on the part of the Railway administration and was therefore not entitled to claim any damages. He dismissed an the three suits. On appeal the learned Additional civil Judge held that as the goods were under the control of the Railway administration and the manner of their handling and disposal while in the custody of the Railway was a fact within its exclusive knowledge, it was under a duty to disclose this fact and it had not done so the plaintiff was entitled to ask the Court to infer that the facts, if disclosed, would have been unfavourable to the Railway. The learned Judge reversed the finding of the trial Court on the Issue of the negligence or misconduct of the Railway and held that in the circumstances and on the facts the negligence of the Railway had been established by inference. He allowed all the three appeals in part and decreed the three suits for Rs. 1562/3/-, Rs. 1903/- and Rs. 947/- respectively. The Union of India has come to this Court in second Appeal in all the three cases.
4. Learned counsel for the appellant urged only one point in support of this appeal. He contended that the lower appellate Court had wrongly held that the Railway was under any obligation to disclose to the plaintiff how the consignments were dealt with during the time when these were in its possession or control. He pointed out that Section 74-D of the Railways Act which imposes this obligation of disclosure on the Railway applies only under two conditions namely, (1) where the whole of the consignments of goods or the whole of any package forming part of a consignment carried at owner's risk is not delivered to the consignee, and (2) where in respect of any consignment of goods which had been so covered or protected that the covering of protection was not readily removable by hand, it is pointed out to the Railway administration at the time of delivery that any part of the consignment or package had been pilferred in transit. Learned counsel argued that neither of these two conditions existed m the present case as the three consignments had been delivered to the plaintiff and there had been no pilferage. That being so, learned counsel argued, the essential condition for the obligation of the Railway to disclose the manner of dealing with the consignment during the period of its custody was absent, and the learned appellate Judge had erred in relying on Section 74-D of the Railways Act in imposing this obligation on the Railway.
5. In my opinion this argument is based on the assumption that Section 74-D of the Railways Act is the only provision of law which imposes an obligation on the Railway to disclose certain facts under certain circumstances. That is not so. That section imposes a statutory provision on the Railway administration to disclose to a consignor of goods how the consignment was dealt with throughout the time it was in its possession or control. The object of this provision is to enable the consignor to point out to the Railway administration that the facts disclosed by it raise a fair inference of negligence or misconduct on the part of the Railway or its servants. But Section 74-D does not have the effect of repealing the provisions of the Evidence Act providing for proof by inference or presumption, or of the Code of Civil Procedure providing for interrogatories requiring a party to disclose facts within its exclusive knowledge. Even in cases not covered by Section 74-D of the Railways Act, a consignor of goods claiming damages from the Railway for loss or destruction of the goods allegedly due to the negligence or misconduct of the Railway of its servants can rely on the provisions of the Evidence Act and the Code of Civil Procedure in discharging the onus of proof of such negligence or misconduct.
6. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of providing that fact is upon him. Illustration (b) to this Section runs thus: "A is charged with travelling on a Railway without ticket. The burden of proving that he had a ticket is on him." Thus under this section, even in a case where a person is charged with the criminal offence of travelling without ticket, the general rule imposing an obligation on the prosecution to prove the facts establishing the guilt of the accused is modified and the accused is required to prove that he had a ticket. The reason is that the fact whether he purchased or did not purchase a ticket is within the exclusive knowledge of a passenger and therefore he must prove that he purchased a ticket. Then again, Section 114 of the Evidence Act says that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (g) to this Section runs thus:
"The Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the persons who withhold it."
This illustration incorporates the principle laid down in the English case of Armory v. Delamirel, (1722) 93 ER 664.
7. The combined effect of Sections 106 and 114 on the onus of proof of negligence and misconduct of the Railway or its servants in a suit filed by a consignor for compensation for damage to the goods consigned by him may be stated thus. Under Section 72 of the Railways Act the liability of a Railway administration for the loss, destruction or deterioration of goods delivered to it to be carried by Railway shall be that of a bailee under Sections 151, 152 and 162 of the Contract Act. But this liability may be reduced if the goods are carried at a special reduced rate called the owner's risk rate, in such a case the railway administration shall not be responsible for any loss, destruction or damage to such goods from any cause whatsoever except upon proof that such loss etcetra was due to the negligence or misconduct on the part of the railway or its servants. (Section 74-C of the Railways Act). Where goods are carried at what is known as the owner's risk rate and damaged or destroyed in transit the onus of proving negligence or misconduct on the part of the railway shifts and it is for the consignor to prove it.
But Section 74-C was not intended to impose an impossible burden on the consignor in such cases, otherwise there was no point in providing that he will be entitled to claim damages if he proves negligence or misconduct on the part of the railway. To give the right to claim damages of proof of negligence or misconduct but to impose an Impossible burden of proof is to take away with one hand what is given by the other. Obviously this was not the Intention of the legislature. Therefore, in a case covered by Section 74-C the consignor who claims damages on the ground of misconduct or negligence on the part of the railway can rely on the provisions of the Evidence Act and ask the Railway to disclose certain facts if they are within its exclusive knowledge; and if the Railway does not disclose them he can ask the court to draw such inferences from its omission as are permitted under the law.
8. Applying these principles to the facts of the present case, the position is as follows. The plaintiff-respondent consigned certain goods for carriage by Railway at owner's risk rates. The finding of the lower Courts is that the goods were in good condition when they were entrusted to the Railway, but found drenched with water when they were delivered at destination. Obviously something happened to the goods when they were in the custody of the railway, it was impossible for the plaintiff to prove where, how, and when the goods were so drenched, as this fact was within the exclusive knowledge of the railway. Under Section 106 of the Evidence Act the railway was bound to disclose what happened to the goods and how they were dealt with while under its custody. It did not care to lead any evidence which would have negatived misconduct or negligence on the part of itself or its servants. Its failure entitled the plaintiff to ask the Court to infer that the facts if disclosed would have been unfavourable to the railway and the court was entitled to draw this inference at its discretion.
9. For these reasons I see no error of law in the assessment of evidence by the lower appellate Court. The three appeals are dismissed with costs.