# UNION OF INDIA v. MAHADEOLAL PRABHUDAYAL February 23, 1965 - **Citation:** [1965] 3 S.C.R. 145 - **Court:** Supreme Court of India - **Decided:** 1965-02-23 - **Bench:** K. N. Wanchoo, J. R. MuDHOLKAR ANDS. M. SIKRI - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-mahadeolal-prabhudayal-february-23-1965-3387 - **Pages:** 16 ## Headnote Indian Railways Act (!f of 1890), ss. 72 and 77-Risk-note in Form Z-Mode of proof of liability of railway administrationNotice under s. 77-When necessary. Out of a consignment of 60 bales ·of piece goods despatched by the Railway, under risk-note Form Z, only 29 bales were delivered to the respondent who was the consignee. By sending the consignment thus, the consignor got a specially reduced rate but the burden was thrown on him, of proving misconduct on the part of the railway or its servants, if there was a loss of goods. The risk· note also imposed an obligation on the Railway, to disclose how the consignment was dealt with by it, during the time the consignment was in its i;ossession or control. The respondent wrote a· letter to the Chief Commercial Manager of the Railway stating that 60 D bales were booked but only; 29 bales had been delivered, and that a suit for damages would be filed. The letter was sent within 6 months of the booking of the consignment and contained the details as to how the amount of damage was arrived at. Later on, a notice was given under s. 80 of the Civil Procedure Code, 1908, and a suit was filed for damages. But, before the filing of the suit, there was no demand by the consignor for a disclosure as to how the consignment E was dealt with by the Railway throughout the period it was in its possession or control. The Railway however, made a disclosure in its written statement as 'to how the consignment was dealt with throughout that period. Its defence was that, there was a theft in the running train and that was how part of the consignment was lost and not due to any misconduct on the part of the Railway or its eervants. l!:ven after the suit was filed and evidence let in at the I!' G trial, by 'the ra'.lway there was no statement by the respondent at any stage that the disclosure made by the Railway in the written statement or in the evidence, was in any way inadequate. The respondent never told the court a,fter the evidence of the Railway was over, that he was not satisfied with the disclosure and that the Railway should be asked to make a further disclosure. The suit was dismissed by the trial court but decreed on appeal, by the High Court. In the appeal to the Supreme Court it was contended that, (i) the suit was barred by s. 77 of the Indian Railways Act, 1890, inasmuch as notice required therein was not given by the respondent, and (ii) under the terms of the risk-note the Railway was absolved from all responsibility for the loss of the goods consigned thereunder, from any cause whatsoever. except upon proof of misconH duct of the Railway or its servants, that the burden of proving such misconduct was on the resp0ndent and th!tt the respondent had failed to discharge the burden. HELD: (i) A notice under s. 77 of the Act is necessary in the case of non-deHvery which arises from the loss of goods. Though the letter, written by the respondent to the Chief Commercial Manager, was not specifically stated to be a notice under the section it gave all the particulars necessary for such a notice and it was also given within time prescribed. Therefore, the letter was sufllcjent notice for the purpose of the Act. rl49 1)..Fl 146 SUPREME COURT REPORTS [1965] 3 s.c.R. Governor Genera! in Council v. Musaddi!a! [196113 _S.C.R. 647 and Jatmu!! Bhojraj v. The Darjeeling Himalayan Railway Co. Ud. [19631 2 S.C.R. 832, followed. (ii) The view of the High Court, that there was a breach of the condition relating to complete disclosure, and that on such. breach the risk-note could be completely ignored and the responsibility of the Railway judged purely on the basis of s. 72(1) of the Act, as if the ·gceds were consigned at the ordinary rates on the Railway's risk, was not correct. [154 Hl The responsibility of the railway administration t~ disclose to the consignor as _to how the consignment was dealt with throughcut th2 time it was in its possession 'Or control arises ~t once, ~nder the risk-note, in either ## Text _Characters 0–39,810 of 47,659. This is a partial read: ask again with offset=39810 for what follows._ A B c UNION OF INDIA v. MAHADEOLAL PRABHUDAYAL February 23, 1965. [K. N. WANCHOO, J. R. MuDHOLKAR ANDS. M. SIKRI, JJ.] Indian Railways Act (!f of 1890), ss. 72 and 77-Risk-note in Form Z-Mode of proof of liability of railway administrationNotice under s. 77-When necessary. Out of a consignment of 60 bales ·of piece goods despatched by the Railway, under risk-note Form Z, only 29 bales were delivered to the respondent who was the consignee. By sending the consignment thus, the consignor got a specially reduced rate but the burden was thrown on him, of proving misconduct on the part of the railway or its servants, if there was a loss of goods. The risk· note also imposed an obligation on the Railway, to disclose how the consignment was dealt with by it, during the time the consignment was in its i;ossession or control. The respondent wrote a· letter to the Chief Commercial Manager of the Railway stating that 60 D bales were booked but only; 29 bales had been delivered, and that a suit for damages would be filed. The letter was sent within 6 months of the booking of the consignment and contained the details as to how the amount of damage was arrived at. Later on, a notice was given under s. 80 of the Civil Procedure Code, 1908, and a suit was filed for damages. But, before the filing of the suit, there was no demand by the consignor for a disclosure as to how the consignment E was dealt with by the Railway throughout the period it was in its possession or control. The Railway however, made a disclosure in its written statement as 'to how the consignment was dealt with throughout that period. Its defence was that, there was a theft in the running train and that was how part of the consignment was lost and not due to any misconduct on the part of the Railway or its eervants. l!:ven after the suit was filed and evidence let in at the I!' G trial, by 'the ra'.lway there was no statement by the respondent at any stage that the disclosure made by the Railway in the written statement or in the evidence, was in any way inadequate. The respondent never told the court a,fter the evidence of the Railway was over, that he was not satisfied with the disclosure and that the Railway should be asked to make a further disclosure. The suit was dismissed by the trial court but decreed on appeal, by the High Court. In the appeal to the Supreme Court it was contended that, (i) the suit was barred by s. 77 of the Indian Railways Act, 1890, inasmuch as notice required therein was not given by the respondent, and (ii) under the terms of the risk-note the Railway was absolved from all responsibility for the loss of the goods consigned thereunder, from any cause whatsoever. except upon proof of misconH duct of the Railway or its servants, that the burden of proving such misconduct was on the resp0ndent and th!tt the respondent had failed to discharge the burden. HELD: (i) A notice under s. 77 of the Act is necessary in the case of non-deHvery which arises from the loss of goods. Though the letter, written by the respondent to the Chief Commercial Manager, was not specifically stated to be a notice under the section it gave all the particulars necessary for such a notice and it was also given within time prescribed. Therefore, the letter was sufllcjent notice for the purpose of the Act. rl49 1)..Fl 146 SUPREME COURT REPORTS [1965] 3 s.c.R. Governor Genera! in Council v. Musaddi!a! [196113 _S.C.R. 647 and Jatmu!! Bhojraj v. The Darjeeling Himalayan Railway Co. Ud. [19631 2 S.C.R. 832, followed. (ii) The view of the High Court, that there was a breach of the condition relating to complete disclosure, and that on such. breach the risk-note could be completely ignored and the responsibility of the Railway judged purely on the basis of s. 72(1) of the Act, as if the ·gceds were consigned at the ordinary rates on the Railway's risk, was not correct. [154 Hl The responsibility of the railway administration t~ disclose to the consignor as _to how the consignment was dealt with throughcut th2 time it was in its possession 'Or control arises ~t once, ~nder the risk-note, in either of the cases referred to therein, and is not confined to the stage of litigation. But such disclosure is necessary C'nly where a cons'gnor specifically asks the railway to. make the disclosure. If no such disclosure is asked for, the admm1strat10n need not make it before the litigation. Therefore, if the Railway did not make the disclosure, before the suit was filed, it could not be said to have committed a breach of the term of the contract [153 A-Dl The disclosure envisages a ·precise statement of how the consignmel)t \vas dealt with by the railway or its servants. If the disclosure is asked for before 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 to say, if a suit is filed, whether there has been a breach of the term. 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. When the acjministration has given its evidence in proof of the disclosure, if the plaintiff is not satisfied with the disclosure made in evidence, he is entitled to ask the court to call upon the railway to fulfil its obl'gation under the contract, and the railway should then have the opportunity of meeting the demands of the plaintiff. It is then for the court to decide whether the · fuTther disclosure desired by the plaintiff sl)ould be made by the railway, and if the court decides that it should be made, the railway has to make such further disclosure as the court orders. If the railway fails to take that opportunity to safisfy the demands of the plaintiff endorsed by the court, the railway, at that stage, would be · in breach of its contractual obligation of disclosure. [153 E-154 Bl The effect of the breach however, is not to bring the contract to an end and throw the respon•ibility on the railway as if the case was a simple case of respons'bility under s. 72(1). Th~ risk-note would continue to apply and the court would have to decide whether the misconduct .. can be fairly inferred from the evidence of the railway, :mth the difference ;hat, whe:e the railway has been in breach of its ~b.h~at10n to maKe fulJ disclosure, misconduct may be more readily inferred ~?.d s. 114 of the Evidence Act more readily applied. But the condi ,10ns of the risk-note cannot be complete!~· ignored, simply because. there has been a breach of the condition of r'Omp!ete disclosure. fl54 D-Gl Surat Cotton Spinning & Weavinq Mills v. Secretary of State for India in Council fl9371 64 I.A. 176,•applied. av1L APPELLATE JURISDICTION: Civil Appeal No 536 of 1%2 . . Appeal from the judgment and decree dated March 26 1958 of the High Court at Patna in First Appeal No. 3'40 of J9Sl. ' A B c D E F G H OIJON v. MAHADEOLAL (Wanchoo, J.) 1(7 A Niren De, Additional Solicitor-General, N. D. KarkhanLi and B.R.G.K. Achar, for the appellant. Bishan Narain. P. D. Himmatsinghka, S. Murthy and B. P. Maheshwari, for the respondent. The judgment of the Court was delivered by B Wanchoo, J. This is an appeal on a certificate granted by the Patna High Court. The respondent sued the Union of India a~ representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for non-delivery of 31 bales of piece goods, out of 60 bales which had been consigned to Baidyanathdham from Wadibundar. This consignment was loaded in wagon No. C 9643 on December 1, 1947. It is not in dispute that the consignment reached Mughalsarai on the morning of December 9, 1947 by 192 Dn goods train. After reaching Mughalsarai, the wagon was kept in the marshalling yard till December 12, 1947. It was sent to Baidyanadham by 214 Dn goods train from Mughalsarai at 6-40 p.m. on December 12, 1947 and eventually reached D Baidyanathdham on December 21, 1947. The respondent who was the consignee presented the railway receipt on the same day for delivery of the consignment. Thereupon the railway delivered 29 bales only to the respondent and the remaining 31 bales were said to be missing and were never delivered. Consequently on August E 31, 1948, notice was g;ven under s. 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948. The consignment had been booked under risk note form Z which for all practical purposes is in the same terms as risk note form B. The respondent claimed damages for non-delivery on the ground that the non-delivery was due 1 to the misconduct of the servants of the railway, and the claim was for a sum of Rs. 36,461112/-. The suit was resisted by the appellant and a number of defences were taken. In the present appeal we are only concerned with two defences. It was first contended that the suit was barred by s. 77 of the Indian Railways Act, No. IX of 1890, (hereinafter G referred to as the Act). inasmuch as notice required therein was not given by the respondent. Secondly it was contended that the consignment was sent under risk note form Z and under the terms of that risk note the railway was absolved from all responsibility for loss, destruction or deterioration of goods consigned thereunder from any cause whatsoever except upon proof of misconduct H of the railway of. its servants, and that the burden of proving such misconduct subject to certain exceptions was on the respondent and that the respondent had failed to dischar~e that burden. Fljl'- ther in compliance with the terms of the risk note, the railway made a disclosure in the written statement as to how' the consignment was dealt with throughout the period it was in its possession or control. The .case of the railway in this connection was that there was a theft in the running train between Mughalsarai and 148 SUPREME C01JRT REPORTS [1965] 3 s.c.R. Buxar on December 12, 1947 and that was how part of the conA signment was lost. As the loss was not due to. any misconduct on the part of the railway or its servants and as the respm;ident had not discharged the burden which lay on him after the railway had given evidence of how the consignment had been dealt with, there was no liabilitf on the railway. On the first point, the trial court held on the basis of certain B decisions of the Patna High Court that no notice under s. 77 was ne~essary in a case of non-delivery which was held to be different from loss. On the second point relating to the responsibility of the railway on the basis of risk note form Z, the trial court held that it had not been proved that the loss was due to misconduct pf the C railway or its servants. It therefore dismissed the suit. Then followed an appeal by the respondent to the High Court. The High Court apparently upheld the finding of the trial court on the question of notice under s. 77. But on the second point the High Court was of opinion that there was a breach of the condition of disclosure provided in risk note Z under which the consignment D had been booked, and therefore the appellant could not take advantage of the risk note at all and the liability of the railway must be assessed on the footing of a simple bailee. It therefore went on to consider the liability of the railway as a simple bailee and held on the evidence that the railway did not take proper care of the wagon at Mughalsarai and that in all probability the seals and E rivets of the wagon had been allowed to be broken there and all arrangements had been completed asto how the goods would be removed from the wagon when the train would leave that station and this could only be done either by or in collusion with the servants o.f the railway at Mughalsarai. In this view of the matter the High Court allowed the appeal and decreed the suit with costs F As the judgment w;is one of reversal and. the amount involved was over rupees twenty thousand, the High Court granted a certificate. and that is how the matter has come up before us. We shall first deal with the question of the notice. We are in this ::ase cqncerned with the Act as it was in 1947 before its amendG ment by Central Act 56 of 1949 and Central Act No. 39 of 1961 and all references in this judgment must be read as applying to the Act as it was in 1947. Now s. 77 inter a/ia provides that a per- ·wn shall not be entitled to compensation for the loss, destruction or deterioration of animals or goods delivered to be carried by railway, unless his claim to compensation has been preferred in H writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway. There was a conflict between the High Courts on the question whether non-delivery of goods carried by railway amounted to loss within the meaning of s. 77. Some High Courts (including the Patna High Court) held that a case of non-delivery was distinct from a case of loss and no notiee under c1NION t'. MAHADEOLAL (Wanclwo, J.-) 149 A s. 77 was necessary in the case of non-delivery. Other High Courts however took a contrary view and held that a ·case of non-delivery also was a case 0f loss. This conflict has now been resolved by the decision of this Court in Governor-General in Council v. Musaddilal (') and the view taken by the Patna High Court has been overruled. This Court has held that failure to deliver goods is the consequence B of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or destruction, and therefore notice under s. 77 is necessary in the case of non-delivery which arises from the loss of goods. Therefore notice under s. 77 was necessary in the present case. If is true that the respondent stated in the plaint in conformity with the view of the Patna High Court C prevalent in Bihar that no notice under s. 77 was necessary as it was a case of non-delivery. But we find in actual fact that a notice was given by the respondent to the railway on April 10, 1948 to the Chief Commercial Manager, E.l.R. in which it was stated that 60 bales of cloth were booked for the respondent but only 29 bales had been delivered and the balance of 31 bales had not been D delivered., Therefore the respondent gave notice that if the bales were not delivered to him within a fortnight, he would file a suit for the recovery of Rs. 36,461/ 12 /-, and the details asto how the amourit was arrived at were given in this notice. It is true that the notice was not specifically stated to be a notice under s. 77 of the Act but it gave all the particulars necessary in a notice under E that section. This notice or letter was sent within six months of the booking of the consignment. A similar case came up before this Court in JetmuU Bhojraj v. The Darjeeling Himalayan Railway Co. Ltd.(') and this Court held that the letter to the railway in that case was sufficient notice for the purpose of s. 77 of the Act. Following that decision we llold that the letter in the present F case which is even more explicit is sufficient notice for the purpose of s. 77 of the Act. We may add that the learned Additional Solicitor General did not challenge this in view of the decision in .[ennui/ Bhojraj's case('). This brings us to the second question raised in the appeal. G We have already indicated that the High Court held that as the burden of disclosure which was on the railway had not .been discharged there was a breach of one of the terms of the risk note Z and therefore the risk note did not apply at all and the responsibility of the railway had to be assessed under s. 72 (1) of the Act. This view of the law has been contested on behalf of the appellant H and it is urged that after the risk note is executed either in form Z or in form. B, the responsibility of the railway must be judged in accordance with the risk note even if there is some breach of the condition as to disclosure. It may be mentioned that risk note form Z and risk note form B are exactly similar in their terms insofar as the responsibility of the railway is concerned for risk note (1) fl96ll .~ S.C.R. 647. (') [1963] 2 S C.R, 832, 150 .SUPREME COUR'l' REPORTS [1965] 3 B.C.R, form B applies to individual consignment while form Z is executed A by a party who his usually to send goojs by railway in large numbers. Risk note form Z is general in its nature and applies to all c::>nsignments that a party may send after its execution. It is proved that the consignn~ent in this case was covered by risk note form Z. 'The main advantage that a consignor gets by sending a consignm:nt unjer fo;-m Z or form B is a specially reduced rate as compaB red to the ordinary rate at which goods are carried by the railway anj it is because of this specially reduced rate that the burden is thrown on the consignor in a suit for damages to prove misconduct on the part of the railway or its servants in the case of loss etc. of the pods, subject to one exception. On the other hand the arg_ument on behalf of the respondent is that the view taken by the Patna High Court is right and it is the duty of the railway administration under the risk note, as soon as there is non-delivery and a claim is made on the railway for ·compensation, to disclose how th~ consignment was dealt with throughc out while it was in its possession or control and that its failure to D do so results immediately in breach of the contract with the result · that the responsib fay of the railway has to be judged solely on the bas:s of s. 72 (!) of the Act ignoring the risk note altogether. ·Section 72 (!) defines the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway to E be the same as that of a bailee under ss. 152 and 161 of the Indian Contract Act, 1872, subject to other provisions of the Act. Sub-section (2) of s. 72 provides that an agreement purporting to limit the responsibility under s. 72 (!) can be made subject to two conditions, namely, (i) that it is in writing signed by or 011 behalf of the person sending or delivering to the railway adm"lhistration the aniP mals or goods, an'.! (ii) that it is in a form approved by the Governor-General. Sub-section (3) of s. 72 provides that nothing in the common law of England or in the Carriers Act 1865 regarding the responsibility of common carriers with respect to carriage of animals or goods shall affect the responsibility as in this section defined of the railway administration. So the responsibility of the G railway for loss etc. is the same as that of a bailee under the I~dian. CJntract Act. But this responsibility can be limited as prov.1ded m s. 72 (2). For the purpose of limiting this responsibilty nsk notes form B and form Z have been approved by the Governor-General and where goods are booked under these risk notes the liability is limited in th~ manner provided thereunder. It is B therefore necessarv to set out the relevant terms of the risk note, for the decision of this case will turn on the provisions of the risk note itself. The risk note whether it is in form B or form z provides that .vhere goods are carried at owner's risk ori specially reduced rates, the owner a~rees or undertakes to hold the railway administration· T'NION v. MABADEOLAL ( w r:ndwo, J:) 151 A "harmless and free from all responsibility for any loss, deterioration or destruction of or damage to all or any of such consignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants". Thus risk notes B and Z provide for complete immuni1y .of the railway except upon B proof of misconduct. But to this immunity there is a proviso and it is the construction of the proviso that arises in the present appeal. c J) The proviso is in these terms : - "Provided that in the following cases: - (a) Non-delivery of the whole of a consignment packed in accordance with the instruction laid down in the tariff or where there are no instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such non·delivery is not due to accidents to train or to fire; (b) "The railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and if necessary, to give evidence thereof before the E consignor is called upon to prove misconduct, but, if misconduct on the part of the railway administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor" It is not in dispute that the present case comes under cl. (a) r of the risk note. An exactly similar provision in risk note form B came· up for consideration before the Privy Council in Surat Cotton Spinning & Weaving Mills v. Secretary of State for India in Council, (') and the law on the subject was laid down thus at pp. 181-182: G H "The. first portion of the proviso provides that the Railway Administration shall be bound to disclose to the consignor 'how the consignment was dealt with throughout the time it was in its possession or control, and, if necessary to give evidence thereof, before the consignor is called upon to prove misconduct'. In their Lordships' opinion, this obligation arises at once upon the occurrence of either of cases (a) or (b), and is not confined to the stage of litigation. Clearly one object of the provision is to obviate, if possible, the necessity for litigation. On the other hand, 'the ck•sing words of the obligation clearly apply to the litigious stage. Asto the extent of the disclosure, it is confined to the. period during which the ('I [W7J L.R. LX!V I.A. 176. 152 Sl ;p&EME COURT REPORTS (1965] 3 B.C.R. consignment was within the possession or c;ontr?l of the Railway Administration; it does not relate, for mstance, u the perioJ after the goods have been theftuously removed from the premises. On the other hand, it does envisage a precise statement of how the consignment was dealt with by the Administration or its servants. The character of what is requisite may vary according to the circumstances of different cases, but, if the consignor is not satisfied that the disclosure has been adequate, the dispute must be judicially decided. As to the accuracy or truth of tire information given, if the consignor is doubtful or unsatisfied, and considers that these should be established by evidence, their Lordships are of opinion that evidence before a Court of law is contemplated, and that, as was properly done in the present suit, the Railway Administration should submit their evidence first at the trial. "At the close of the evidence for the Administration two questions may be said to aris~. which it is important to keep distinct. The first question is not a mere question of procedure, but is whether they have discharged their obligation of disclosure, and, in regard to this, their Lordships are of opinion that the terms of the Risk Note require a step in procedure, which may be said to be unfamiliar in the practice of the Court; if the consignor is not satisfied with the disclosure made, their Lordships are clearly of opinion that is for him to say so, and. to call on the Adrninistration to fulfil their obligation under the contract, and that the Administration should then have the opportunity to meet the demands of the consignor before their case is closed; any question as to whether the consignor's demands go beyond the obligation should be then determined by the Court. If the Administration fails to take the opportunity to satisfy the demands of the consignor so far as endorsed by the Court, they will be· in breach of their contractual obligation of disclosure. "The other question which may be said to arise at this stage is whether misconduct may be fairly inferred from the evidence of the Administration; if so, the consignor is absolved from his original burden of proof. But, in this case, the decision of the Court may be given when th< evidence of both sides has been completed. It is clearly for the Administration to decide for themselves whether they· have adduced all the evidence which they consider desirable in avoidance' of such fair "inference of misconduct". Thev will doubtless keep in mind the provisions of s. 114 of the Indian Evidence Act". With respect we are of opinion that 'this rxposition of the law rel11ting to risk note B applies also to risk no1e Z and we accept it A B c D E F G R l'SH,~ v. MABADEOLAL (Wanchoo, J.) A as correct. Thus the responsibility of the railway administration to disclose to the consignor how the consignment was dealt with throughout the time it was in 'ts possession or control arises at om:e under the agreement in either of the cases (a) or (b) and lS not confined to the stage of litigation. But we are not prepared to accept the contention on behalf of the .-espondent that this responsibility B to make full disclosure arises immediately the claim is made by the consignor and if the railway immediately on such claim being made does nol disclosz all the facts to the consignor, there is immediately a breach of this term of the contract contained in the risk note. It is true that the railway is bound to disclose to the consignor how the consignment was dealt with throughout the time it was C in its possession even before any litigation starts; but we are of opinion that such disclosure is necessary only where the consignor specifically asks the railway to make the disclosure. If no such disclosure is asked for, the administration need not make it before the litigation. In the present case there is no proof that any disclosure was aske:I for in this behalf by the consignor at any D time e:fore the suit w&s Hied. 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. The disclosure envisages a precise statement of how the consignment was dealt with by the railway or its ser· vants. If the disclosure is askd for before the litigation commenE ces an:! is not givm or the disclosure is given but it is not considerej to be sufficient by the consignor, the dispute has to be judicially decidd anj it is for the court then to say if a suit is brought whether there has been a breach of this term of the contract. After this, comes the stage where the consigner or th<' conF signee being dissatisfied brings a suit for compensation. 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 stat~mcnt in reply to the suit. When the railway administration has given its evidence in proof of the disclosure and o the plaintiff is not satisfied with the cjisclosure made in the evidence, the plaintiff is entitled to ask the court to cal! upon the railway lo fulfil its obligation under the contract and the railway should then have the opportunity of meeting the demands of the plaintiff before its case is closed. Thus in addition to the evidence th<' t the railway may adduce on its own and in doing so the railB way has necessarily to keep in mind the provisions of s. 114 of the Indian Ev'dcnce Act, the plaintiff can and should draw •the attention of the court if he feels that full disclosure has not been made. In that case he can ask the court to require the railway to make further disclosure and should tell the court what further dis,;losure he wants. 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 thav such further disclosure !ti! SUPREME COURT REPORTS (1965) 3 S .• C.R. ~houid be made the railway has to make such further disclosure A as the court orders it to make on the request of the plaintiff. If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the court, the ra1lwav would be in breach of its contractual obligation of disclosure. It is at this stacre therefore that the railway can be truly said to be in breach of its contractual obligaLo;i of disclosure, and that breach arises because the railway falled tJ disclose matters which the court on the request of the plai:itiff asks it to disclose. The question then is what is the effect of this breach. 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 c:ij and the responsibility of the railway is that of a bailee under s. 72 (l) of the Act. In the ob3ervations already quoted, the Privy Council has gone on to say th1t after this stage is over, the question may arise whether miscJnduct may be fairly inferred from B c the evidence of the raihyay. It seems to us therefore that even if there is a breach of the term as to full disclosure it does not bring D tl1e contract to an end anj throw the responsibility on the railway : s it the cas~ was a simple c1se of responsibility under s. 72(!) of the Act; the case is thus not assimilated to a case where the goods are carried at. the ordinary ;ates at raiiway risk. The reason for this seems to be that the gcods have alreudy been carried at the reiucd rates and the consignor has taken advantage of that term E in the c~ntract. 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 s. 72 (!) of the Act as if the goods had been carried at railway's risk at ordinary rates, for he has derived the advantage of G the goods having b~en carried at a specially reduced rates. The F r.sk note would in our opinion continue to apply and the court would still have to decide whether misconduct can be fairly i,1ferred from the evidence of the railway, with this difference that where the rnilway has been in breach of its obligation to make full disclosure misconduct may be more readily inferred and s. 114 of the Indian Evidence Act more readily applied. But we do not think that the conditions in the risk n Jte can be completely ignored simply because there has been a breach of the condition of complete disclosure. 1 he view of the Patna High Court that as soon as there is breach of the condition relating to complete disclosure the risk 1nte can be completely ignored and the responsibility of the railway judged purely on the basis of s. 72 (I) as if the goods were H -.:arried at the ordinary rates on railway's risk cannot therefore be .iccepteJ as correct. We may point out that in Surat Cotton Spinning and Weaving Hills Limited's case, (') the plaintiffs wanted the guard of the train u b~ exammed and he was undoubtedly a material witness. EYcn (') [1U;7] L.R. LXIY LA. liG. I l:N!Oli v. MAHADEOLAL ( W a.itr4oo, J. )' 155 A so the witness was not examined by the railway. Finally therefore the Privy Louncil allowed lhe appeal with these observations at p. 189:- 8 "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 contractu,,l obligation to give the evidence necessary for disclosure of how the consignment was dealt with, they are clearly oi opinion thal the failure to submit the evidence of Rohead, in the circumstances of this case, entitles the court to presume, in terms of s. 114 (g) of the Evidence Act, that "Rohead's c evidence, if produced, would be unfavourable to the respondent, and that, in consequence, misconduct by complicity in the theft of some servant, or servants of the resp;:indent may be fairly inferred from the respondent's evidence". These observations show that even though there may be a II breach of the obligation lo 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 s. 72 (!) as a simple bailee. If that was the effect of the breach, the Privy Council woLld not have come to the conclusion after applying s. 114 (g) of the Evidence Act in the case of Rohead that misconduct by complicity lil in the theft of some servant or servants of the railway may be fairly inferred from the railway's evidence. The appeal was allow ed by the Privy Council after coming to the conclusion that mis-· conduct by the servant or s~rvants of the railway might be fairly inferre:J from the evidence including the presumption under ~ 114 (g) of the Evidence Act. It seems to us clear therefore that even 'F 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 d the plaintiff is endorsed by the court, the effect of such breach is not that the risk note is completely out of the way, the reason for this as we have already indicated being that the c;Jnsignor has already taken adG vantage of the reduced rates and therefore cannot be allowed to ignore the risk note altogether. But where there is a breach by the railway of _the. obligati_on to make full disclosure the court may more read!ly mfer nmconduct on the part of the railway or its servants or more read_ily presume under s. 114 (g) of the Evidence Act against the railway. This in our opinion is the effect of the II decision of the Privy Council in Surat Cotton Spinning and Weaving Mills Limited's case('). As we have already said we