JUDGMENT 1. 1. This appeal is directed against the judgment and decree dated 8.2.1989 passed by the Additional District Judge, Sikar in Civil Suit No. 7/87, whereby the suit for damages preferred by the plaintiff-appellant against the defendants-respondents has been dismissed. 2. The material facts giving rise to the present appeal are summarised thus : M/s. Dungarmal Shyam Sunder of Surajgarh district Jhunjhunu entered into an agreement with M/s. Yaladam Lakshmaih & Co., Madras to purchase 160 bags of millet for consideration of a sum of Rs. 16,000/-. It is alleged that before the goods were actually transshipped from Tindivanam Railway Station, the plaintiff-appellant purchased the ownership of the goods after making full payment to M/s. Dungarmal Shyam Sunder. Accordingly, the original seller at Tindivanam was instructed to direct the goods for delivery to the plaintiff-appellant at Sikar. The goods were dispatched from Tindivanam for Sikar vide railway receipt No. 739095 dated 12.9.1978 in railway wagon no. 2604. The goods were not delivered by the railway to the plaintiff- appellant at the destination within the reasonable time. The plaintiff- appellant contacted the authorities of the Railway at Sikar time and again but, the authorities informed that the goods have not reached the destination so far. On 19.1.1979, the plaintiff-appellant was informed about the arrival of the goods at Railway Station, Sikar. Instead of wagon no. 2604, the goods were brought to Sikar in wagon on 31326. A slip pasted outside the wagon disclosed that during transit some accident had taken place somewhere between Railway Stations Dalauda. and Mandsaur, therefore, the goods were transshipped to wagon No.31326. Apparently, the goods were in highly damaged condition, therefore, suspecting foul play, the plaintiff-appellant claimed open delivery. The railway agreed to open delivery only after receiving a sum of Rs. 2055/- as demurrage. The amount was deposited by the plaintiff-appellant. During the course of open delivery, the bags were found in torn condition and the goods in highly damaged condition. Most of the consignment was no more fit for corksumption of even animals what to say for human consumption. On open delivery, the assessment of the damages was made by the railway authorities and for this purpose the damaged goods were categorised in three grades. Most of the consignment was no more fit for corksumption of even animals what to say for human consumption. On open delivery, the assessment of the damages was made by the railway authorities and for this purpose the damaged goods were categorised in three grades. The quantity of the goods in the different grades, percentage of damage and the loss in terms of money were determined as under:- Grade weight Percentage of damage Loss quantified 37.17 qunitals 40.00% र 1665.20 40.76 quintals 70.00% र 3195.58 48.23 qunitals 90.00% र 4861.84 The goods were found short by 33.84 qunitals, value whereof was quantified at Rs. 3779.08. Thus, the plaintiff-appellant claimed that he was entitled for the damages quantified at Rs. 13,512.20. The plaintiff-appellant also claimed interest w.e.f. 12.9.178 to 11.10.1980 @ 1% per month quantified at Rs. 3378/-. The plaintiff-appellant served a notice through his counsel on the authorities of the railway under Section 80 of the Civil Procedure Code read with 78-B of the Indian Railways Act, 1890. Since, the notice was not responded, the plaintiff-appellant preferred a suit for recovery against the defendants-respondents before the District Judge, Sikar. 3. The suit was contested by the defendants-respondents by filing a written statement on behalf of defendant No.1 Union of India through the General Manager, Western Railway wherein while transshipment of the goods from Tindivanam for destination Sikar vide railway receipt No. 730935 dated 12.9.1978, in wagon no.2640, was admitted by the defendants-respondents, the ownership of the goods of the plaintiff-appellant was denied. It was admitted that the goods reached the destination at Railway Station, Sikar on 20.1.1979, however, it was stated that the goods train in which the goods were loaded from Tindivanam met with an accident between the Railway Stations Dalauda and Mandsaur on 18.11.1978. Consequently, the said wagon so also the other wagons were seriously damaged. It was stated that after the accident the disputed goods were brought to Dalauda Station and from there the same loaded in wagon No.31326 which reached the destination at-Railway Station, Sikar on 20.1.1979. It was contended that since the accident has not occurred on account of any negligence on the part of the railway employees and it was only an act of god, therefore, the defendants-respondents cannot he held liable for any damages. It was contended that since the accident has not occurred on account of any negligence on the part of the railway employees and it was only an act of god, therefore, the defendants-respondents cannot he held liable for any damages. Regarding the assessment report, it was averred in the written statement that the assessment report was prepared without prejudice, therefore, the same is not admissible in evidence. In the additional pleas, an objection was raised that since the plaintiff-appellant has no right, title or interest in the disputed goods, therefore, he has no locus standi to maintain the suit. It was further stated that since the notice has not been served in conformity with the provisions of Section 78-B of the Indian Railways Act, therefore, the suit is liable to be dismissed on this count. However, in reply to the averments made in para No. 8 of the plaint regarding the notice, the defendants-respondents while admitting the receipt of the notice raised an objection to the effect that the plaintiff has no right to give so called notice. Thus, precisely the defendants-respondents contested the suit on the ground that the plaintiff-appellant had no right, title or interest in the disputed goods and therefore, he had no locus standi to maintain the suit. Besides, it was contended that since the accident was an act of god and the employees of the railway were not negligent in performance of their duties, therefore, the railway cannot be held liable for the damages claimed by the plaintiff-appellant. 4. On the basis of the pleading of the parties, the learned trial Court framed the following issues: 359195 5. In support of the case on behalf of the plaintiff-appellant, statements of P.W. 1 Kailash Chandra (plaintiff), P.W.2 Dungar Mal, P.W. 3, J.C. Sardana, P.W.4 Om Prakash, P.W. 5 Vinod Kumar and P.W.6 Munna Lal were recorded. On behalf of the defendants-respondents statement of D.W.1 Narbada Prasad, D.W. 2 Hari Shanker Shukla, D.W. 3 Shiv Prakash Sharma, D.W. 4 Ravindran and D.W. 5 Harnarayan Sharma were recorded. The plaintiff-appellant produced the documentary evidence invoice of the goods (Ex.1), the assessment and weightage of the goods by the authorities of the railway dated 4.2.1979 (Ex.2), notice dated 25.2.1979 (Ex.3), AID receipts (Ex. 4 to Ex. The plaintiff-appellant produced the documentary evidence invoice of the goods (Ex.1), the assessment and weightage of the goods by the authorities of the railway dated 4.2.1979 (Ex.2), notice dated 25.2.1979 (Ex.3), AID receipts (Ex. 4 to Ex. 8) entries in the books of account (Ex.9), entries in the case book dated 25.1.1979 (Ex.10), entries in the cash book dated 4.2.1979 (Ex.11), entries in the books of accounts regarding the amount received on sale of the damaged goods (Ex.12), ledger account of M/s. Dungarmal Shyam Sundar in the plaintiff firm (Ex.13) and entries with regard to the purchase of the goods in the books of account (Ex.14). The "defendants-respondent produced Tally book (Ex.A/1) as documentary evidence. Besides, an application was preferred by the plaintiff-appellant for summoning few documents in possession of the defendants-respondent viz, original claim notice dated 18.1.1979, the original railway receipt dated 12.9.1978, original notice u/s. 80 Civil Procedure Code dated 25.2.1979, telegram dated 20.1.1979 and open assessment delivery report (Ex.19). In pursuance thereof, the defendants-respondents produced the said documents which were admitted by the parties, accordingly, the same were marked as Ex.15 to 19 respectively. It is also relevant to mention here that on 20.9.1986 after conclusion of the evidence of the parties, the defendants-respondents filed an application under Order 13 Rule 2 Civil Procedure Code for taking "accident enquiry report" said to be a public document on record. However, after hearing, the application was rejected by the learned trial Court vide order dated 4.2.1989. After hearing the learned counsels appearing for the parties and after due consideration of the material on record, the learned trial Court decided all the issues against the plaintiff-appellant and in favour of the defendants- respondents. Consequently, the suit preferred by the plaintiff- appellant was dismissed with costs. 6. I have heard learned counsel for the appellant and perused the record in its entirety and objectivity. 7. It is contended by the learned counsel appearing on behalf of the plaintiff-appellant that the learned trial Court wrongly addressed itself to the question of ownership in the goods on the date of alleged accident. According to the plaintiff-appellant, the relevant date was the date of delivery and if on the date of delivery, the right to property vested in the plaintiff-appellant then, he was entitled to claim the compensation on account of damage caused to the consignment during the transit. According to the plaintiff-appellant, the relevant date was the date of delivery and if on the date of delivery, the right to property vested in the plaintiff-appellant then, he was entitled to claim the compensation on account of damage caused to the consignment during the transit. Precisely, the learned counsel contended that the date of the accident had hardly any bearing on the question of damages to be awarded to the plaintiff-appellant. The learned counsel submitted that after giving due notice of arrival of the consignment to the plaintiff-appellant, on the plaintiff-appellant claiming open delivery, a sum of Rs. 2055/- was claimed by the railway by way of demurrage which was deposited by the plaintiff-appellant and only thereafter the open delivery of the goods was given by the railway to the plaintiff-appellant. Thus, these acts of commission and omission on the part of the defendants-respondents estop them from challenging the ownership of the plaintiff-appellant. The learned counsel urged that the learned trial Court has assigned no reason to dis-believe the evidence of the witnesses P.W.1 Kailash Chandra and P.W. 2 Dungarmal from whose statements it is amply borne out that the ownership in the goods stood vested in the plaintiff-appellant. The learned counsel pointed out that on the point of ownership, the defendants-respondents led no evidence whatsoever. Thus, in absence of any rebuttal evidence, the learned trial Court should have accepted the evidence of the plaintiff-appellant on the point of ownership. 8. The learned counsel while drawing attention of the Court to the finding of the learned trial Court on issue No. (ii) submitted that there is cogent evidence on record to prove the extent of damage caused to the consignment and there is absolutely no evidence in rebuttal and therefore, the evidence oral as well as documentary depicting the extent of damages and quantifying the same in terms of money should have been accepted. The learned counsel further submitted that the court below has mis-construed the meaning of term "act of god", The learned counsel contended that the burden to prove absence of negligence on the part of the railway employees was upon the defendants-respondents but, they have miserably failed to discharge this burden. The learned counsel further submitted that the court below has mis-construed the meaning of term "act of god", The learned counsel contended that the burden to prove absence of negligence on the part of the railway employees was upon the defendants-respondents but, they have miserably failed to discharge this burden. The learned counsel submitted that to rule out the possibility of human negligence, the best evidence would have been in the form of the report of enquiry which was conducted by higher officers of the railway. Hence, non-production of that report calls for adverse inference against the defendants-respondents. Thus, according to the learned counsel without there being any cogent evidence on record, the learned trial court has seriously erred in arriving at the conclusion that the accident was an act of god. The learned counsel contended that the goods have been destroyed not so much as a result of derailment but as a result of callous indifference on the part of the defendants-respondents who allowed the goods to remain on the spot of accident for months together without taking care to protect them from perishing. Accordingly the learned counsel prayed that the plaintiff-appellant's suit deserves to be decreed as prayed for. 9. In order to appreciate the controversy involved in the appeal, it will be beneficial to first make a reference to the factual position emerging from pleading of the parties and the evidence on record. Admittedly, the disputed goods were dispatched from Tinidvanam (Madras) to Sikar vide railway receipt dated 12.9.1978 (Ex.16) in railway wagon no. 2604. As per the railway receipt, the consignor of the goods was M/s. Yadalam Lakshmiah & Company. The name of the consignee has been shown as "self". However, on the back of the railway receipt (Ex.16), there are as many as four successive endorsements. The first endorsement has been made by M/s. Yadalam Lakshmiah & Co. in favour of M/s. Rajasthan Bank Limited to the effect that "please pay/deliver to Bank of Rajasthan Limited". Thereafter, there is a similar endorsement by the Bank of Rajasthan Ltd. in favour of the State Bank of Bikaner and Jaipur. The railway receipt has been further endorsed by the State Bank of Bikaner & Jaipur in favour of M/s. Dungarmal Shyam Sunder and ultimately it has been endorsed by M/s. Dungarmal Shyam Sunder in favour of Kailash Chand Modi. The railway receipt has been further endorsed by the State Bank of Bikaner & Jaipur in favour of M/s. Dungarmal Shyam Sunder and ultimately it has been endorsed by M/s. Dungarmal Shyam Sunder in favour of Kailash Chand Modi. Thus, as per the railway receipt, the plaintiff appellant is the person in whose favour the last endorsement is made. It is to be noticed that M/s. Yadalam & Co. was the consignor of the goods is not disputed. Similarly, M/s. Dungarmal Shyam Sunder has been accepted to be an endorsed consignee even by the railway. In this regard, the "open assessment delivery report" prepared by the defendants-respondents is self explanatory. It is also not in dispute that on being informed about the arrival of the goods, the plaintiff-appellant made an application claiming damages and also requested the railway for open delivery. On an application being preferred by the plaintiff-appellant claiming damages, the Station Master, Sikar informed the Divisional Commercial Superintendent, Jaipur vide telegram dated 20.1.1979 (Ex. 18) that "All bags in loose and torn condition, inside goods quite damageable condition and giving bad smell and Rf not possible. All gunnies in rotten condition. Most bags refilled in dunnage and other bags." It is also not in dispute that the railway agreed for open delivery only after plaintiff-appellant depositing a sum of Rs. 20551- ad demurrage. While giving open delivery of the goods, in the "Open/Assessment Delivery Report" (Ex.19) the name of Kailash Chand Modi has been shown as the person to whom deliyery of the goods was given on 25.1.1979. Further, the "Open Assessment Delivery Report" bears the signatures of Vinod Kumar Kailash Chandra Modi as consignee of the goods. Thus, on the basis of material on record it can be safely concluded that the plaintiff-appellant is accepted to be last endorseee of the railway receipt and on that basis alone, the railway informed him regarding arrival of the goods and on his claiming damages and open delivery, he was called upon to deposit a sum of Rs. 2055/- as demurrage. The open delivery of the goods was given by the railway to him and the open assessment delivery report quantifying damages was also prepared in his presence. It has also come on record that the disputed goods were purchased by the plaintiff-appellant from M/s Dungarmal Shyam Sunder vide invoice dated 21.11.1978 for consideration a sum of Rs. 16,000/-. The open delivery of the goods was given by the railway to him and the open assessment delivery report quantifying damages was also prepared in his presence. It has also come on record that the disputed goods were purchased by the plaintiff-appellant from M/s Dungarmal Shyam Sunder vide invoice dated 21.11.1978 for consideration a sum of Rs. 16,000/-. Further the said invoice contains the details of the consignment - R.R. No. B 739095, Inv/2, wagon no. 2640 SC dated 12.9.178 'Tindivanam to Sikar'. However, the defendants-respondents has denied the said document and in their written statement also the plaintiff-appellant's ownership of the goods has been denied. It has been stated that the plaintiff-appellant has no right title or interest in the goods and therefore, he has no locus standi to maintain the suit. But, in his oral deposition, P.W.1 Kailash Chand has claimed the ownership of the goods on the basis of invoice (Ex.1) and the endorsement made on railway receipt by M/s Dungarmal Shyam Sunder. The statement of P.W.1 Kailash Chand stands corroborated by the statement of Dungarmal (P.W.2) the partner of the firm M/s. Dungarmal Shyam Sunder, wherein he has stated in unequivocal terms that the goods were sold by the firm to the plaintiff-appellant vide invoice (Ex.1), the railway receipt dated 21.11.1978 was sold by the firm in favour of Kailash Chandra Modi and consideration thereof has been duly received from Kailash Chand Modi. Thus, it stands amply proved that the railway receipt (Ex.16) has. been endorsed by the firm M/s. Dungarmal Shyam Sunder admitted to be the consignee of the goods by the defendants-respondents, in favour of the plaintiff-appellant and the goods were sold in favour of the plaintiff-appellant by the said firm for consideration vide invoice (Ex.1). 10. Regarding the damaged condition of the goods, there is no much dispute inasmuch as on the basis of the various documents produced by the defendants-respondents, it is abundantly clear that the bags carrying the goods were in absolutely damaged condition. While giving open delivery the assessment of the damage was made by the authorities of the railway. However, a not has been appended on the said report that "this is all without prejudice and subject to verification of original bill and actual loss." 11. While giving open delivery the assessment of the damage was made by the authorities of the railway. However, a not has been appended on the said report that "this is all without prejudice and subject to verification of original bill and actual loss." 11. Regarding the cause of the accident all that has been stated by the defendants-respondents in the written statement is that the accident was an act of god and for this reason, the defendants-respondents cannot be held liable for the damages caused. There is absolutely no details in the pleadings as to what was the cause of the accident so also as to how the accident can be attributed to the act of god. The pleading does not contain any detail about any enquiry conducted by the railway to find out the cause of accident. However, at very belated stage when the evidence of the parties was concluded, an application was preferred by the defendants-respondents to take the inquiry report on record which was rejected by the learned trial Court. As a matter of fact, no evidence has been led by the defendants- respondents to establish that the accident occurred due to natural causes directly and exclusively without human intervention and the same could not be prevented or averted by exercise of reasonable cause. 12. In the backdrop of the aforesaid factual position, that first question which comes for consideration before this Court is as to whether the railway receipt can be treated to be a document of title and whether on the basis of the endorsement made on the said railway receipt in favour of the plaintiff-appellant, by the consignee M/s. Dungarmal Shyam Sunder the ownership of the disputed goods stands transferred to the plaintiff-appellant? 13. 13. The definition of 'Documents of title to goods' set out in Section 2(4) of the Sales of Goods Act, 1930 (for short the Act of 1930) as under:- "(4) "document of title to goods" includes a bill of lading, dock warrant, warehouse-keeper's certificate, wharfingers' certificate, railway receipt, warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented." A bare perusal of the definition of the 'documents of title to goods' supra, goes to show that besides others, the railway receipt has been specifically included in the list of the documents recognised to be the documents of title to goods. Further, sub-section (2) of Section 30 of the Act of 1930 inter- alia provides that where a person having bought or agreed to buy goods, obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition thereof to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods shall have effect as if such lien or right did not exist. Similarly, as per proviso to Section 53(1) of the Act of 1930, where a document of title to goods has been issued, or lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faiths and for consideration, then, if such last-mentioned transfer was by way of sale, the unpaid seller's rights or lien or stoppage in transit is defeated and, if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or stoppage in transit can only by exercised subject to the rights of the transferee. Suffice it to say that the endorsement in documents of title to goods have been regarded as conveying property to a person who has bona fide acquired the documents of the title of goods for value. In other words, the document of the title of the goods represents title of the goods or the goods themselves. 14. In (1) Ramdas Vithaldas Durbar v. S. Amirchand & Co., (AIR 1916 P.C. p.7) while considering the question as to whether the railway receipt issued to the consignor of the goods is an instrument of title within the meaning of Section 103 of the Indian Contract Act (Sections 76 to 123 of the Indian Contract Act, since repealed by Section 65 of the Act of 1930), the Privy Council opined that whenever a doubt arises as to whether a particular document is a 'document showing title' or a 'document of title', the test is whether the document in question is used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or delivery the possessor of the document to transfer or receive the goods thereby represented. The railway receipt issued to the consignor has been held to be such document used in ordinary course of business as proof of the possession or control of the goods. A similar view has been taken by the Division Bench of the Nagpur High Court in the matter of (2) Shah Mulji Deoji v. Union of India, (AIR 1957 Nagpur, p.31) . In the said matter, following questions were referred to by the learned Single Judge for decision to the Division Bench : "(1) When goods are consigned to self under railway receipt and the receipt is endorsed in favour of another, can the endorsee, merely by reason of the endorsement in his favour, institute a suit against the railway administration for damages either for non-delivery or short delivery of the goods covered by the railway receipt? (2) Where there are a series of endorsements on the railway receipt, can the last endorsee institute a suit in his own name on mere proof of the fact that he paid consideration to the prior endorsee or is it necessary for the former to establish that the title to the goods represented by the railway receipt passed from the original consignee through the intermediate endorsees to him?" Hon'ble R. Kaushalendrao Rao, J., one of the members of the Division Bench answered the first question in negative and accordingly held that the second question does not arise. However, Hon'ble Hidayatullah, C.J., differed from the view taken by Hon'ble R. Kaushalendra Rao, J. and answered the first question in affirmative making it subject to a corollary that the endorsee must have got the document by endorsement and delivery and not by fraud or any dubious process. The second question was answered in the terms that the last endorsee can sue in his own name without proving that he is a holder for value, since that will be presumed unless rebutted. He could give a valid discharge to the carrier and can thus sue and is not required to prove that all intervening transactions were bona fide and for value. While stating the reasons for dis-agreement, Hon'ble the Chief Justice opined as under : "(66) The assignability of a railway receipt is treated in the same way in the Transfer of Property Act as that of a Bill of Lading & for the purposes of sale of goods there is no difference between the two. Indeed, the Sale of Goods Act mentions them together. Every carrier is in the position of a bailee and the document of title to goods has to be lodged with the bailee to show control and possession of goods. This could not be the case with goods at sea which might not have been loaded and hence a different treatment for bills of lading. But beyond this there is no distinction. They have been held to be assimilated to a bill of lading for other purposes. This could not be the case with goods at sea which might not have been loaded and hence a different treatment for bills of lading. But beyond this there is no distinction. They have been held to be assimilated to a bill of lading for other purposes. Of course, a right of suit in equity was given before delivery of the goods, but if delivery takes place by the lodging of the document of title to goods with the bailee and all title and rights are in the holder thereof, I do not see on what principle the right of suit, cannot be held also to have passed to the holder. (67) An assignment creates rights in rem destroys the right of stoppage in transity and the assignee of the document of title to goods becomes an owner of the goods and can even give a better title than he possesses. In the negotiation of a bill of exchange the right created is in personam, but it reserves the right of stoppage of payment. But though a holder in due course can give a discharge, he cannot give a better title than he himself possesses. The negotiability by assignment as such is different, but it is a kind of negotiability nevertheless. (68) A right in rem carries with it full ownership and title against the rest of the world including the previous owner who loses his right of stoppage in transitu. It is the strongest title known to law and it is difficult to think that person who has become the owner of goods and all benefits arising therefrom and the remedies to protect them cannot sue notwithstanding that the remedies open to the assignor are open to the assignee under Section 130 of the Transfer of Property Act. (69) In my opinion, the matter has become so settled that even if it was necessary to prove a custom that a railway receipt is a negotiable document, it is not necessary to prove such a custom today. After the Privy Council case where it was recognised that a railway receipt is used 'in the ordinary course of business' to represent the goods, the law must be settled. It may be said that one case is not enough and that dealt with the cotton trade. Both arguments, to my mind, are fallacious. In re David Allester, Ltd.,. After the Privy Council case where it was recognised that a railway receipt is used 'in the ordinary course of business' to represent the goods, the law must be settled. It may be said that one case is not enough and that dealt with the cotton trade. Both arguments, to my mind, are fallacious. In re David Allester, Ltd.,. 1922-2 Ch 211 at 215 a similar argument was raised by no less a counsel than Mackinnon K.C. but was not accepted and the single case cited was relied upon, though there was also evidence to the same effect. (70) It is not necessary now to prove that the endorsee has a right of suit according to the custom of any particular trade as was done in AIR 1923 Rang 1(X). This custom can be spelled out from the various cases in which a railway receipt is taken 'as in the course of business' to represent the goods enabling the endorsee thereof to sue in his own name. If, as stated in the last cited case, Section 137 of the Transfer of Property Act rules out only the manner of assignment, then all the remedies of the assignor are available to the assignee : see Section 130 ibid. The custom is established because it has been accepted for years in India by the Courts of India, and one single dissenting view against the proposition cannot, in my opinion, destroy the Law Merchant which has developed in the country. The law is made certain, if not from 1900, at least after 1930 and it is not necessary to go to custom any more. The liability of a carrier such as the railway may be limited, but within the four corners of that liability the railway is liable to the endorsee." Obviously, in view of the difference of opinion between Hon'ble R. Kaushalendra Rao, J. and Hon'ble Hidayatullah, C.J., the matter was referred to the third Judge. The liability of a carrier such as the railway may be limited, but within the four corners of that liability the railway is liable to the endorsee." Obviously, in view of the difference of opinion between Hon'ble R. Kaushalendra Rao, J. and Hon'ble Hidayatullah, C.J., the matter was referred to the third Judge. Hon'ble Tambe, J. while agreeing with the answer given by Hon'ble the Chief justice, answered the first question in affirmative in the following terms : "(103) For reasons stated above, in my judgment, an unqualified endorsement on a railway receipt has the effect of not only transferring to the endorsee the property in the goods covered by the railway receipt but also of transferring to him the right and benefit of the contract of cariage evidenced by the railway receipt. He has, therefore, a right to maintain an action to enforce its performance in his own name, or to sue to recover damages occasioned by failure to perform the contract." Hon'ble Tambe, J. also expressed his agreement with the answer given by Hon'ble the Chief Justice to the second question. 15. Thus, from the legal position discussed above, it can be safely concluded that a railway receipt issued to the consignor of goods is document of title to goods within the meaning of Section 2(4) of the Act of 1930. It is a negotiable document and in ordinary course of business, it represents the title to the goods and the goods themselves. Therefore, where the railway receipt is handed over with endorsement on payment of price of the goods then, there is an absolute transfer both of the goods and the right to take delivery under the contract. Consignee or the endorsee of the consignment is entitled to action for delivery of the consignment so also for damages occasioned on account of failure to perform the contract. 16. Adverting to the facts of present case, it is to be noted that M/s. Dungarmal Shyam Sunder has been accepted to be the consignee of the goods by the defendants-respondents. Consignee or the endorsee of the consignment is entitled to action for delivery of the consignment so also for damages occasioned on account of failure to perform the contract. 16. Adverting to the facts of present case, it is to be noted that M/s. Dungarmal Shyam Sunder has been accepted to be the consignee of the goods by the defendants-respondents. It is apparent from the record that the endorsement has been made by the said firm in favour of the plaintiff-appellant and the railway in its turn accepting the plaintiff-appellant as a last endorsee of the railway receipt, informed him about the arrival of the goods, directed him to deposit the demurrage and has also given the open delivery of the goods to him. Further, while assessing the extent of damage to the goods vide open delivery assessment report (Ex.19), the damages have been quantified in terms of money in presence of plaintiff-appellant. It is thus evident that on the basis of the last endorsement; the plaintiff-appellant has been accepted to be owner of the goods even by the defendants-respondents. Moreover, the goods were sold during transit by M/s. Dungarmal Shyam Sunder to the plaintiff-appellant further stands fortified by invoice (Ex.1) placed on record and so also by the statement of Dungarmal P.W.2, the partner of the firm M/s. Dungarmal Shyam Sunder. In view of discussion above, in my considered opinion on account of endorsement on the railway receipt and on the strength of the invoice (Ex.1), the title in the goods stood transferred to the plaintiff-appellant for the value. The learned trial court has wrongly addressed itself to the question of ownership of the goods as on the date of the alleged accident. The plaintiff- appellant, a bona fide buyer of the goods for consideration cannot be non-suited on this ground. The learned trial Court has also erred in holding that the plaintiff-appellant has become owner of the goods only on the date of delivery of the goods and not prior to it. The ownership of the goods stood transferred to plaintiff-appellant with the endorsement on the railway receipt and the railway as a bailee is liable to answer the loss of damage to the goods during the transit or after arrival and pending delivery. The ownership of the goods stood transferred to plaintiff-appellant with the endorsement on the railway receipt and the railway as a bailee is liable to answer the loss of damage to the goods during the transit or after arrival and pending delivery. In this view of the matter, the finding arrived at by the learned trial court that the plaintiff-appellant has no locus-standi to maintain the suit against the defendants-respondents is not sustainable in the eye of law. Accordingly, the issue Nos. 1 & 4 deserves to be decided in favour of the plaintiff-appellant and against the defendants-respondents. 17. The next question which comes for consideration is as to whether the railway can be permitted to escape the liability for damages on the plea that the accident was an act of god and even after due care and caution, the same could not have been stopped. 18. Vis major i.e. the act of god is defined to be such a direct violent sudden and irresistible act of nature, which could not, by any reasonable care, have been foreseen or resisted. In other words, it may be regarded as an accident, due directly and exclusively to natural causes without human intervention which by no amount of foresight, pains or care, reasonably to have been expected could have been prevented. (3) Nugent v. Smith (1876) 45 LJC p. 694 : quoted from Venkatrammaiah's Law of Laxicon). 19. It is settled law that the term "act of god" cannot be given a wide connotation so as to include every inexplicable human error or other unexplained accident and must be confined to acts caused by natural elements such as storm, floods, lightening, earthquake and such other act of nature which man is unable to foresee and prevent. 20. The burden to prove that the accident was an 'act of god' and further that they have used reasonable foresight and care in the carriage of the goods was on the defendants-respondents. In this regard, it is pertinent to refer the provisions of Sections 73 and 76 of the Indian Railways Act, 1890 which deals with the responsibility of the railway administration as carriers. 21. In this regard, it is pertinent to refer the provisions of Sections 73 and 76 of the Indian Railways Act, 1890 which deals with the responsibility of the railway administration as carriers. 21. As per provisions of Section 73 of the Indian Railways Act, 1890 (for short "the Act of 1890" hereinafter), the railway administration shall be responsible for the loss, destruction, damage, deterioration or non-deliverly in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following, namely:-(a) act of god; (b) act of war; (c) act of public enemies; (d) arrest, restraint of seizure under legal process; (e) orders or restrictions imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorised in this behalf; (f) act or omission or negligence of the consignor or the consignee or the agent or servant of the consignor or the consignee; (g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods; (h) latent defects; (i) fire, explosion or any unforeseen risk. However, as per the proviso to Section 73 even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid causes', the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods. Further, as per the provisions of Section 76 of the Act of 1890, a railway administration shall be responsible for loss, destruction or damage or deterioration of animals or gopds proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proved that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. 22. It is to be noticed that the defendants-respondents has not averred the necessary facts in the written statement, forming foundation for the plea that the accident occurred was only an act of god and no negligence can be attributed to the defendants-respondents. 22. It is to be noticed that the defendants-respondents has not averred the necessary facts in the written statement, forming foundation for the plea that the accident occurred was only an act of god and no negligence can be attributed to the defendants-respondents. Moreover, the best evidence available with the railway to establish the cause of accident was the enquiry report prepared after the accident. However, the said report was not produced by the defendants-respondents before the learned trial Court during the course of evidence of the parties. At the belated stage when the report was sought to be produced by making an application under Order 13 Rule 2 Civil Procedure Code the same was refused to be taken on record by the learned trial Court. I am in agreement with the contention of the learned counsel appearing on behalf of the plaintiff-appellant that on account of non-production of the enquiry report, the adverse inference deserves to be drawn against the defendants-respondents. It is settled law that if a party in possession of the best evidence which would throw light on the issue in controversy withholds the same then, Court may draw adverse inference even if the burden of proof does not lie on him. Reliance in this regard may be placed on a decision of the Hon'ble Supreme Court in the matter of (4) Gopal Krishanji Ketkar v. Mohammed Haji Latiff & Ors. (AIR 1968 SC p. 141) . 23. Thus, in the instant case, it was for the railway to establish that the accident occurred was an act of god and which cannot be attributed to any human negligence on the part of the employees of the railway or otherwise and further that the railway has used reasonable foresight and care in carriage of the goods during the transit. As noticed above, No evidence whatsoever has been produced by the railway to establish that the accident occurred was an act of god. Incidentally, I have also perused the enquiry report submitted by the railway alongwith an application under Order 13 Rule 2 of the Civil Procedure Code though, the same does not form part of the record. All that has been stated in the said report is that "it is established beyond doubt that the accident was caused on account of derailment of the front pair of wheels of wagon no. 17257 WR/CL. All that has been stated in the said report is that "it is established beyond doubt that the accident was caused on account of derailment of the front pair of wheels of wagon no. 17257 WR/CL. It has not been possible to establish the correct cause which made this wagon to derail as the wagon after derailing had toppled in the river bed of bridge No.378 from a height of about 30 ft.. followed by dropping of other wagons on top of each other, badly smashing the same. For this accident, no individual staff can be held responsible." 24. As a matter of fact, the railway intends to contend that since the cause of accident has not been established and on the basis of the enquiry it is not possible to hold any individual staff responsible for the accident occurred, therefore,' this ipso facto leads to the conclusion that the accident was vis major i.e. inevitably casualty or the act of providence. In my considered opinion, the railway cannot escape the liability for any accident merely by excluding the possibility of the normal causes and attributing it to some inexplicable causes. Unless, the element of human negligence is ruled out, railway cannot be permitted to take shelter under the plea of "act of god". 25. There is yet another important aspect of the-natter which needs to be mentioned here that the train carrying the disputed goods loaded from Tindivanam met with an accident between the Railway Stations Dalauda and Mandsaur on 18.11.1978 and on account of dearailment inter-alia the wagon in which the disputed goods were loaded had fallen in the river. It has been stated that after the accident, the disputed goods were brought to Dalauda Station and from there the same were loaded in wagon no.31326 which reached the destination at Railway Station at Sikar on 20.1.1979. The factum of damaged condition of the goods so also the loss of the quantified goods during the transit, being not in dispute, it was duty of the railway to place before the Court all relevant material to show as to how the consignment was dealt with during the period from the date of dispatch till the date of actual delivery. 26. There is no explanation whatsoever that if the accident occurred on 18.11.1978, then when the goods were taken from the spot of the accident to the Dalauda Railway Station. 26. There is no explanation whatsoever that if the accident occurred on 18.11.1978, then when the goods were taken from the spot of the accident to the Dalauda Railway Station. Obviously, the 'goods were lying on the spot before the same were brought to Dalauda Station. There is nothing on record to show that after the goods being brought to the Dalauda Station when the same were reloaded in wagon No. 31326 for the destination at Railway Station, Sikar. No material has been placed before the Court to show that due care and caution was taken to prevent any damage to the goods during the period from the date of accident till the date of delivery. Thus, besides the fact that the respondents have not been able to establish the cause of the accident and absence of negligence on their part, they have also not been able to establish that due care and caution was taken to preserve the goods which had dropped in the river bed as a result of the accident. Thus, in my considered opinion, the railway cannot escape the liability for damages on the plea of 'the act of god' as contemplated by Section 73 of -the Act of 1890. Thus, the finding arrived at by the learned trial Court on issue No- 5 without appreciating correct factual and legal position is not sustainable in the eye of law. Accordingly, issue no. 5 also deserves to be decided in favour of the plaintiff-appellant and against the defendants-respondents. 27. Coming to the quantum of damages, it is to be noted that on open delivery, the assessment of the damages was made by the railway authorities and for this purpose while categorizng the goods in different grades, the damage caused was computed in terms of money quantified at Rs. 13,512.70 which includes the value of the goods which were found short by 33.84 quintals. The contention of the defendants-respondents that the assessment report prepared by the authorities of the railways was without prejudice and subject to verification of original bill and actual loss, therefore, the same is not admissible in evidence, is devoid of any merit. If the liability is once established, the Court is not precluded from looking into the said assessment report as evidence of measure of damages for the damage caused to the goods on account of negligence or lack of due care and caution. If the liability is once established, the Court is not precluded from looking into the said assessment report as evidence of measure of damages for the damage caused to the goods on account of negligence or lack of due care and caution. It is settled law that where the goods entrusted to the railway for carriage are lost or damaged on account of its negligence, the test to determine the amount of damages is the prevailing market price of the commodity at the destination on the date of delivery. The market rate is a presumptive test because it is the general intention of the law that in giving damages for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed. 28. Thus, in my considered opinion, the quantum of the damages assessed by the authorities of the railway by taking into account the price of the goods as on the date of delivery appears to be just and proper. The plaintiff is entitled for damages quantified at Rs. 13,512.78/- Since the plaintiff has been deprived of the said amount of damages for all these years, therefore, he is legitimately entitled for the interest which is determined @ 6% p.a. from the date of delivery of the goods to the plaintiff-appellant i.e. 25.1.1979 till the date of actual payment. Thus, issue no.2 also deserves to be decided in favour of the plaintiff- appellant and against the defendants-respondents as aforesaid. 29. Lastly, coming to the findings on issue No.3, it is to be noticed that the plaintiff-appellant submitted his claim for damages vide communication dated 18.1.1979 (Ex.15) and before filing the suit on 12.11.1980, also served the defendants-respondents with a notice dated 25.1.1979 (Ex.17) under Section 80 of the Civil Procedure Court read with Section 78-B of the Act of 1890. The factum of the service of the notice has not even been disputed by defendants-respondents in their written statement. Further, communication dated 18.1.1979 (Ex.15) and notice dated 25.1.1979 (Ex.17) are the documents admitted by the defendants-respondents. The factum of the service of the notice has not even been disputed by defendants-respondents in their written statement. Further, communication dated 18.1.1979 (Ex.15) and notice dated 25.1.1979 (Ex.17) are the documents admitted by the defendants-respondents. As a matter of fact, while deciding the issue No.3, the learned trial Court has specifically held that service of notice stands admitted by the defendants-respondents, however, it opined that since the plaintiff-appellant is held to be not an owner of the goods, therefore, the service of the notice by him upon the defendants-respondents has no meaning. Since, the aforesaid finding of the learned trial Court holding that plaintiff-appellant was not an owner of the goods stands reversed and the service of the notice as aforesaid is not in dispute, the issue No.3 also deserves to be decided in favour of the plaintiff-appellant and against the defendants-respondents. 30. In the result, the appeal succeeds and it is hereby allowed with costs. The impugned judgment and decree dated 8.2.1989 passed by the Additional District Judge, Sikar in Civil Suit No.7/87 whereby the suit for damages preferred by the plaintiff-appellant has been dismissed is set aside. The suit of the plaintiff-appellant is decreed. The plaintiff-appellant will be entitled to the damages quantified at Rs. 13,512.70 alongwith interest @ 6% per annum w.e.f. the date of delivery i.e. 25.1.1979 till the date of actual payment.Appeal allowed with costs *******