The Indian Railways Act 1890 does not allow the Railways to save its skin and take shelter under the omnibus force majeure clause because to do so it must prove that it had taken all steps which a prudent bailee would take in similar circumstances in respect of his own goods.
In Union of India v. Maharashtra State Electricity Board, the Bombay High Court pointed out that 600 bags of stable bleaching powder sent by a supplier to the respondent was properly packed and sealed, but delivered after eight months of booking and that too in a damaged condition.
The extenuating circumstance, namely, act of God being responsible for the fire catching up in the wagon substantially destroying the material, was not accepted because according to the court, the onus of proving that the carrier had taken all reasonable steps to prevent the combustible material from catching fire was not discharged. Instead, the court pointed out, the Railways took shelter almost as a reflex action on the Act of God escape route.
Force majeure or act of God, the court pointed, out cannot be pressed in to wriggle out of one’s commitments unless it had taken all reasonable steps to protect the property entrusted to it.
(The author is a New Delhi-based chartered accountant)